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 A TEEATISE 
 
 ON THE 
 
 STATUTES OF ELIZABETH 
 
 AGAINST FRAUDULENT CONVEYANCES ; 
 
 AND THE LAW OF 
 
 VOLUNTARY DISPOSITIONS OF PROPERTY
 
 BAI.I.ANl VNT, HANSON AND CO. 
 LblNUUKCU AND LONUON
 
 A TREATISE 
 
 0\ TJTK 
 
 STATUTES OF ELIZABETH 
 
 AGAINST FRAUDULENT CONVEYANCES; 
 THE BILLS OF SALE ACTS, 1878 and 1882; 
 
 AND THE LAW 01-^ 
 
 VOLUNTARY DISPOSITIONS OF PROPERTY; 
 
 WITH 
 CONTAINING THE ABOVE ACTS AND 
 
 SOME UNPUBLISHED CASES (1700-1733) FROM THE 
 COXE AND MELMOTH 2fS. UET'ORTS. 
 
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 Second EDitiou. 
 
 By S. W. WOBTHINGTON, M.A. 
 
 OF CHEIST CHURCH, OXFOKD, AND THE INNER TEMPLE, BAERISTER-AT-LAW ; 
 EDITOU OF THE FIFTH EDITION OF GRIFFITH'S "MARRIED WOMEN'S PROPEETV ACTS.' 
 
 L N I) X : 
 
 STEVENS AND II A Y N E S, 
 
 llalii ^Dubli'sljcis, 
 
 BELL YAKD. TEMPLE BAR. 
 
 1887. 
 
 ^83361
 
 T
 
 IL 
 
 PREFACE TO THE SECOND EDITION. 
 
 Since the First Edition of this hook was published, there have 
 been great clianges in the Law relating to its suljject-raatter. 
 
 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 Ijy gift or contract ; and, by giving lici-, as lier 
 separate property, property in which, l)ut 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 vahie. 
 
 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 Elizabeth, such as Crosdeij v. Elworthy, Maclcay v. Douglas, 
 Ex ixirtc Mercer, In re Bieller, Price v. JenJans, Zee v. Mctthcws (in 
 Ireland), In re Foster and lister, and MaeJcie v. Herhertson, which 
 have materially altered or modified the law on the different points 
 they dealt with. 
 
 A large number of cases have been decided ui)on the com- 
 plicated subject of voluntary dispositions of pv(.pcrly uuall'ccled 
 by the Statutes of Elizabeth.
 
 Vi PREFACE TO THE SECOND EDITION. 
 
 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. 
 
 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 tlie more important parts of cha})ters 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 wliole of that part of llic book 
 which treats of voluntary dispositions of property unaffected by 
 the Statutes of Elizaljctli has been practically re-written and 
 very greatly enlarged. 
 
 Prerpicnt reference has been made to the decisions of the Irish 
 and American Courts, and in some cases reference has been made 
 to the decisions of the U})per Canadian Courts. The Statutes of 
 Elizabeth, or statutes which correspond to tliem, 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 wliich the English law appears 
 unsettled. 
 
 A full Table of Cases has been prefixed, witli references to all 
 the contemporary lieports, and a Table of Statutes Cited has 
 been added. In the A])pendix tlie 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 juepared, whicli it is 
 hoped will render tliis book practically useful. The cases have 
 been brought down to the be;,dnnin'' of October 188G. 
 
 s. w. -wuirrHixaTox. 
 
 b Stone Bni.niso,^, I^ixcoln's I.nx, 
 December 1886.
 
 PREFACE TO THE FIRST EDITION. 
 
 To an cmiiicuL ineinl)cr of llio Equily liar, ^vllOsc pupil he was, 
 the writer is gratefully indehted fur the selection of the sulijcet 
 diseussed in lliese pages. It is one on which, althougli it has 
 been incidentally touched upon by several writers of great repute 
 and authority, no cxliaustive treatise has appeared for more than 
 seventy years. This fact, added to the importance and general 
 interest of tlie sul»ject, 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 subndtting the 
 present work to the profession. 
 
 The writer cannot help expressing his surprise that the labours 
 of some far abler i)cn 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 liundred years of 
 judicial exposition and decision. By working almost entirely from 
 the reports of decided cases, the writer has aimed at attaining 
 originality, and, by taking every precaution to insure correctness 
 and cnmpletencss, has done all in his ])o\ver to ]troduce a work of 
 some value, as a convenient ami trustworthy book of reference.
 
 VIU PREFACE TO THE FIRST EDITION. 
 
 AVlierever practicable tlic opinions uf tliu judges have been 
 given in iheir 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. 
 
 The writer can only throw liimself on the indulgence of the 
 learned members of the profession, in the hope that the honest 
 and diligent endeavour to elucidate a sul)ject by no means free 
 from doubts and tlillieulties, may be allowed to weigh in tlie scale 
 against faults and shortcomings which lie fears will be found to 
 exist in the execution of his undertakimr. 
 
 3 Old Square, Lixcolx's Inn, 
 Januari/ 1871.
 
 TABLE OF CONTENTS. 
 
 PART I. 
 
 The General Operation of the Statutes of Elizabeth against 
 Fraudulent Conveyances, and the General Distinctions 
 between them. 
 
 PACE 
 
 13 KHz. c. 5, protects creditors and others— 27 Eliz. c. 4, protects purchasers— 
 What property they apply to— Ee-enacted in Ireland— New York— Adopted in 
 America- Upper Canada and elsewhere— 13 Eliz. c. .5, declares (he common 
 law— Simplicity of statutes, and liberal construction of— Construction of 27 Eliz. 
 c. 4, in England and America — Constructive fraud under 13 Eliz. c. .j, and 
 under 27 Eliz. c. 4—13 Eliz. c. 5, follows civil law— "Worki^ with Bankrui)tcy 
 Acts— How it differs from tliem— Difference between 13 Eliz. c. 5, and 27 Eliz. 
 c. 4— The fraudulent iulcnt shewn by circumstances at different times . . 1 
 
 PART II. 
 
 The Eights of Creditors under the Statute 13 Elizabeth, Cap. 5. 
 
 CIIAPTEU I. 
 What Kind.s of PRorERXY are within the Statute, and 
 
 WHAT KlXDS OF CONVEYAXCES. 
 
 All pro])erty liable to be taken in execution by creditor at time of conveyance— 
 Turchase in name of 'child, wife, tliird person— Separate property of married 
 women — Property subject to general power of appointment by deed — What 
 kinds of settlements within the statute 17 
 
 CHAPTER II. 
 
 What Voluxtauy Conveyances are Void as against Existing CREmTORS. 
 
 M circumstances when deed executed to be regarded— A^oluntary conveyances by 
 persons indebted, void— Test of indebtedness— Presumption of intention from 
 all circumstances ofscttlor— Insolvency- Voluntary settlement, when void under 
 Bankruptcy Acts— Only intent of donor material — A'oluntary settlement, when 
 good— Frecmau v. Pope— Voluntary settlements by traders— fVo.ss/f,v v. 
 Ehrorthj— American law— Pvelativc amounts of property settled and unsettled 
 —Conveyances for meritorious considerations on same footing as purely voluntary 
 —Liabilities at date of settlement— IIow estimated— Assets at date of settle- 
 ment— Jlust be then available— Same rules in America 35
 
 X TABLE OF CONTENTS. 
 
 ( JIAPTEU III. 
 
 ,. _ PACK 
 
 \ OLCNTART CONVEYANCES AS AGAINST SUBSEQUENT CkEDITORP. 
 
 raymcnt of debts due at date of settlement by substituting fresh ones — All credi- 
 tors let in on void conveyance — Subsequent creditor may set aside, when — 
 Statute includes creditors and others — Settlements by men about to trade — 
 Jladai/ V. Doufjlas—'MiXTks of fraud against future creditors— ticnerality — Con- 
 tinuance in possession — If fraudulent intent, indebtedness immaterial — Volun- 
 tary settlement void onh/ against creditors — So in America — Executor de son 
 tort— \'oluntary settlement pendente lite — To avoid forfeiture — To defeat execu- 
 tion — Sequestration— Dubt shortly due— Ex parte Mercer — Fraudulent intent, 
 how shewn — Benefit to settlor — Powers of revocation — Conveyances on meri- 
 torious consideration on same footing as voluntary 01 
 
 CilAl'TKK 1\-. 
 
 COXVEYAXCES lUU VaLUE AS A(iAIXST CkEDITOHS. 
 
 Deed for value only avoided if parties have notice of fraud — Who arc within pro- 
 viso in favour of bona fide purchasers without notice — Jn re ./o/(«5o»— IJuiden 
 of proof on impeacher— .Must be actual and express intent to defraud— Pro- 
 viso only extends to purchaser and persons claiming through him — Assignment 
 to trustees to pay creditors— ]\rarriage settlements avoided lor fraud of jiarties 
 — Kcvun V. Craii'ford •••........ 78 
 
 CliAPTKi; \. 
 
 BAVXiES OF FkAUD IX CoXVEYAXCES FOR VaI.UE. 
 
 Generality of gift — Conveyance of whole property to trustees for creditors to secure 
 past debts and future advances, or future advances only — Under IJankruptcy 
 Act — Under i:5 Eiiz. c. 5 — Ej- parte Games — Donor's continuance in posses- 
 sion — Scciecy — Conveyance pendente lite— To defeat execution- Fraudulent 
 preference— When it arises — Wliat it is— Under J]ankruptcy Acts— Preferences 
 of creditors — Under l-'J Eliz. c. o — Powers of revocation 93 
 
 CllAPTEIl \[. 
 
 CoNTlSUAXCE IX POSSESSION HoW lAlt A [MaRK OF FltAUI). 
 
 DilTerence between real and personal property — Such possession given as possible 
 — Difference between absolute and cor.ditional transfer of personal jiropcrty 
 — AVant of possession, when conclusive evidence of fraud — When not— Posses- 
 sion in pursuance of deed not presumptive evidence of fraud — Notoriety — 
 Secrecy— Keputed ownership— Continuance in possession after sale by sheriff- 
 Possession as tenant of purchaser .113 
 
 CIIAPTEi; \l\. 
 Bills ok Sale Acts, 1878 and 1882. 
 Iteason for and objects of— Act of 1H54 — Act of 1878— Act of 1882 only applies to 
 
 bills of sale to secure payment of money — How bill of sale may be avoided 
 
 Three classes of bills of sale — Kequirementsof Actof 1882 — Exparte Htunford — 
 Bill of sale under Act of 1882, if void, is so against all persons — And in toto— 
 Consideration — Proper amount of— Circumstances under which made — Act 
 of 1H82 applies wjiether right to immediate possession given or not— What is a 
 bill of sale under Act of 1H78— What is not— What are personal chattels— W'hat 
 arc not — Apparent possession only under Act of 1878 — Kcputcd ownership — 
 Kxecution—BegiHtratiou— Priority of bills of sale — Attestation— Aflidavit— 
 What is sufiicicnt description of grantor and attesting witness— Occupation— 
 Aftcr-acrpiired propcrty—J5ill of sale by company— Debenture . . . .135
 
 TABLE or CONTENTS. XI 
 
 f'UAPTRU VIII. 
 
 Who ake Extitled to Kamc as Creditors under the Statute 
 l:] Elizaiietii, c. 5. 
 
 PAGE 
 
 Creditors and otlicrs — (Jcncral creditors — Mortgagees — Ilusbainl aiid wife — Ances- 
 tor's creditors — Surety — Creditor under voUintiiry deed — N'oluutary assignee ot 
 debt — Forfeitures — Eepresentatives of creditors — Trustee in kmkruptcy — 
 Slierifl' — Creditors barred by accjuiesccnce — Or concurrence — Or notice — By 
 holding out deed to tliird parties as valid— Delay only barred by Statutes of 
 Limitation — licleasc when no bar 1G3 
 
 PART III. 
 
 The rviciiTs of Purchasers under the Statute 27 Elizabeth, Cap. 4. 
 
 CHAPTER L 
 
 What Coxveyaxces are Void against Subsequent Purchasers. 
 All voluntary conveyances void against subsequent purchasers — Even if with notice 
 — American law a;-: to notice — Conveyance for value, when void — Purchase in 
 name of third person — What property within the statute— What not— Volun- 
 tary conveyance to public or private charity — Application of purchase-money of 
 void settlement— Settlement, how far avoided by subsequent purchaser — Powers 
 of revocation ......••••••■ 187 
 
 CHAPTEPt n. 
 
 What Persons are Entitled to Relief as Purchasers within 27 Elizabeth, c. -i. 
 
 Qualification of purchaser— Mortgagee— Lessee— Assignee of lease— Purchaser by 
 ex post facto consideration — Consideration of marriagc^Hnsband not by jus 
 mariti— Cestui que trust, when— Judgment creditor not a purchaser — So in 
 America- Trustee for creditors— Grantee by general words — Trustee of volun- 
 tary deed — Voluntary grantor and vendor to purchaser must be same — So in 
 America .... ......... -17 
 
 PART lY. 
 
 What is a Valuable Consideration under the 
 
 Statutes oi' Elizabeth. 
 
 CPLiPTEU L 
 Consideration C ener ally. 
 
 Important only if deed bona fide— Consideration generally same under both statutes 
 —What is a valuable consideration— Nominal— Inadequate— 31 eritoi ions- 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. JenJcins—Lce v. J/n^/teH-.s- Assignment of lease- 
 holds nut for value under 13 Eliz. c. 5—Li re 7i'K?/(;»-— Settlements not on mar- 
 riage, when for value and when not— Consideration not in deed may support it- 
 Consideration tested when deed executed— Deed then for value cannot become 
 voluntary— Pwryci v. i%ei— Family arrangements, when upheld— No question 
 of consideration until grantee knows of deed 24c
 
 XU TABLE OF CONTENTS. 
 
 (JHAPTEPt II. 
 
 CONSIDEUATIOX DETWEEN IIlsBAXD AXU WiFE. 
 
 Contract between husband and wife befoie 1883 — After 1883 — Wife must have 
 property at time of contract — Bargain between husband and wife made post- 
 nuptial settlement by wife for value — 7h re Foster and Lii^ter — tShurmur v. 
 t'<edgirick — .Same principles apply in Ireland — Effect of Alarried "Women's Pro- 
 perty Act, 1882 — Wife's equity to settlement — Separation deeds— Covenant of 
 indemnity by trustees for wife or now by her alone, voluntary or for value — lieleasc 
 by husband of marital rights, voluntary or for value — Other considerations — 
 Compromise of suit fur divorce — Pelease of claim to alimony — licciprocal covc- 
 iiant — Compromise of indictments and actions — Agreements for separation, 
 when void — Subsequent cohabitation avoids separation deed .... 281 
 
 CHAPTER 111. 
 
 Voluntary C'oxveyaxces made good by Coxsideratioxs arising 
 subsequextly. 
 
 Deed originally voluntary may become a deed for value — Clarice v. iri7/o/<— Volun- 
 tary deed voidable and not void — When sole or principal inducement for mar- 
 riage—Presumption of such inducement — Against purchasers by sale or mort- 
 gage — When voluntary grantee has altered bis position on faith of deed — Does 
 same principle apply as against creditors ? — Eights of "creditors and others " 
 and of purchasers, when lost — Proviso under statutes protects purcha.ser from 
 grantor or grantee — American view — Consideration does not relate back to date 
 of deed — Between voluntary conveyances priority of date gives title — AVhen 
 purchaser from graritee prevails over purchaser from grantor — ^Vmerican view 
 — Creditors' deeds — Failure of consideration by matter ex post facto docs not 
 make deed voluntary 315 
 
 CHAPTER IV. 
 The Nature axd E.\text of the Coxsidekation or Marriage. 
 Marriage a contract— Highest consideration known to law — Differences between 
 marriage and other valuable consideration — Third persons interested— Married 
 persons cannot be replaced in statu quo— What settlements upheld by marriage 
 — Consideration supports all limitations to husband, wife, and issue of marriage 
 only — Exceptions in favour of settlement by widow or widower on children or 
 issue of former marriage — And by husband or wife on issue of future marriage 
 — True view, all limitations in marriage contract question of bargain— Bargain 
 oidy inferred in favour of husband, wife, or issue of then intended marriage 
 — Presumption of bargain, when made — When not made — Limitations to 
 collaterals 33I 
 
 CHAPTER V. 
 
 Post-xuptial Retteemexts axd Ante-xuptial Aoreemexts. 
 Post-nuptial settlements, when for value— Pclease or disclaimer of power by mar- 
 ried woman— Post-nuptial settlement by married woman whether now voluntary 
 —In favour of whom for value— Ante-nuptial agreement— Post-nuptial settle- 
 ment founded on parol ante-nuptial agreement before Statute of Frauds— Since— 
 Marriage not part performance— J'arol ante-nuptial agreement does not set up 
 post-nuptial settlement— 11 V»v/e/f v. JoTtcs—Trowcll v. A7<e«/o?i— 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 . 3G5
 
 TABLE OF CONTENTS. Mil 
 
 PART V. 
 
 VoLUNTAiiY Dispositions of rROPF.UTY independently of the 
 Statutes of Elizabeth ; now validly made, and in what 
 Instances tiiey are liable to be set aside. 
 
 CHAlTEi; 1. 
 
 VOLUXTAKV AgUKEMEXTS AND CoYEXANTS ; DEFECTIVE ExECXTIOX OF I'OWERS. 
 
 PAGE 
 
 V^oluntar}' agreements and covenants not enforced — Contract for value generally 
 only enforceable by a party to it — By pei'son benefited only if ante-nuptial— 
 llule 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 liability — Voluntary covenants . , 389 
 
 CHAPTER IT. 
 
 Gift op Legal and Equitable Ixtekest Intek Vivos. 
 
 Complete gift inter vivos, how made — Voluntary declaration of trust — Classification 
 of cases — Gift of legal and equitable interest, wheu complete — Court will not 
 alter intended mode of gift — Ciift of chattels by parol, with or without deliver}- 
 — By deed — Donatio mortis causa — Choses in action when legally assignable — 
 Leaseholds and real estate — Stocks and shares — Imperfect gift not upheld as 
 trust — Warriuer v. lio'jers — Iiichar<h v. Delbrhlge — Hearth ij v. }\lchohoa 
 — Transfer by husband to wife — Effect of Married AV'^omen's Property Act, 1882 
 — In re BretoiVs Estate — Cases where donor equitable owner with power to 
 procure transfer of legal estate — Gift, when complete — True test, intention 
 of settlor at time — Ilesulting trust to settlor — Transferee whether trustee — 
 t^ltrong v. Bird — Assignments to trustees to pay debts ..... 402 
 
 CHAPTEP. ill. 
 
 Gift of Equitable Interest Inter Vivos. 
 
 Donor, ef/at owner, declares self truulce for doneo— What declaration of trust must 
 be — Declarations of trust, when valid — When invalid — Xotiee to cestui que 
 trust not necessary — Trusts, how declared — Of lands, tenements, and heredita- 
 ments — Of personal estate — Evidence as to donor merely equitahle owner — 
 Assignment to donee direct — Donor's trustee a trustee for donee — Assignment to 
 new trustees for donee — Nature of interest — Mech v. Kettleicell — Kclceirich v. 
 Mannimj — Test of valid assignment — 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 purpose — Gift partly perfect — Voluntary deed operates from 
 delivery — Donor's subsequent acts immaterial — Probate duty .... 438
 
 XIV TABLE OF CONTENTS- 
 
 cHAI'TF.]; IV. 
 
 Wlir.X AND TO WHAT KXTPNT TIIK AliSr.Xf'i: OF A VAI.PABLr. CoxsioF.nATiox 
 
 WILL INVALIUATK A CoMl'LrTK VoLCXTAIlY Dlr^POSITinx Or PrOPKRTY. 
 
 PAGK 
 
 Complole disposition of property only void umlcr Rtatntes of Elizabeth, Bankniptcy 
 Act, or for fraud — Construction of voluntary deed same as if for value — CJood 
 between parties — Void against creditors and purchasers only so far as to satisfy 
 their claims — Volunteer may redeem suLsequeiit 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 
 bv fraud of grantee — Subsequent acts of donor do not in general affect validity 
 of deed — Subsequent dispositions of same property — Voluntary deeds to take 
 cft'ect on marriage 4G0 
 
 CH.VP'J'ER \'. 
 Gifts voidaklk isetwkkn thk Parties foii Fraid, Uxdue Influence, &c., 
 
 I'RACTI.SED ox thk DoXOIt. 
 
 Fraud between parties — Deed executed but not understood by donor — Voluntary 
 settlement, when rectified— Voluntary disposition in favour of person in con- 
 fidential relation to donor voidable — Harden 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 positions upheld — ilarks of undue influence — 
 Intention of donor, how produced — 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 per.sons, 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 
 
 PART YI. 
 
 Miscellaneous Points, Practice under the Statutes 
 OF Elizabeth, and Costs. 
 
 CHAPTER I. 
 
 MiSCELLAXEOrs PoiXTS AND PrACTICK. 
 
 Specific performance of contract for sale under 27 Eliz. c. 4, when enforced — 
 Parties to the .action— Kvidence of debts under 1?> Eliz. c. 5 — Burden of proof 
 generally on creditor — Inquiries as to debts — Who can bring action under 13 
 Eliz. c. 5 — Existing creditor — Subsequent creditor— Trustee in bankruptcy — 
 Executor — r*ommittee of lunatic— Corporation — Company — Li(iuidator of un- 
 registered company — Trustee of settlor can impeach sotllcmeiit — 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 
 ag.ainst creditors or purchaser — Cancellation and reconveyance — Earl}- concur- 
 rent jurisdiction of law and equity — Proceedings now usually in Chancery 
 Division — Creditor not estopped by taking a benefit — Fraud nuist be alleged — 
 Settlement partly good, partly void — Marshalling applies only in favour ot 
 volunteers- Contribution, when enforced against volunteer — Kcr v. Ker — Con- 
 struction of penal clauses of these statutes — ('an <lefendant be compelled to 
 answer oh.v interrogatories — Production of docum-.uts — Whether enforced — 
 Bunnv.Bunn — Parties grieved — Penalties under these statutes . .511
 
 TABLE OF CONTENTS. XV 
 
 ('llAJ''l'F.i; 1[. 
 
 PAGB 
 
 Costs now in discvotinn nf Court — Umlcr I'.'i F.liz. c. 5— Under 27 Eliz. c. 4 — Tn 
 cases of undue influence and fraud ......... 'A-i 
 
 APPENDIX. 
 
 NO. 
 
 I. 13 Kliz. c. o (Crcditor.s) (From "Tlic Statutes at Large") .... 555 
 II. 27 Eliz. c. 4 (rurchascrs) „ „ „ . . . . 557 
 
 III. 41 & 42 A'ict. c. 31 (Bills of Sale Act, 1878) 501 
 
 IW 45 & 4G A'ict. c. 43 (Bills of Sale Act, 1878, Amendment Act, 1882) . . 5G'i 
 
 Ca.ses Fitojr Tin; Coxe an'd Melmotii MSS., a.d. 1700-33. 
 
 V. Stokes V. Stokes — Articles of Reparation — Covenant of Jndnnnilii — 
 
 Ojf'er h)/ Jmshand to tale 7rife hack — Costs 573 
 
 W. Vernon ?'. Yalden — Bond — Trust declared — Subsequent assiijninenl . . 574 
 Vll. iiarnardiston r. Simpson — Deed of separation — Compromise of suit for 
 
 divorce — Proof of considercction 575 
 
 VI II. Stanfield 2J. Miller — IJond — Delivery — Incomplete gift .... 570 
 
 IX. Cracherode v. Hallam — Ilushaud and loife — Marriage settlement — Post- 
 nuptial resettlement — Consideration ....... 57G 
 
 X. Iligdcn V. "Watkinson — Chose in action — Assignment — Assignees in 
 
 Ijanln'uptcji ............ 577 
 
 XI. Witherden r. Juniper — Incomplete gifts — iSuLsetjuent creditors . . . 579 
 
 XII. Anon. — Imp)er feet gift of money 579 
 
 XIII. Hock?'. Dade — Voluntary settlement — Power of rcrocation — Sulisequent 
 
 creditors — Children by former husband — Marshalling .... 579 
 
 INDEX 581
 
 TABLE OF CASES. 
 
 Names op Cases. 
 
 Where Reported. 
 
 Abbott V. Burbage 
 
 — V. Straiten 
 Ackwortb v. Kempe 
 
 Acraman v. Corbett 
 Acton V. Woodgate 
 
 Adames v. llallett 
 
 Adams v. Adams 
 
 — V. Claxton 
 
 — V. Graham 
 
 Adney v. Field ... 
 Agra Bank v. Barry 
 Airey v. Hall 
 Aldborougli v. Trye 
 Alden ik Gregory 
 Alderson r. Maddison 
 
 — V. Temple . 
 Aldridge v. Duke 
 
 — V. Forbes . 
 Alexander v. Brame . 
 Alford V. Lea ... . 
 Allam, Ex parte 
 Allen V. Arme ... . 
 
 — V. Bennett 
 
 — V. Gilby ... 
 
 — ?'. M'Pherson . 
 
 — V. 8tear ... 
 
 — V. Thompson . 
 Allhusen v. Laboucbere 
 
 Allibon i\ Attorney- 
 General 
 
 Akager ?;. Spalding ... 
 Alsop, Ex parte 
 
 Alton V. Harrison 
 
 Amiss V. Witt ... 
 
 2 Bing. N. C. 444 ; 2 Scott, 656 ; 1 Hodges, 
 
 448 
 
 3J. &Lat, G03 
 
 1 Doug. 40 
 
 IJ. &H. 410 
 
 2 My. & K. 492 
 
 L. R. G Eq. 4(38 ; 18 L. T. (N.S.) 789 
 
 Rep. 
 
 Q. B. D. 174 
 
 801 ; 29 \\. R 
 ) 349 ... 
 2235 
 
 8 Ir. Ch. Rep. 41 
 
 G Vcs. 225 
 
 33 L. J. (N.S.) Q. B. 71; 
 372; 9L. T. (N.S.) GOG 
 
 2 Amb. 654 
 
 L. R. 7 H. L. 135 
 
 3 Sra. & Giff. 315 
 7C1. &F. 436 
 
 2 Eden, 280 
 
 8 App. Gas. 4157 ; 7 
 49 L. J. (N.S.) Ex, 
 105; 43 L. T. (N.S.) 
 
 1 W. Bl. 660 ; 4 Burr. 
 
 Finch, 439 
 
 9 L. J. (N.S.) Cb. 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. 5 Ch. 577 ; 23 L. T. (N.S.) 437 
 
 3 Dowl. 143 
 
 IH. L. C. 191 
 
 2 Cro. Eliz. 645 
 
 1 H. & N. 15 ; 25 L. J. (N.S.) Ex. 249 
 3Q. B. D. 654; 47 L. J. (N.S.) Q. B. 
 
 819 ; 27 W. R. 12 ; 39 L. T. (N.S.) 207 
 
 Colics, P. C. 393 
 
 4 Bing. N. C. 407 
 
 1 D. F. & J. 289 : 29 L. J. (N.S.) Bkcy. 
 
 7; G Jur. (N.S.) 281 
 
 L. M. 4 Cb. 622 ; 38 L. .1. (N.S.) Ch. 
 669 ; 17 W. R. 1034 ; 21 L. T. (N.S.) 
 2S2 
 
 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 
 
 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 
 
 373, 375, 384, 385 
 
 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, 
 
 111, 123, 125 
 
 409
 
 XVIU 
 
 TABLE OF CASES. 
 
 Names of Cases. 
 Ancona r. Kogers 
 
 Anderson v. Elsworth 
 
 — V. .Miiltby ... 
 
 — r. Koberts ... 
 Andrew's Trusts, Ja re 
 
 Andrews, In re 
 
 — i: Marris ... 
 Angier v. Angier 
 Annaudale r. Harris... 
 Anonymous Case 
 
 Aiistey V. Newman ... 
 Austis, /» re 
 
 Antrobus V. Smith ... 
 
 Apbarry v. Bodiiigbam 
 Appleton V. Campbell 
 Archer r. Hudson 
 Ardglasse v. Muschainp 
 
 — V. Pitt 
 Argol •('. Cheney 
 Armitage, Ex jjarte ... 
 
 Armstrong, In re 
 
 — V. Armstrong 
 
 — V. Baldock... 
 
 — V. Tamperon 
 Arnold v. Mayor of I 
 
 Gravesend ... J 
 Arthur i\ Clarkson ... 
 Artistic Colour Print- 1 
 
 ing Co.. In re ...J 
 
 Arundell v. Phipps ... 
 
 Ashe V. Low 
 
 Ashtield v. Ashfield ... 
 Ashford v. Tuite 
 Ashtou V. Elackshaw 
 
 — V. Bretland ... 
 Ashwell V. Lonii 
 Askew V. Lewis 
 
 Asphaltic Wood Pave- 
 ment Co., //( re 
 Assaby r. Manners ... 
 
 Atkins V. Essex 
 
 Atkinson v. ^Maling ... 
 
 — V. Smith 
 Attenborough v. | 
 
 Thompson | 
 
 Alt. -Gen. v. Corpora- 
 liuu of Newcastle ... 
 
 WUEKE EePOUTED. 
 
 1 Ex. U. 292 ; 46 L. J. (N.S.) Ex. 121 ; 
 24 W. 1{. lOOU ; 35 L. T. (N.S.) 115... 
 
 3Giff. 100 I 
 
 2 Ves. 244 
 
 18 .Johns. 513 
 
 7 Ch. D. G35 ; 20 W. P. 572 ; 38 L. T. 
 (N.S.) 137 
 
 30 Ch. 1). 159 ; 54 L. J. (N.S.) Ch. 1049 ; 
 34 W. 11. 02 ; 55 L. T. (N.S.) 422 ... 
 
 1 Q. B. 3 
 
 Prec. Ch. 497 ... 
 
 2P. Wms. 432 
 
 Freem. Ch. 197 
 
 1 Vent. 257 
 
 2 Po. Rep. 173 
 
 Dyer, 294 
 
 Co. Litt. 3 b 
 
 Prec. Ch. 101 
 
 App. No. XH 
 
 39 L. J. (N.S.) Ch. 769 
 
 31 Ch. 1). 590 ; 54 L. T. (N.S.) 742 ... 
 
 12 Ves. 39 -' 
 
 Cro. Eliz. 350 
 
 2 Car. &P. 347 
 
 7 Beav. 551 ; 8 Jur. 701 
 
 1 Vern. 237 
 
 1 Vern. 238 ... .^ 
 
 Latch, 82 
 
 17 Cb. D. 13 ; 29 W. P.. 722 ; 44 L. T 
 (N.S.) 202 
 
 34 W. P. 709 
 
 Page. 
 
 17 Q. B. D. 521 
 
 L-. P. 8 Eq. 1 I 
 
 Gow, 33 
 
 19 W. P. 558 ; 24 L. T. (N.S.) 275 ... 
 2 K. & J. 574 ; 25 L. J. (N.S.) Ch. 530 ; 
 
 2 Jur. (N.S.) 703 
 
 35 Beav. 458 ; 14 W. P. 754 ... 
 
 21 Cii. D. 510 ; 31 W. P. 149 ; 48 L. T. 
 
 (N.S.) 40 
 
 10 Ves. 139 / 
 
 Hayes & J. 287 
 
 2 Vern. 287 
 
 7 Ir. C. L. Pep. 91 
 
 L. P. 9 Eq. 510 ; 39 L. .J. (N.S.) Ch. 
 " " ' ' ^ ' (N.S.) 
 
 .N.S.) ( 
 205 ; 18 W. 11. 307 ; 21 L. T. i^.\ 
 197 
 
 9 Mod. 59... ' 
 L. P. 2 P. & D. 477 
 
 10 Q. B. D. 477 ; 31 W. P. 507 ; 48 
 L. T. (N.S.) 534 
 
 .32 W. P. 10 ; 49 L. T. (N.S.) 159 
 Dyer, 235 a 
 14 Ves. ,-,42 
 2 T. P. 402 
 3L>eG. &.r. 186... 
 
 2 H. & N. bm ; 27 L. J. Ex. 23 ; 3 Jur. 
 (N.S.) 1307 
 
 12C1. &F. 402 ... 
 
 151 
 
 241,490,499,502, 
 
 552 
 
 170 
 
 325, 326, 329 
 
 44 
 
 282 
 
 173 
 
 301 
 378, 383 
 
 394 
 34 
 
 69 
 
 70 
 203, 236 
 
 375 
 389, 476 
 408, 535 
 
 390 
 
 390,413,414,428, 
 
 454, 475 
 
 100, 333 
 
 409 
 485, 490, 504, 551 
 
 504 
 
 5U5 
 
 192 
 
 523 
 31 
 
 401, 485, 490, 497, 
 
 500, 501 
 
 122, 120, 127 
 
 442, 458 
 
 226 
 398, 441 
 
 153 
 
 113,114, 119,125, 
 
 281, 340, 532 
 
 204 
 
 17, 21 
 J 49 
 
 125, 128,147,151, 
 153, 340 
 
 220 
 498 
 
 148, 154 
 
 102 
 332 
 491 
 115 
 247, 284, 293 
 
 159 
 
 202, 206
 
 TABLE OF CASES. 
 
 XIX 
 
 Names op Cases. 
 
 Att.-Gen. v. Eastlake... 
 
 — r. Magdalen 
 
 Coliego ... 
 
 — 11. Wliorwood 
 At well V. Harris 
 Atwood V. Chichester... 
 
 Aulton V. Atkins 
 Ayerst v. Jenkins 
 
 Aylett V. Ashton 
 Ayliffe ?'. Tracy ... 
 Aylward v. Kcaruey 
 
 Eaber's Trxists, In re 
 
 Back V. Gooch 
 
 Baddeley v. Baddeley 
 
 Bailey, Ex parte 
 
 — V. Gould 
 
 Bainbridge v. I'irmstonc 
 
 Bainbrigge ?.'. Browne 
 
 Bainton v. Ward 
 Baker v. Bradley 
 
 — V. .Tennings 
 
 — V. Monk 
 
 — ?'. Loader 
 
 — V. White 
 
 Baldwin v. Cawthorne 
 
 Bale V. Newton 
 
 Bail V. Burnford 
 
 Bamford v. Baron 
 
 Banbury's Case 
 
 Banbury v. White 
 
 Bandon v. Becher 
 Banfieid v. Whipple ... 
 Bank of England v. 
 
 Lunn 
 
 Banner, Ex parte 
 
 Barber V. Mitchell ... 
 Barclay, Ex parte 
 
 Barham v. Clarendon . . . 
 Barker's Estate, In re 
 Barkworth v. Young ... 
 
 Barling 17. Bishopi^ ... 
 Barlow u. Ileneage ... 
 
 Where Reported. 
 
 11 Hare, 205 
 
 ISBeav. 223 
 
 1 Ves. 535 
 
 2 Ro. Kep. 91 ; 2 iio. Ab. 700 '. 
 
 3 Q. B. D. 722; 47 L. J. (N.S.) O. IJ. 
 300; 2(3 W. B. 320; 38 L. T. (N.H.) 
 48 
 
 18C. B. 249 
 
 L. R. 16 E(j. 275 ; 42 L. J. (N.S.) Ch. 
 690 ; 21 W. R. 878 ; 29 L. T. (N.S.) 
 126 
 
 1 My. &Cr. Ill 
 
 2 P. Wras. 65 
 
 2 Ball &B. 463 
 
 L. R. 10 Eq. 554 ; 18 W. R. 1131 
 4 Camp. 232 
 
 9 Ch. D. 113 ; 26 \V. 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. 
 &IL 600 
 
 18 Ch. D. 188 
 
 2 Atk. 172 
 
 2 Sm. & Gi£f. 531 •[ 
 
 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 Vein. 215 
 
 19 Ves. 166 
 
 iVern. 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 
 
 3 CI. &F. 479 
 
 15 Allen (Mass.), 13 
 
 15 Ves. 569 
 
 2 Ch. b. 278 : 45 L. J. Bkcy. 73 ; 24 
 
 W. R. 470; 34 L. T. 199 
 
 2 Dowl. P. C. 574 
 
 5 De G. M. ik G. 403 ; 25 L. J. Bkcy. 1 ; 
 
 1 Jur. (N.S.) 1145 
 
 10 Hare, 126 
 
 44 L.J. (N.S.) Ch. 487 ■ 
 
 4 Drew. 1 ; 26 L. J. Ch. 153 ; 3 Jur. ) 
 (N.S.) 34 J 
 
 29 Beav. 417 -[ 
 
 lunch, Prec. Ch. 211 
 
 Page. 
 
 20G 
 
 531 
 412, 425 
 
 267 
 
 26, 27, 282 
 400 
 
 468, 409, 477 
 
 27 
 
 369, 389 
 
 494 
 
 435 
 181 
 
 407,418,421,442 
 
 252 
 51 
 
 253 
 484, 485, 489, 490, 
 496, 497, 504, 505, 
 
 551 
 
 535 
 
 265,276,489,491, 
 
 504, 549 
 
 394 
 
 248 
 
 493, 551 
 
 469 
 
 181 
 
 476 
 
 267, 285 
 
 12(1, 181 
 
 188, 212, 213 
 
 157 
 
 507 
 99 
 
 18 
 
 27G 
 174 
 
 115 
 
 .341, 342, 361 
 
 188, 280, 323, 324, 
 
 393 
 
 379, 380,381,382, 
 
 383, 393 
 
 70, 72, 74, 107, 
 
 515, .521, 530 
 
 453 
 
 h 2
 
 XX 
 
 TADLE OF CASES. 
 
 Xaues of Cases. 
 
 Barnard v. Ford 
 
 Barnardistou v. Simp- 
 son 
 
 Barnes r. Hedley 
 Barrack v. McCullocli 
 
 Barrett r. Hartley ... 
 
 Barron ?•. f'onstabile ... 
 Banow i-. Barrow 
 
 — V. Ciray 
 Bartlett ?•. Williams . . . 
 
 Burton v. Vanheytliuy- 
 sen 
 
 Barwick v. Reade 
 
 Basse r. Gray 
 
 Basset c. Nos worthy ... 
 Batcock r. Eckler 
 Bateman v. Countess of 
 
 Ross 
 
 Bates V. Dandy 
 
 — V. (iraves 
 
 Bath and ilontague's 
 Case 
 
 Battersbec v. Farring- ) 
 ton I 
 
 Bawdes v. Amhurst ... 
 
 Baxter r. Pritchard ... 
 
 Bayley r. Boulcott ... 
 Bayspoole v. Collins ... 
 
 Beaden v. King 
 Beak v. Beak 
 
 Beales v. Tennant 
 
 Beamish v. Pliaire 
 Beanland v. Bradley ... 
 Beard v. Nuttall 
 Beasley r. Magrath ... 
 
 Beatson v. Beatson ... 
 
 Beattie r. Lord Ebury 
 
 Beauchamp ?7. Winn... 
 Beaumont v. Keeve ... 
 
 — V. Thorpe ... 
 Beavan v. Earl of Ox- 1 
 
 ford ] 
 
 Beech v. Keep 
 
 Jiei!cher v. Jlajor 
 Bectenson, J'Jx jiarle... 
 Belcher v. IVittie 
 Beldings r. lieed 
 
 Where Reported. 
 
 L. R. 4 Ch. 247 ; .38 L. J. (N.S.) Ch. I 
 071 ; 17 W. K. 478 ; 20 L. T. (N.S.) ; 
 28'J 
 
 App. Xo. VII 
 
 I 2 Taunt. 184 
 
 i 3 K. & J. 117-8 ; 20 L. J. Ch. 105 ; I 
 ' 3. 1 ur. (N.S.) 180 .. ... [ 
 
 L. R. 2 Eq.78',1 ; 12 .Tur. (N.S.) 420; 14 
 L. T. (N.S.)474 
 
 7 Ir. Ch. Rep. 4(17 
 
 18 Beav. 52t» 
 
 2 Cro. Eiiz. 551 ... 
 [ 1 Pick. (Mass.) 288 
 
 Page. 
 
 29, 300 
 
 h. 228; 40 L.'J. (X.S.) Ch.T 
 iW. R. 3G3; 25L.T. (N.S.) - 
 
 11 Hare, 12G -l 
 
 1 H. Bl. C27 
 
 2 Yern. Git3 
 
 Finch, 102 
 
 24 New York, G23 
 
 1 Dow. 235 
 
 2 Atk. 207 
 
 2 Yes. Jun. 292 
 
 3 Ch. Ca. lOG 
 
 iSw. lOG I 
 
 Prec. Ch. 402 
 
 3 X. & M. G38 ; 1 A. & E. 45G ; 3 L. J. 
 (X.S.) Q. B. 185 
 
 4 Riiss. 345 
 L. R. G Ch. 228 
 
 289; 19 
 
 282 ; 
 
 9 Hare, 499 
 
 L. R. 13 Eq. 489; 41 L. .J. (X.S.) Ch. 
 
 470; 26 L. T. (X.S.) 81 
 
 29 L. J. (X.S.) Q. B. 188 ; G Jur. (X.S.) 
 628 ; 1 L. T. 295 
 
 11 Ir. Eq. Rep. 559 
 
 2 Sm. &G. 339 
 
 1 Yern. 427 
 
 2Sch. &L. 31 
 
 12 Sim. 281 - 
 
 7 K R. H. L. 102; L. R. 7 Ch. 777; 41 
 L. .1. (X.S.) Ch. 804 ; 20 W. R. 994 ; 
 27 L. T. (X.S.) 398 
 
 L. R. G H. L. 234 ; 22 W. R. 193 
 
 8 Q. B. 483; 15 L. J. (X.S.) Q. B. 141 ; 
 10 Jur. 284 
 
 1 Yes. 27 
 
 6 De G. M. & G. 492 ; 25 L. J. (N.S.) ) 
 
 Ch. 299; 2 Jur (N.S.) 121 ... j" 
 
 18 Bcav. 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. GO 
 
 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 
 C7, 531 
 
 394 
 
 36, 45, 324, 368, 
 
 378, .383, 517 
 
 369, 372 
 
 12,96 
 
 444 
 82, 84, 190, 193, 
 218, 247,250,251, 
 
 2GG 
 
 508 
 
 409 
 
 160 
 
 229 
 
 485, 491 
 
 167, 390 
 
 490 
 
 222, 405, 445, 447, 
 
 476, 477, 496 
 
 385 
 507 
 
 469 
 
 62, G3 
 
 213, 219,224,226, 
 
 227 
 
 413, 427, 429, 446 
 
 442, 459 
 
 142 
 33, 252 
 
 161
 
 TABLE or CASES. 
 
 XXI 
 
 Names of Cases. 
 
 Bell, Ex parte ... 
 
 — V. Simpson 
 
 — V. Stocker 
 
 — V. Tliompson 
 Bellamy v. Saull 
 
 Bcllasis, III re ... 
 
 Bell's Estate, In re .. 
 75eiil)o\v «. Townsend.. 
 lieiiliam v. Keano 
 
 Bciinet w. Musgrove .. 
 Bennett v. Bernard ., 
 Bcntley, Ex parte .. 
 
 — V. Mackay .. 
 
 Benton v. Tliornhill ., 
 Bcnyon v. Benyon 
 
 Berdoc v. Dawson 
 Beresford i\ Hobson .. 
 Berkeley, lie 
 
 Berry, E.r parte 
 Berwick, Ex parte .. 
 
 Besant v. Wood 
 
 Bessey v. Windham .. 
 
 Bethel v. Stanhope .. 
 Beverley's Case 
 Beverley v. Gatacre .. 
 Beyfns i'. Bullock 
 J}ianchi v. OfFord 
 Biddulph V. Goold .. 
 
 Bill V. Cureton 
 
 Billage v. Southce .. 
 Billiter r. Young 
 Bindley v. MuUoney .. 
 
 Biniiington v. Wallis 
 Birch V. Pilagrave 
 
 Bird V. Blosse 
 
 Bird's Trusts, In re .. 
 Biscoc V. Kennedy .. 
 Bishop, Ex parte 
 
 Bissell V. Hopkins 
 Bizzey v. Flight 
 
 Black & Co.'s Case ., 
 Blackic v. Clark 
 Blackburn, Ex parte 
 
 Blackborn v. Edgeley 
 Blackwell v. England 
 
 Blagravc v. Routh .. 
 
 WlIKUE ReI'ORTEI). 
 
 J. (N.S.) Q. 
 8 L. T. (N, 
 
 B. 
 
 .S.) 
 
 b'. 
 
 S.) 
 
 19 W. K. G99 ; 24 
 
 Ch. 
 685 
 
 1(H. &J. 282 
 
 2 IT. & N. 410 ; 2(3 L. J. Ex. .3i;3 
 
 10 Q. B. D. 129 ; 52 L. J. (N.S.) Q 
 49 ; 31 W. IX. 183 ; 47 L. T. (N 
 624 
 
 W.N. (1878) 121... 
 4 Best & S. 265 ; 32 L 
 
 366 ; 11 W. K. 800 
 
 534 
 L. R. 12 iiq. 218 
 
 L. T. (N.S.) 466 
 
 11 L. II. ir. 512 
 
 1 My. & K. 506 
 
 3 D. E. & J. 318 ; 31 L. J. (N.S.) 
 129; 8 Jur. (N.S.) 604; IJ. & H 
 
 2 Ves. 51 
 
 10 Ir. Eq. Rep. 584 
 
 34W. R. 579 
 
 15 Beav. 12 
 
 7 Taunt. 149 ; 2 Mars. 427 
 
 1 P. P. 447 ; 45 L. J. (N.S.) P. 93 ; 24 
 W. R. 9.30 
 
 34 Beav. 603 
 
 1 Mad. 362 
 
 L. R. 19 Eq. 467 ; 44 L. J. (N.S.) Ch. 
 554; 23 W. R. 687 
 
 19 Ves. 218 
 
 29 W. R. 292 ; 43 L. T. (N.S.) 576 ... 
 
 12 Ch. D. 605 ; 40 L. T. (N.S.) 445 | 
 r, Q. B. 166; 14 L. J. (N.S.) ) 
 
 Page. 
 
 Q. B. 7 
 
 2 Cro. Eliz. 810 
 
 2 Dyer (Vail, ed.), 245 b, n 
 
 2 Rolle, .305 
 
 L. R. 7 Eq. 391 
 
 17 Q. B. D. 484 
 
 11 W. R. 882 ; 2 New Rop. 420 
 
 2 My. &K. 503 -| 
 
 9 Hare, 534 
 
 6E. &B. 1 
 
 L. R. 7 Eq. 343; 17 W. R. 510; 20 
 
 L. T. rN.S.) 263 
 
 2 B. & Aid. 650 
 
 1 Arab. 264 
 
 2 Vent. 361 
 
 3 Ch. D. 214 
 
 1 P.ro. C. C. 17, n 
 
 L. R.8 Ch. 718 ; 42 L. J. Bkcy. 107 ; 21 
 
 W. R. 716; 28 L. T. 862 
 
 3 Cowen (Sup. Ct. of N.Y.) 166 
 
 3 Ch. D. 269 ; 45 L. J. (N.S.) Ch. 852 ; 
 
 24 AV. R. 957 
 
 L. R. 8Ch. 262 
 
 15 Beav. 595 
 
 L. R. 12 Eq. .358 ; 40 E. J. Bkcy. 79 ; I'J 
 
 AV. R. 973; 25 L. T. 76 
 
 1 P. W. 606 
 
 8 E. & B. 541 ; 27 L. .1. (,». B. 124 ; 3 
 
 Jur. (N.S.) 1302 
 
 2 K. & J. 509 ; 8 Do G. M. & G. 020 ... 
 
 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 
 
 255 
 
 145 
 301, 304,308,310, 
 
 314 
 
 171, 172, 173,176, 
 
 178, 464, 470 
 
 111 
 
 34 
 221, 535 
 
 531 
 
 139 
 
 lis 
 
 7, 204, 425, 4,34, 
 
 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 
 
 l.V.i 
 507, 508
 
 xxu 
 
 TABLE OF CASES. 
 
 Names of Cases. 
 
 Blaiberj, Ex parte 
 
 — V. Parke 
 
 — r. Parsons ... 
 Blake r. French 
 
 — V. Hyland 
 
 — V. Johnson 
 
 — V. Marcell 
 Blakely r. Brady 
 Blandford v. Marl- 
 
 borougli 
 
 Blenkinsopp v. Blenk- 1 
 
 insopp ) 
 
 Blount V. Poughty ... 
 
 — V. Harris 
 
 Blundivell ?'. Loverdall 
 Blunden v. Parker ... 
 Boazman v. Johnston 
 Bold r. Hutchinson ... 
 Boldero v. London & \ 
 AVestminster Loan r 
 & Discount Co. ... J 
 BoUaud, Ex imrte 
 
 Bolton V. Bolton 
 
 — V. Madden 
 
 Bond V. Taylor 
 
 — V. Wall'ord 
 
 Bonfield v. Hassell ... 
 Bonham v. Newcomb 
 Bonner ?;. Bonner 
 Bonny (Lessee of) v. 
 
 Griffith 
 
 Booker, I)i re 
 
 Bores v. Booth 
 
 Bosvil V. Braiider 
 
 Bott u. Smitli 
 
 Bottle V. Knocker 
 
 Boughton V. Bougliton 
 — V. Sandilands 
 Bourne v. Fosbrooke ... 
 Boustead v. Shaw 
 
 Jjovy's Case 
 
 Bowen v. Pramidge ... 
 
 — V. Evans 
 
 — V. Kirwan 
 Bowman v. Postron ... 
 
 — V. Taylor ... 
 
 Boxall V. Boxall 
 
 iJoycH, In re 
 
 Boyse r. Possborough 
 Brace v. Mar]l)orough 
 Bracewell v. Williams 
 
 Brackenbury ik Brack- 
 
 ciibury 
 
 Bradley v. Wyndham 
 
 Where Heportkij. 
 
 PA.iE. 
 
 23 Ch. D. 254 ; 52 L. J. (N.S.) Ch. 461 ; 
 31 W. R. 906 ; 49 L. T. (N.S.) 16 ... 
 
 10 Q. B. D. 94; 52 L. J. <N.S.) Q. B. 
 110; 31 W. W. -240: 48 L. T. (X.S.) 
 311 
 
 17 Q. B. D. 337 
 
 5 Ir. Cii. Pep. 24(; 
 
 2 Dr. & Wal. 397 
 
 Prec. Ch. 142 
 
 2 P. & B. 38, n. («) 
 
 2 Dr. c^ Wal. 311 
 
 2 Atk. 545 
 
 1 Do (I. M. & G. 495 : 12 Peav. 568 ; ( 
 
 21 L. J. Ch. 401 \ 
 
 3 Atk. 481 
 
 4 Q. P. D. 003 ; 48 L. J. (X.S.) Q. P. 159 : 
 
 27 W. P. 202 ; 39 L. T. (N.S.) 465 ... 
 1 Sid. 21 
 
 1 P. W. 639 
 
 3 Sim. 377 
 
 5 De G. M. & G. 558 
 
 5 Ex. D. 47 ; 28 W. P. 154 ; 42 L. T. ( 
 (N.S.) 56 j 
 
 21 Ch. D. 543 ; 45 L. J. T5kcy. 133 ; 24 I 
 W. P. 932; 34L. T. 666 ... j 
 
 3Sw. 414 
 
 L. P. 9 Q. P. 55, 43 L. J. (N.S.) Q. B. 35 : 
 
 22 W. P. 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 Peav. 217 
 
 2 Vent. 365 
 
 17 Beav. 86 
 
 Hayes 115 
 
 .34 W. P. 346 
 
 2 W. PI. 1226 
 
 1 P. Wms. 459 
 
 21 Beav. 511 ' 
 
 46 L. J. (N.S.) Ch. 159 ; 25 W. P. 209 ; 
 
 35 L. T. (N.S.) 545 
 
 1 Atk. 625 
 
 3 Taunt. 342 
 
 18 C. B. (N.S.) 524 
 
 27 Chv. 280 
 
 1 Vent. 193 
 
 6 Car. & P. 140 ... 
 
 L. P. 2H. L. 257 
 
 LI. & G. t. Sug. 47 
 
 2 A. & E. 295 ... 
 
 2A. &E. 278 ! 
 
 27 V\\. D. 220 
 
 26 Ch. D. 531 
 
 6 H. L. C. 2; 3 Jur. (N.S.) 373 1 
 2 P. Wms. 491 ... 
 
 L. P. 2 C. v. 196; 12 Jur. (N.S.) 1004 "; 
 15 W. P. i:3U; 15 L. T. (N.S.) 215 ... 
 
 2 Jac. & W. 391 ... 
 
 1 V.'ils. 14 
 
 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 
 
 108 
 
 491 
 
 5.35 
 
 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, 8.5, 87, 99, 
 
 107, 529 
 
 67 
 
 431, 440 
 399, 472, 47 
 
 478 
 
 407 
 
 520 
 368, 370 
 
 106 
 
 507 
 
 248 
 
 383 
 
 383 
 
 300 
 
 431 
 497, 498 
 225, 230 
 
 253 
 
 459, 473 
 174
 
 TABLE or CASES. 
 
 XXUl 
 
 Names of Cases. 
 
 Where Repohted. 
 
 Page. 
 
 Bradsliaw v. Bratlshaw 
 Fii'agf; w. Hopkins 
 
 BrancUyn v. Ord 
 
 Brandon v. Ivobinson... 
 Branton r. I'liillips ... 
 iJrearcliff v. DoiTington 
 Brenan v. Hrenan 
 Breton's Estate, In re 
 
 l^rett V. Grccnwell ... 
 Brcwcl], I\>-' parte 
 
 Bridge ?'. Bridge 
 
 Bridgman ?'. Circcn ... 
 Briggs V. Boss 
 
 — V. .Tones 
 
 — V. Parkman . . . 
 Briglit V. Eynon 
 British India Steam 
 
 Navigation Co. i\ 
 Commissioners of In- 
 land lie venue 
 
 Brittain v. Brown 
 Britten v. Britten 
 Brocklehvurst v. Piail- 
 way Printing & Pub- 
 lishing Co 
 
 Brodrick v. Scale 
 
 Bromley v. Brnnton .. 
 
 Brook V. 15rook 
 
 Brookbank v. Brook- 
 bank 
 
 Brooke v. Pearson 
 Brookes v. Harrison .. 
 Brooks V. Powers 
 Broun v. Kennedy .. 
 
 Brown v. Bellaris 
 
 — V. Carter 
 
 — V. Fryer 
 
 — ?;. Jones 
 
 — V. Morgan 
 Browne v. Burton 
 
 — V. Cavendish 
 Browne's Estate, In re 
 Brownsmith v. Gilborne 
 Bruce v. Bruce 
 
 Brunsden v. Stratton 
 Buckland v. Pose 
 
 Buckle V. Mitchell ... 
 
 Buckley v. Arnold ... 
 Bucknal v. Koiston ... 
 
 Budge V. Budge 
 
 Budgen u. Sage 
 
 9M. &\V. 29 
 
 2 Dowl. loi 
 
 1 Atk. 571 
 
 18 Ves. 429 
 
 2C. P. 1). 212 
 
 4 De G. & Sm. 122 
 
 2 Ir. Eq. Pep. 2(;(j 
 
 17 Ch. I). 41(; ; .00 L. J. (N.S.) Ch. .']69 ; I 
 
 29 W. K. 777 ; 44 L. T. (N.S.) 337 j' 
 
 3 Y. & C. P:x. 230 
 
 IG Ch. D. 484; 50 L. J. (N.S.) Ch. .384 ; 
 
 29 W. R. 299 ; 43 L. T. (N.S.) 58U ... 
 
 IG Bcav. 315 \ 
 
 2 Ves. 027; Wilm. 58 j 
 
 L. R. 3 Q. B. 2G8 ; 37 L. J. (N.S.) Q. B. 
 
 101 
 
 L. R. 10 Eq. 92 ; 22 L. T. (N.S.) 212 ... 
 
 2 Metcalf (Mass.), 258 
 
 1 Burr. 395 
 
 7 Q. 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. R. 386 ; 23 L. T. (N.S.) 
 8()4 
 
 L. R. 6 Eq. 275 ; 37 L. J. (N.S.) Ch. 902 
 
 9 H. L. C. 193 ; 3 Sm. & Giff. 481 
 
 1 Eq. C. Ab. 1G8 
 
 5 Jur. (N.S.)781 
 
 G L. R. Ir. 332 
 
 15 Mass. Rep. 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 
 
 4GL. T. (N.S.)G37 
 
 1 Atk. 188 
 
 L. R. 12 Ir. 122 
 
 5 Dow. &Low. 292 
 
 IJ. &Lat. 637 
 
 13 Ir. Ch. Rep. 295 
 
 3 Stra. 738 
 
 L. R. 11 Eq. 371; 40 L. J. (N.S. 
 141 ; 24 L. T. (N.S.) 212 ... 
 
 Prec. Ch. 520 
 
 7 Chy. 440 
 
 18 Ve<i. 100 
 
 2Eq. C. Ab. 752 
 
 Prec. Ch. 287 ... 
 
 16 Beav. 34 
 
 3 My. & Cr. 683 
 
 ) Ch. 
 
 104 
 
 179 
 
 ]'.I5 
 
 3.;9 
 
 I.'jO 
 
 227 
 
 534 
 406,407,421,422, 
 423, 424, 441, 442 
 
 300 
 
 159 
 400,412,41.1,42.5, 
 426, 427, 428, 429, 
 4:]8, 446, 451, 457 
 248, 267, 496, 504, 
 
 551 
 
 1.59, 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, 19.5,208,219, 
 
 513, 514 
 
 205 
 
 117, 120, 171, 178 
 
 398 
 
 110
 
 XXIV 
 
 TABLE OF CASES. 
 
 NaUES of CASEri. 
 
 Where Kepouteu. 
 
 Tage. 
 
 BuIIer V. AVaterhouse 
 Bullock V. Sadlier .. 
 
 — V. Thorne 
 Balmer v. Hunter 
 
 Bunn r. Bunn ... 
 
 — r. Markham ., 
 Bunyard v. Scabrook 
 Burbridpc, JJj- parte .. 
 Burg's (Lady) Case .. 
 Burgh i: Francis 
 Burke r. Dawson 
 Burkitt v. Bansom ., 
 Burling r. I'atterson., 
 Burliuson v. Hall 
 
 Burrel's Case 
 BurrcU, Ex parte 
 
 Burrough's Case 
 Bursill V. Tanner 
 
 Burton, Ex parte 
 
 Buiy V. Oppeuheim 
 
 Butcher v. Harrison 
 
 — V. Stead 
 
 Butler i\ Butler ... , 
 
 Butler's and Baker's 
 Case 
 
 ButterBeld v. Heath 
 
 Butters, Exp)arte 
 
 Button V. O'Neill , 
 
 Byas V. Byas ... , 
 Byrne v. Carew... . 
 
 Cadell V. Bewley 
 Cadogan v. Kennett , 
 Cahill V. Cahill ... . 
 
 3 Keb. 751 ; 
 Auib. 7G4 ... 
 
 F. Moo. G15 
 
 T. Jo. 94 
 
 L. B. 8 Eq. 46; 38 L. J. (N.S.) Ch. ) 
 543; 20 L. T. (N.S.) 942 ... j 
 
 4 l)e (J. & Sni. 31G; 3 New Bcp. G79 
 12 W. B. 561 
 
 7 Taunt. 22G ; 2 Mars. 532 : Holt, 352 
 
 1 F. &F. 321 
 
 1 Deac. Bkcy. 131 
 
 F. Moo. 602 
 
 1 Eq. C. Ab. 320 
 
 Bolls, March 1805 (MS.) 
 
 2 Coll. 305 
 
 9C. &P. 574 
 
 12 Q. B. 1). 347 ; 53 L. J. (N.S.) Q. B. 
 222 ; 32 W. B. 492 ; 50 L. T. (N.S.) 
 723 
 
 GEep. 72 a -' 
 
 1 Ch. D. 537 ; 45 L. J. (N.S.) Bkcy. 68 ; 
 24 W. B. 353 ; 34 L. T. (N.S.) 198 ... 
 
 17 Yes. 267 
 
 13 Q. B. D. 691; 55 L. J. (N.S.) Q. B. 
 53 ; 34 "W. R. 35 ; 53 L. T. (N.S.) 445 
 
 13 Cb. D. 102 ; 28 W. B. 268; 41 L. T. 
 (N.S.) 571 
 
 26 Beav. 594 
 
 4 B. & AH. 129 ; 1 Nev. & M. 677 
 
 L. B. 7 H. L. 846 ; 44 L. J. (N.S.) Bkcy. 
 129 ; 24 W. B. 463 ; 33 L. T. (N.S.) 
 541 
 
 16 Q. B. D. 374 ; 55 L. J. (N.S.) Q. B. 
 55 ; 34 W. E. 132 ; 54 L. T. (N.S.) 
 591 
 
 3 Bcp. 25 a 
 
 15 Beav. 408 ; 22 L. J. (N.S.) Ch. 270 •' 
 
 14 Ch. D. 265 ; 28 W. B. 876 ; 43 L. T. 
 (N-S.)2 
 
 4 C. B. D. 354 ; 48 L. J. C. P. 368 ; 27 
 W. B. 592 ; 40 L. T. (N.S.) 799 ... 
 
 2 Yes. 164 
 
 13 Ir. Eq. Bep. 1 
 
 15 W. B. 703 
 
 2 Cowp. 434 ; :\roo. 617 
 
 8 App. Cas. 420; ?,\ W. B. 861; 49 
 L. T. (N.S.) 605 
 
 Callaghan v. Callaghan 7 CI. & Sim. 374 
 
 Callisher v. Bischofl's-l L. B. 5 Q. B. 449 ; 39 L. J. (N.s!) Q B 
 181; 18 W. 1{. 1127 
 
 1 DeG. & J. 393; 21 Beav. 567 
 
 2 Amb. 740 
 
 beini ) 
 
 Campbell v. Ingilby 
 — V. Leach 
 
 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 
 
 20,31 
 
 95,96 
 
 489 
 
 170, 541, 542 
 
 Campion v. Cotton 
 
 Cane's Trusts, In re 
 Caney v. Bond ... 
 
 17 Yes. 2G3 
 
 36 L. J. (N.S.) Ch. 744 
 6 Beav. 486 
 
 102 
 
 281, 282 
 
 406 
 
 231,284,288,289, 
 
 513, 514 
 
 171, 523 
 
 157 
 394 
 312 
 
 233 
 
 3, 4, 5, 6, 33, 79, 
 
 85,87,89,99,111, 
 
 113, 12.5,190,198, 
 
 340, 537 
 
 301, 308, 309, 314 
 472 
 
 276 
 337, o?A 
 2(13 
 22, 89, 91, 333, 
 3.35 
 441 
 61
 
 •TABLE OF CASES. 
 
 XXV 
 
 Name8 of Cases. 
 
 WllEUK EeI'OUTED. 
 
 Page. 
 
 Cann, In re 
 
 — V. Cann 
 
 Capcl r. Powell 
 
 Capleu's Estate, Li re 
 Carey v. Stafford 
 Carpenter v. Puller ... 
 
 — V. Carjienter 
 
 — y;. Heriot ... 
 
 — V. Snciling 
 
 Carr i\ Purdiss 
 
 — V.Taylor 
 
 Carrick v. Ford 
 
 Carter, Kv parte 
 
 — V. Hind 
 
 — 7\ Palmer 
 Carteret v. Paschal ... 
 Casson v. Cluirchley ... 
 Castle V. Downton ... 
 
 Catlicart v. PoLinson 
 Caton V. Catou 
 
 Cave V. Cave 
 
 Cawkwell, Ex parte ... 
 
 Cecil V. Putclier 
 
 Chadwick w. Dolcman 
 Challiuor, Ex^iarte ... 
 
 Cliarriberlayne v. 
 Twyne 
 
 Chambers v. Crabbe ... 
 Chamley v. Diinsany... 
 Chandos r. Talbot ... 
 
 Chaplir, Ex parte ... 
 
 Chapman, Exparte ... 
 
 — V. Piggs ... 
 
 — V. Pradley... 
 
 — V. Emery ... 
 
 — V. Gibson ... 
 
 — V. Knight ... 
 
 Charing Cross Adv. ) 
 
 Pank, Ex parte J 
 
 Cheale ?'. Kerwood ... 
 
 Chesterfield v. Janssen 
 
 Child V. Sands 
 
 Childers v. Childers ... 
 
 (!hilliner r. Chilliner... 
 Cholmley's Case 
 Chowne v. Pay lis 
 
 Christ's Hoppital v. 
 I'ndgiii 
 
 Christopberstn r. Pur- 
 ton 
 
 13 Q. P. D. 36 ; 32 W. 11. Dig. 28 
 
 1 P. Wms. 723 
 
 17 C. P. (N.S.)743 
 
 45 L.J. (X.S.)Ch. 280 
 
 3 Sw. 427 
 
 8 M. & W. 20<j 
 
 1 Vern. 440 
 
 1 Ed. 338 
 
 1 Prowne (Mass.), 452 ... 
 
 1 C. M. & E. 782 ; 5 Tyrw. 30'J ... | 
 
 10 Ves. .578 
 
 L. P. 4 Ch. 247 
 
 12 Ch. D. 'JUS ; 27 W. P. 'J43 ; 41 L. T. 
 
 (N.S.)37 
 
 22 L. T. (N.S.) IIG 
 
 8C1. &F. (557 
 
 3 P. AVms. 197 
 
 53 L. J. (N.S.) Q. P. 335 
 
 5 C. P. 1). 5G ; 49 L. J. (N.S.) C. P. G ; 
 
 28 \V. R. 257 ; 41 L. T. (N.S.) 528... 
 
 5 Peters (Amer.), 2G4 
 
 L. R. 2 H. L. 127 ; L, R. 1 Cli. 137 ; 3G 
 
 L. J. (N.S.)Cb. 88G; 16 W. P. 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 Cli. D. 260 ; 29 W. R. 205 ; 44 L. T. 
 (N.S.) 122 
 
 F. Moo. 638 
 
 34 Peav. 457 
 
 2 Sch. &Lef. 690 
 
 2 P. Wms. 608 
 
 26 Ch. D. 319 ; 53 L. J. (N.S.) Ch. 732 ; J 
 32 W. R. Dig. 10 j 
 
 45 L. T. (N.S.) 268 
 
 11 Q. P. D. 27 ; 48 L. T. (N.S.) 704 ... 
 4D. J. &S. 71 
 
 ( 
 
 1 Cowp. 278 
 
 3 Pro. C. C. 229 '• 
 
 5 C. P. 1). 308 ; 49 L. J. (N.S.) C. P. 425 ; 
 
 28 W. R. 919 ; 42 L. T. (N.S.) 538 ... 
 16 Ch. 1). 35 ; 50 L. J. (N.S.) Ch. 157 ; 
 
 29 \\. R. 204 ; 44 L. T. (N.S.) 113 ... 
 6W. P. 494 
 
 2 Ves. 156 
 
 1 Salk. 31 
 
 1 L)e G. & J. 482; 26 L. J. Ch. 743; 
 3 Jur. (N.S.) 1277 
 
 2 Ves. 528 
 
 2 Rep. 51 ; 2 Roll. Abr. 393 
 
 ! 31 L. J. Ch. 757 ; 31 Peav. ,351 ; 8 Jur. 
 
 I (N.S.) 1028; 11 W. R. 5; 6 L, T. 
 
 (N.S.) 739 
 
 ' 2 Vera. 683 
 
 144 
 264, 505 
 
 29 
 441, 455 
 401, 468 
 378, 383 
 
 223 
 
 489 
 
 120 
 
 114, 122,12.3,127, 
 
 131, 408 
 
 341 
 
 523 
 
 143, 146, 157 
 
 284, 286 
 
 50:; 
 
 450 
 
 138 
 
 158, 159, 160 
 5 
 
 372, 374, 387 
 
 78 
 
 181 
 
 459, 472 
 
 476 
 
 141, 142, 143, 144 
 
 98 
 
 489 
 
 518, 527 
 
 447 
 
 12, 38, 41, 72, 85, 
 
 95, 97, 99, 110, 
 
 111, 113, 124, 127, 
 
 171 
 
 159, 160 
 
 282 
 
 334, 346, 477 
 
 190,192, 193,245, 
 
 2(56, 346 
 
 390, 394, 397 
 
 147, 150, 155 
 
 141, 143, 145 
 
 389 
 104, 24S, 531 
 
 543 
 
 470, 472, 473 
 336 
 205 
 
 20, 80, 87 
 
 L. R. 3 Ex. IGO ; 18 L. J. (N.S.) E.x. 60 ^ 175, 176, 178, 179
 
 XXVI 
 
 TABLE OF CASES. 
 
 Names of Cases. 
 
 Christy r. Courtenay... 
 Cliubb V. Stretch 
 
 Churchman v. Harvey 
 
 Citizens' Bank of \ 
 
 Louisiana v. First ( 
 
 National Bank of [" 
 
 New Orleans ... j 
 
 Clanricarde v. Ilenning 
 
 CiariJse r. lloare . . 
 
 Clark V.Clark 
 
 — V. Girthvood ... 
 
 — V. Malpas 
 
 Clarke v. Chambers ... 
 
 — V. Palmer 
 
 — r. Willott ... 
 
 — V. Wright 
 
 Clarkson v. ilnnwav... 
 Clavering v. Clavering 
 Clavey v. llazley 
 
 Clayton v. "Wilton 
 
 Cleaver, In re 
 
 Clements i'. Cheesman 
 
 — V. Eccles ... 
 
 — V. ^latthews 
 
 Clemson v. Townsend 
 Clennell r. Clennell ... 
 Clerk r. Ncttleship ... 
 
 — V. Iiutland 
 Clifford r. Turrell ... 
 Clifton V. Cockburn ., 
 
 Clinch V. Financial | 
 Corporation ... j 
 
 Clint, Itc 
 
 Clough V. Lambert ... 
 
 Clow V. Woods 
 
 Clubb V. lliitson 
 Cochrane v. f "iianibers 
 
 — V. Willis ... 
 
 Cocking V. Pratt 
 C "ockshot V. licnnett 
 (Johen, E,r parte 
 
 Coke ?;. Bullock ... 
 Cokes V. MaKcal 
 Cole V. Davics ... 
 — V. Gibson ... 
 
 Where Reported. 
 
 Page. 
 
 t.3 Beav. 9(5 
 
 L. P. 9 Eq. o.'w; 39 L. J. (X.S.) Ch. 
 829 ; 18 W. K. 483 ; 22 L. T. 8G ... 
 1 Amb. 335 
 
 L. R. G H. L. 352 ; 43 
 209; 22 W. R. 194 
 
 L. J. (X.y.) Ch. 
 
 9 W. R. 912 
 
 14 Ves. 59 
 
 10 P. I). 188 
 
 7 Ch. 1). 9; 47 L. J. (N.S.) Ch. 116; 2G 
 W. R. 90 ; 37 L. T. (X.S.) 014 
 
 4 Ue G. F. &J. 401; 31 I'.eav. 80; 10 
 W. R. G13 
 
 8 Ir. Ch. Rep. 20 
 
 21 Ch. D. 124 ; 51 L. J. (X.S.) Ch. 034 
 
 L P. 7 Ex. 313 ; 41 L. .1. E.x. 197 ; 21 f 
 
 G H. & N. 849 ; 30 L. J. Ex. 1 1 3 
 (X.S.) 1032; 9 W. R. 5571 
 
 2 P. Wms. 204 
 
 2 Vern. 473 
 
 2 Cowp. 427 
 
 3 JLad. 302, n.; G :\r. & S. 07 . 
 
 or, L. J. (X.S.) Q. 13. 455 
 
 27 Ch. D. 031 
 
 Jur. 
 
 11 L-. Eq. Rep. 229 - 
 
 11 Q. B. D. 808; 52 L. J. (X.S.) Q. B. 
 
 772 
 
 IC. &E. 418 ; 
 
 W.N. (1884) 14 
 
 2 Lev. 148 
 
 Lane, 113 ... 
 
 1 y. & C. C. C. 138; 9 Jur. (N.S.) G33 
 
 3My. &K. 7G 
 
 L. R. 4 Ch. 117 ; 38 L. J. (X.S.) Ch. 1 ; 
 
 17 W. R. 84: 19 L. T. (X.S.) 334 ; 
 
 L. R. 5Eq. 450 
 
 L. R. 17 Eq. 115; 43 L. J. Bkcv. 16 ; 
 
 22 W. R. 152 ; 29 L. T. (X.S.) 543 ... 
 
 10 Sim. 179 
 
 5 Serg. & Rawle (Pennsylv.), 275 
 
 18 C. B. (X.S.) 414 
 
 Ami). 79 
 
 L. R. 1 Ch. 58; 35 L. J (X.S.^ CI,. 30; 
 
 11 Jur. (N.S.) 870; 14 W. I;. i;i ; i;j 
 
 P. T. (X.S.) 339 
 
 1 Ves. 401 
 
 2 T. R. 703 
 L. ]{. 7 Cli. 2(1 
 20 W. R. (59 
 Cm. Jac. 49 
 2 Vern. 34 
 1 lid. Raym. 724 
 1 A'es. 51)3 
 
 41 L.J. (X.S.) Bkcv. i; 
 25 J.. T. (X.S.) 473 . 
 
 33, 41, 87, 517 
 
 25, 20, 27, 29 
 332, 394 
 
 384 
 
 181, 508 
 
 539 
 300, 308 
 
 591 
 
 248 
 
 338 
 
 110, 198 
 
 194,219,241,208, 
 
 315,31(5,470,511, 
 
 512 
 
 187, 189, 191, 195, 
 
 190, 342, 343, 345, 
 
 347, 350, 352, 353, 
 
 354, 356, 357, 358, 
 
 359, 3(50, 304 
 
 248, 20G 
 
 222, 320, 453, 459, 
 
 -472,470 
 
 33 
 
 343, 348, 350, .351, 
 
 353, 355, 350, 357, 
 
 300 
 
 139 
 
 410 
 
 38, 42, 40, 47, 50, 
 
 51, 55 
 
 150, 101 
 139 
 482 
 281, 280 
 237, 238, 327, 328 
 207 
 275 
 
 549 
 
 521 
 
 32, 301, 398 
 
 120 
 
 253 
 
 18 
 
 389 
 
 489, 50(5, 509 
 
 104 
 
 ] :. t 
 
 213 
 
 375, 384, 386 
 
 132, 178 
 
 505
 
 TABLE OF CASES. 
 
 xxvn 
 
 Names of Cases. 
 
 Colnman, Jie, Exparte 
 May 
 
 Colemere, In re 
 
 CoUavd r. Bennett ... 
 Collet V. I)e Gols 
 Collingridge v. Paxton 
 Collins, Ex parte 
 
 — V. Eurton 
 
 — V. Locke 
 
 Collinsnn r. Pattrick ... 
 
 CoUis V. Tiison 
 
 CoUyer v. Isaacs 
 
 Colman v. Croker 
 
 — V. Harrel 
 
 Colombinc r. Penliall 
 Colt V. Wollaston 
 Colvilo ('. Parker 
 Colyear v. ]\Iulgrave ... 
 Colyer v. Finch 
 Compton V. Collinson 
 Conanl v. Atlantic In- 
 surance Co 
 
 Conclly V. Steer 
 
 Conning, Ex 2)(irtc ... 
 
 Conolan v. Leyland ... 
 
 Consolidated Credit \ 
 
 and Mortgage Cor- 1 
 
 I)oration (Limited) j 
 
 V. Cosney ... j 
 
 Constantein v. Blache 
 
 Conyngham v. Plunkett 
 
 Cook, Ex parte 
 
 — V. Wriiilit 
 
 Coukc V. Laniotte 
 
 — r. Walker 
 Cooper, Ex parte 
 
 — V. rhltty 
 
 — V. Davis 
 
 — V. Ibberson 
 
 — r. ]\Iartin 
 
 — V. Wliitting- 
 
 liam ... 
 
 — r. Wormald 
 
 — V. Zeffert 
 Coote V, Jecks ... 
 
 "Where Repouted. 
 
 Page. 
 
 14 W. E. .^15 ; L3 L. T. (N.S.) 085 ... 
 L. R. 1 CI). 128 ; 35 L. J. (N.S.) Bkcy. 
 
 8 ; 12 Jur. (N.S.) :?«; 14 AV. W. :5I8 ; 
 
 i;5 L. T. (N.S.) 02 1 
 
 28 Chy. 55(5 
 
 Forr. Ca, T. G5 
 
 11 C. B. (N.S.)G8;} 
 
 L. E. 10 Ch. aG7; 44 L. J. (N.S.) Ch. 
 
 78; 23 W. E. 802; 32 L. T. (N.S.) 
 
 108 
 
 28 li. J. (N.S.) Ch. 943; 5 Jur. (N.S.) 
 
 952; 4 i)e C. & J. 012 
 
 4 App. Cas. 074 ; 48 L. J. (N.S.) P. C. 
 08; 28 W. E. 189; 41 L. T. (N.S.) 
 292 
 
 2 Keen, 123 
 
 40 L. T. (N.S.) 387 
 
 19 Ch. D. 342 ; 51 L. J. (N.S.) Ch. 14 ; 
 
 30 W. E. 70 ; 45 L. T. (N.S.) 507 ... 
 1 Vcs. 100 
 
 3 Bro. C. C. 12; 1 Ves. 50 
 
 1 Sm. &Gif[: 228 
 
 2 P. AVms. 154 
 
 Cro. Jac. 158 ; Prec. Ch. 101 
 
 2 Keen, 81 
 
 5 H. L. C. 905 
 
 2 Bro. C. C. 377 
 
 1 Peters (Amcr.), 380 
 
 7 Q. B. D. 520 ; 50 L. J. (N.S.) Q. B. 
 320; 29 W. E. 529 ; 45 L. T. (N.S.) 
 402 
 
 L. E. 10 Eq. 414 ; 42 L. J. CN.S.) Ch. 
 
 74; 21 W. E. 784 ... " 
 
 27 Ch. D. 032 ; 54 L. J. (N.S.) Ch. 123 ; 
 
 51 L. T. (N.S.) 895 
 
 10 Q. B. D. 24 ; 55 L. J. (N.S.) Q.B. 01 ; 
 34 W. E. 100 
 
 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 
 
 f 
 
 ( 
 
 3W. E. 357 
 
 10 Ch. 1). 313 ; 48 L. J. (N.S.) Bkcy. 
 
 54 ; 27 W. E. 299 ; 39 L. T. (N.S.) 
 
 523 
 
 1 ]5nrr. 20; 1 W. Bl. 05 
 
 32 W. E. 329 ; 48 L. T. (N.S.) 831 ... 
 
 29^.11.500 
 
 L. E. 3 Ch. 47 ; 17 L. T. (N.S.) 587 ... 
 15 Ch. I). 501 ; 49 L. J. (N.S.) Ch. 752 ; 
 
 28 W. E. 720; 4;j L. T. (N.S.) 10 ... 
 
 27 Beav. 200 
 
 32 AV. E. 402 
 
 L. E. 13 Eq. 597 ; 41 L. J. (N.S.) Ch. 
 
 599 ... 
 
 15 Beav. 241 
 
 90 
 
 78 
 520 
 233 
 
 147 
 223, 521, 527 
 
 409 
 
 438, 440 
 
 143 
 
 100, 101 
 
 525, 527 
 
 200, 390, 397, 398, 
 
 399, 405, 412, 413, 
 
 447 
 
 78, 89, 90 
 
 531 
 
 188,221, 245, .305 
 
 390, 391, 403 
 
 197 
 
 301 
 
 120 
 
 155, 405 
 147 
 
 483 
 
 1.39 
 
 104 
 
 405, 413, 431 
 
 338 
 
 270 
 
 481,485,487,490, 
 
 551 
 
 124, 252 
 
 101, 148 
 
 179 
 
 159 
 
 1,59 
 395, 390 
 
 545 
 
 373, 384 
 
 157 
 
 149
 
 XXVIU 
 
 TABLE OF CASES. 
 
 Names of Cases. 
 
 Where Reported. 
 
 Page. 
 
 Copis r. MidJleton ... 2 MaJ. 430 
 
 Coppock V. Bower 
 Corbett v. Brock 
 
 — i\ Poelnitz 
 
 — V. luiwe 
 Corlett V. Radcliffe 
 Comiick V. Trapaud ... I Dow. 800 
 
 1 M. & AV. 30 1 . 
 •20 Beav. 530 
 
 1 T. K. r, 
 
 25 W. B. 59 
 
 14 :Moo. p. C. I'.'l 
 
 Cornish v. Clark 
 
 Coriithwaitc v. Frith... 
 
 Cory V. Cory 
 
 Cotes u. IMichill 
 
 Cotteen v. Missing ... 
 Cotterell v. Homer ... 
 Cottington v. Fletcher 
 
 Cottle r. Fripp 
 
 Cotton V. King 
 
 Coulson V. Allison 
 Collision V. Gardiner... 
 Coiiltwas r. 8 wan 
 Count d'Epineuil, Jii re 
 Coutts f. Acworth ... 
 
 Coventry v. Coventry 
 Coward v. Meek 
 
 Cowx ?;. Foster 
 
 Cox, Ex parte 
 
 — V. Barnard 
 
 Cox's (Lady) Case ... 
 Cracherode v. Hallam 
 Crackuall r. Janson ... 
 
 Cranipthorne v. Janson 
 Cramer v. Moore 
 Craven, Ex parte 
 
 Crawcour, Ex inirte ... 
 
 day V. Mansfield 
 
 — V. Booke 
 
 Credit Co. v. Pott 
 
 Crc swell v. Cukes 
 Crickett r. Dolby ... 
 
 Crisp V. Pratt 
 
 Crolt /•. Liimley 
 Crofton V. Orrnsby ... 
 CroltB I'. Middlcton ... 
 
 Croker v. JIartin 
 Crosbie v. Murphy ... 
 Crosby v. Crouch 
 Cross, In re 
 
 — Jnrc 
 
 — r. Cross 
 
 — V. Faustcnditch 
 Grosser and Bong v. 
 
 Maxwell 
 
 L. B. 14 Eq. 184 : 42 L. .J. (X.S.) Ch. 1 
 14; 20 W. B. 8117; 2G L. T. (X.S.)-! 
 494 
 
 4 DeG. &Sra. 552 
 
 1 Ves. 19 
 
 3 Lev. 20 
 
 1 !\Iad. 170 
 
 13 Sim. ,500 
 
 2 Atk. 155 
 
 2 Vein. 220 
 
 ■1 V. Wras. 358 ; 2 Eq. C. Ab. 53 
 
 2 Do G. F. & J. 521 
 
 3Sw. 279, n 
 
 19 W. B. 485 ; 22 L. T. (X.S.) 539 ... 
 
 20Ch. D. 758 
 
 L. R. 9 Eq. 519 ; 39 L. J. (X.S.) Ch.) 
 
 049; 18 W. B. 482 j 
 
 Gilb. Bep. 100 
 
 .50 L. J. (X.S.)Ch. 187 
 
 1 .J. &H. 30 
 
 I Ch. D 302 ; 24 W. R. 302 ; 33 L. T. 
 (N.S.)757 
 
 8 Hare, 310 
 
 3 P. Wms. 338 
 
 App. X^o. IX. 
 
 II Ch. D. 1; 48 L. .1. (X.S.) Cb. 108;) 
 27 W. R. 55 ; 39 L. T. (X.S.) 32 J 
 
 L. J. (X.S.) Ch. 91 
 
 3 Sni. &Giff. 141 
 
 19 W. R. 137; L. R. 10 Eq. 048; 18 
 
 W. R. 1022 ; 23 L. T. (X.S.) 503 ... 
 
 9 Ch. D. 419; 47 L. J. (X.S.) Bkcy. 
 94 ; 20 W. B. 733 ; 39 L. T. (X.S.) 2 
 
 1 Ves. 379 
 
 Ca. t. Talb. Forr. 1.53 
 
 Q. B. D. 299; 5o L. J. (X.S.) Q. B. 
 100; 29 W. B. 320; 44 L. T. (N.S.) 
 500 
 
 2 Leon. 8 
 
 3 Ves. 12 
 
 Cro. Car. 550 
 
 G LI. L. C. 072 
 
 3 Sch. &Lef. 583 
 
 2 K. & J. 194; 5 D. M. & G. 192 ; 29 
 
 L. T. 114 
 
 1 Dow. & C. 15 : 1 lili. X. B. 573 
 
 8 Ir. C. L. B. 3(H 
 
 2 Gamp. KJO ; 11 East, 250 
 
 4 Dc G. & Sm. 304 
 
 19 W. W. 1.53 
 
 1 L. J;. Ir. .389 
 
 Cro. Jac. 180 
 
 W. X. (1885) 95 ; 
 
 I 38, 56, 79, 80, 81 
 
 244, 245, 247 
 
 I 253, 311 
 
 492, 504, 505 
 
 303 
 
 1 159 
 
 1, 10, 84, 99, 260 
 
 191, 219, 204, 534 
 
 32, 33, 40, 41, 45, 
 
 50, (u, 09, 240, 
 
 208,209,271,280, 
 
 522, 525, 520, 528, 
 
 529, 545 
 
 430 
 
 273 
 
 173 
 
 389, 440, 446 
 
 342, 301 
 
 470 
 
 283 
 
 474 
 
 334, 492 
 
 72 
 
 200, 207 
 
 101 
 
 405, 490, 499, 502, 
 
 551 
 
 305 
 
 145, 154, 155 
 
 305 
 
 285 
 
 107, 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, 404, 465 
 
 100 
 
 101 
 
 104, 234 
 
 70 
 409, 417 
 210, 220 
 
 139, 102
 
 TABLE OF CASES. 
 
 XXIX 
 
 Names of Cases. 
 
 Crossley v. City of | 
 Glasgow Co. ) 
 
 — V. El worthy.. 
 
 Croucli V. Jlartin 
 
 C'row V. Jioger.s 
 
 Crowe V. Ballard 
 
 Croxtoii t\ May 
 
 Cullen's Estate, In re 
 
 Cullingworth v. Loyd 
 Ciuiiiingham, In re .. 
 
 Currie v. ]\Iisu 
 
 — V!. Kind 
 
 Curson v. Blackwall .. 
 Curteis' Trusts, //; re 
 
 Curtis V. Perry 
 
 — V, Price 
 
 Cutler, In re 
 
 Dalcing ?'. Whimper ... 
 
 Dale V. Hamilton 
 Dalrymplei;. Dalrymple 
 Dalston v. Coatsworth 
 Damage v. AV'hite 
 Dame Pmrg's Case ... 
 Dame Ever's Case 
 D'Angibau, In re 
 
 Daniel, In re 
 
 Dann, Ex parte 
 
 D'Arcy v. D'Arcy 
 Davston v. Lord 
 
 Orford 
 
 Darv'ill v. Terry 
 Daubeny v. Cockburu 
 Dauglish Z7. Tennent... 
 
 Davenport v. Bishopp 
 
 Davidson ^'. Russel ... 
 Davies i\ (Jooper 
 
 — V. Davies 
 
 — V. Jones 
 
 — V. Otty 
 
 — V. Eees 
 
 Davis V. Burton 
 
 Wjieuk Reported. 
 
 Page. 
 
 4 Ch. D. 421 ; 4(5 L. J. (N.S.) Cii. G") ; 
 25 W. 11. 201 ; ?>{\ L. T. 285 
 
 L. P. 12 Eq. 1.58 ; 4U L. .7. (X.S.) Cli. ( 
 480; 19 W. K. 842 ; 24 L. T. (N.S.)-; 
 mi 
 
 2 Vorn. 595 
 
 1 Str. 592 
 
 3 J5ro. C. ('. 117 ; 1 Vos. 215; 2 Co.v, 
 25o 
 
 9 Ch. D. 388 ; 27 W. P.. 327 ; 39 L. T. 
 
 (N.S.UGl 
 
 f 
 
 14 Ir. Ch. Kep. 5()G 
 
 2 Beav. 385 '. 
 
 28 Ch. D. 682 ; 54 L. J. (N.S.) Ch.448; ) 
 
 33 W. Pv. 389 ; 52 L. T. (N.S.) 214 / 
 1 App. Cas. 554; L. P. 10 E.x. 153; 
 
 44 L. J. (N.S.) Ex. 94 ; 23 W. P. 
 
 450 
 
 IMy. &Cr. 17 ■' 
 
 Toth. 257 
 
 L. P. 14 Eq. 217 : 41 L. J. (X.S.) Ch, 
 
 G31; 26 L. T. 863 
 
 GVes. 739 
 
 12 Ves. 89 
 
 14 Beav. 220 
 
 26 Beav. 568 
 
 5 Hare, 369 ; 2 Ph. 266 ... 
 
 2 Has. Con. 54 
 
 1 P. Wms. 731 
 
 1 Svv. 137 
 
 F. Moo. 602 
 
 2 Poll. Pep. 34 
 
 15 Ch. D.242; 49 L. J. (N.S 
 
 28 AV. P. 930 ; 43 L. T. 
 
 25 L. T. 188 
 
 17 Ch. D. 276; 29 W. P. 77 
 
 (N.S.) 760 
 
 1 Hayes & J. 115 
 
 .)Ch. 
 (N.S.) 
 
 756; ( 
 135 ■( 
 
 1 : 44 L. T. 
 
 Colles, 229 
 
 6H. &N. 811 
 
 1 Mer. 638 
 
 L. P. 2 Q. B. 49 ; 36 L. J. (N.S.) Q. B. 
 10; 15 W. P. 196 
 
 1 Phil. 698 ; 2 Y. & C. C. C. 451 | 
 
 2 Dick. 761 
 
 5 My. &Cr. 270 
 
 4Giff. 417 
 
 low. P. 779 
 
 35 Beav. 208 
 
 17 Q. B. D. 408 ; 55 L. J. (N.S.) Q. B. 
 
 363 ; 34 W. P. 573 ; 54 L. T. (N.S.) 
 
 813 
 
 11 C). B. D. 537; 52 L. J. (N.S.) Q. B. 
 63G ; 32 W. P. 423 
 
 411 
 39, 40, 41, 50, 52, 
 57, 58, 59, 64, 67, 
 71, 75, 223, 381, 
 516,519,521,524, 
 525, 545, 548 
 
 450 
 
 391 
 
 505 
 
 300, 301 
 
 343, 356, 359, 360, 
 
 .361 
 
 104 
 
 139, 146. 117,150, 
 
 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 
 27G 
 218 
 214 
 
 358, 361, 390, 391, 
 392 
 136 
 
 95, 96 
 5U9 
 
 108 
 
 105, 107, 137, 1.57 
 
 315, 317, 460 
 
 104 
 
 294, 391, 399, 512 
 
 534 
 
 530, 531 
 248 
 489 
 1,52 
 470 
 
 139, 140 
 138, 139, 140
 
 XXX 
 
 TABLE OF CASES. 
 
 Names op Cases. 
 
 Davis V. Goodman 
 
 — V. Usher 
 
 Davy V. Garrett 
 
 Dawson, Ex imrte ... 
 
 — r. Bank of \ 
 ^\'hitehave^ ; 
 
 — /•. Kearton ... 
 
 — r. Massey ... 
 Day V. AValdock 
 Dean v. Brown 
 
 De Beil v. Thompson 
 Debenham v. Mellon... 
 
 Deffell r. White 
 
 De Grouchy, Ex parte 
 De Hoghton v. Money 
 De La Touche's Settle- 
 ment, Ja re 
 
 De Medina v. Grove ... 
 
 De Metton v. De Mel- 
 lon 
 
 Den V. Ogle 
 Dening v. Ware 
 Denison v. Tattersall 
 Dennis v. Whetham , 
 
 Dent V. Bennett 
 Dettmar v. Metropo- 
 litan & I'rovin. Bank 
 Devon v. Watts 
 
 Dewey v. Bayntun ... 
 
 Dias V. De Livera ... 
 
 Dickenson v. Wright 
 Dickinson v. Burrell ... 
 
 Dicks f. Yates 
 
 Dilkes V. Broadmead . . . 
 
 Dillon 17. Coppin 
 
 — V. Grace 
 Dillwyn v. Llewellyn 
 
 Dilrow V. Bone 
 
 l)ipple V. Corles 
 ])obbyn r. Adams 
 Doble, Ex 2>('rtc. 
 Dolan V. Macdermot ... 
 
 Doe V. Ball 
 
 — V. Bennett 
 
 Wheke Rei'okted. 
 
 r.uiK. 
 
 5 C. P. D. 128; 49 L. .L (N.S.) C. P. 
 
 344; 28 W. K. 559; 42 L. T. (N.S.) 
 
 288 
 12 Q. B. D.490 ; 53 L. J. (N.S.) Q. B. 
 
 422; 32 W. 11. 832; 51 L. T. (N.S.) 
 
 2U7 '. 
 
 7 Ch. D. 473; 20 W. B. 110 
 
 L. Bi. 19 Eq. 433 ; 44 L. J. (N.S.) Bkcy. 
 
 49; 23 W. B. 354 
 
 G Ch. D. 218; 4(3 L. J. (N.S.) Ch. 884; 
 
 20 W. B. 34 ; 37 L. T. (N.S.) 04 ... 
 
 3 Sm. & Giff. 180 
 
 1 Ball&B. 233 
 
 1 Dowl. 523 
 
 8 Dowl. & By. 75 ; 5 B. & C. 330 ; 2 
 C. &P. 02 
 
 3 Beav. 409 
 
 5 Q. B. D. 394; 49 L. J. (N.S.) Q. B. 
 497 ; 28 W. B. 501 ; 42 L. T. (N.S.) 
 577 
 
 L. E. 2 C. P. 144; 36 L. J. (N.S.) C. P. 
 25 
 
 3 Mont. & A. 27 
 
 L. B. 2 Ch. 104 ; L. B. 1 £q. 154 
 
 L. B. 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, 210 
 
 22 Beav. 185 
 
 18 L. T. (N.S.) 303 
 
 L. R. 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. 209 ; 7 Sim, 539 
 
 IH. &M. G41 
 
 1 Doug. 80 ... ... 
 
 6 East, 257 -j 
 
 5 App. Cas. 123 ; 49 L. J. (N.S.) P. C. 
 
 20; 42 L. T. (N.S.) 307 
 
 5 H. & N. 401 : 29 L. .L (N.S.) Ex, 150 
 L, B. 1 Eq, 337; 35 L. J. (N.S.) Ch. 
 
 371; 12 Jur. (N.S.) 199; 14W. B.412 
 18 Ch. D. 70 ; 50 L. J. (N.S.) Ch, 809 ; 
 
 44 L. T. (N.S.) 000 
 
 2 De G. F. & .J. 500 ; 30 L. J. (N.S.) Ch. 
 208; 3 L. T. 005 
 
 4 My. & Cr. 047 
 
 i 
 
 2 Sch. & Lef. 450 
 
 4 D. F. & J. 517 : 31 L. J. (N.S.) Ch. 
 
 0.58 
 
 3 Giff. 538 
 
 11 Hare, 183 
 
 7 L-. Cli. Bop, 193 
 
 20 W. I!. 407 ; 3» L. T. (N.S.) 183 ... 
 
 L. B. 3 Ch. 070 ; 10 W. B. 08 
 
 11 M. & W. 531 
 
 8C. &P. 124 
 
 150 
 
 138 
 533 
 
 43 
 
 283 
 
 108, 398 
 
 490, 494 
 
 174, 178, 180 
 
 339, 340 
 309, 384 
 
 302 
 
 159 
 25G 
 529 
 
 481 
 
 171, 181 
 
 470 
 
 343, 345, 356 
 
 108, 390, 391, 398 
 
 39, 41, 58, 00, 517 
 
 177 
 487, 495, 496 
 
 490 
 
 12 
 
 47,55,81,87,244, 
 
 245, 340, 308 
 
 267, 281 
 347 
 
 412, 458, 401, 476 
 
 545 
 
 332, 334, 357 
 272, 389, 390, 412, 
 413,419,425,428, 
 
 453, 457, 458 
 396 
 
 322, 324, 390, 393 
 
 425, 440 
 
 440, 444 
 
 223, 308 
 
 221, 257 
 
 206 
 
 116, 170, 522 
 
 480
 
 tahle of cases. 
 
 XXXI 
 
 Names ok Cases. 
 
 Poo V. Bottriell 
 
 — ?'. Carter 
 
 — r. FmUows 
 
 — V. .liunes 
 
 — r. Knight 
 
 — r. Jjcwis 
 
 — V. Manning 
 
 — V. Martin 
 
 — V. Martyr 
 
 — V. Parratt ... ... 
 
 — t', IvoU'o 
 
 — r. lioutledgo 
 
 — V. Eowe 
 
 — V. Rusliam 
 
 — ^\ Slicrlock 
 
 — r. "Webber 
 
 — r. Weller 
 
 JJolin V. (,'oltman 
 
 Dolphin V. Aylward ... 
 
 Dommett v. Bedford 
 Donaldson v. Donaldson 
 r. Gillott ... 
 
 Dorman, Exj^arte ... 
 
 Doughty, In re 
 
 Douglas V. Culverwell 
 
 — V. Douglas ... 
 Douglasse v. Ward ... 
 
 Do well V. Dew 
 
 Drakelord V. Wilks ... 
 Drayeott, Ex parte ... 
 
 Drew V. Martin 
 
 Drewe v. Lainson 
 Drosier v. Brereton ... 
 
 Dryden v. Hope 
 
 DuiSeld V. Scott 
 Duffin V. Furness 
 Dunbar r. Tredenniek 
 Duncan v. Cashin 
 
 Dundas v. Dutens 
 
 Dunkley iK Dunkley ... 
 
 Dunne v. Boyd 
 
 Dunster v. (ilengall ... 
 Durand v. Durand 
 Duttou V. Morrison .., 
 
 — V. Thompson ... 
 
 Duvergier v. Fellowes 
 D'Wolf r. Harris 
 Dyo V. Dye 
 
 WiiEKB Reported. 
 
 Page. 
 
 5 J5. & Ad. 131 
 
 8 T. K. 3U() 
 
 'J Tvr. 400 
 
 IG East, I'l'i 
 
 5B. &C.G71 •' 
 
 lOB. &('. 07;J 
 
 Fast, 70 I 
 
 4 T. R. :j'J 
 
 1 B. & r. (N.R.) 332 • 
 
 5T. R. 652 
 
 8 A. &E, G50 
 
 I 
 
 2 (Wp. 705 
 
 4 Bing. K C. 737 
 
 17 Q. B. 723 - 
 
 Fox & Sm. (Ir. Rep.) 90 
 
 lA. &F. 733 
 
 7 T. R. 478 
 
 1 Vern. 294 
 
 L. R. 4 H. L. 48G ; 23 L. T, (N.y.) G3G - 
 
 3 Yes. 149 
 
 Kay, 718 ; 23 L. J. (N.S.) Ch. 788 ■ 
 
 L. R. 3 Eq. 278; 15 W. R. IGG; 15 
 L. T. (N.S.) 382 
 
 L. R. 8 Ch. 51 ; 42 L. J. (N.S.) Bkcy. 20, 
 21 W. R. 94 ; 27 L. T, (N.S.) 528 ... 
 
 18 L. T. (N.S.) 188 
 
 3 Gil£ 251 
 
 22 L. T. (N.S.) 127 
 
 1 Ch. Ca. 99 
 
 1 Y. & C. C. C. 345 
 
 3 Atk. 539 
 
 2Glyn. &J. 283 
 
 2 H. &M. 130 
 
 11 A. &E. 529 
 
 15 Beav. 221 
 
 9 W. R. 18; 3L. T. (N.S.) 280 
 
 3T. R. 374 
 
 Sel. Ca. Ch. 77 
 
 3 Ball& B. 304 
 
 L. R. IOC. P. 554 ; 44 T,. .1. (N.S.)C. P. 
 
 39G ; 23 W. R. oGl ; 32 L. T. (N.S.) 497 
 
 1 Ves. Jun. 198 ; 2 Cox, 235 
 
 2 De G. M. & G. 890 " 
 
 I. R. 8 Eq. GOO 
 
 3 Ir. Ch. Rep. 47 
 
 2 Cox, 207 
 
 17 Ves. 193 
 
 23 Ch. b. 278 ; 52 L. J. (N.S.) Ch! GGl ; ) 
 
 31 W. R. 59G )" 
 
 10 B. &C. 82G 
 
 4 Mason (U.S. Circ. Ct.), 515 
 
 13Q. B. D. 147 
 
 204, 23G 
 228 
 IGG 
 218 
 1G4, 458, 472, 474, 
 475 
 220, 222, 223 
 
 187, 189, 190, 191, 
 193, 195, 218 
 
 213 
 
 83, 195, 218, 242, 
 
 329 
 
 28G 
 
 192, 247, 2G4, 286 
 
 84, 189, 190, 196, 
 198,203, 218,245, 
 
 315, 537 
 218, 245, 3G9 
 
 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, 4G8 
 
 408 
 222, 332 
 
 39G 
 
 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 
 
 4 69 
 
 120 
 
 444
 
 xxxu 
 
 TABLE OF CASES. 
 
 Names of Cases, 
 
 Djer T'. Dyer 
 
 Dvke V. Elliott ... 
 
 Eales r. Gee 
 
 Earl of I.imerick, i« re 
 East Grinstead's Case 
 East India Co. v. Clark 
 — V. Clavel 
 
 Eastland v. Burchell... 
 
 Eastwood V. Brown ... 
 
 Ede V. Knowles 
 
 Eden ?■. Chalkliall ... 
 Edgell V. Haywood ... 
 Edwards v. Cooper ... 
 
 — V. Edwards... 
 
 — V. Glyn 
 
 — V. Harben ... 
 
 — V. .Tonos 
 Elibank v. Montolieu 
 Ellis, Ex parte 
 
 — r. Barker 
 
 — r. Nimmo 
 
 EUiBon V. Ellison 
 
 Elmslie v. McAulay ... 
 Elsey V. Cox 
 
 — V. Lutens 
 
 Elton r. Elton 
 
 Elwes V. Mawle 
 
 Elwortliy v. Bird 
 
 — V. Wickstead 
 Emanuel v. Bridger . . . 
 
 Emby v. Guy 
 
 Emmett I!. Norton ... 
 Empress Engineering ) 
 
 (-0., J a re ... ) 
 Emprin,i;ham v. Short 
 England v. Downs ... 
 Erlanger v. New Som- 1 
 
 brero I'hosphate Co. J 
 
 Espey V. Lake 
 
 Essery v. Cowlard . . . 
 
 Estwick V. Caillaud ... 
 Evans V. Carrington ... 
 
 — V. Evans 
 
 — V. Grey 
 
 Where Rei'orted. 
 
 Page. 
 
 2 Co.v, 92 ; 1 Wat. Cop. 21G 
 
 L. R. 4 P. C. 184; 41 L. J. (N.S.) 
 
 Adm. 65 ; 20 W. E. 497 ; 20 L. T. 
 
 (N.S.) 45 
 
 Barn. Cb. 397 
 
 14L-. Jur. (7 N.S.) 05 
 
 Duke (ed. 1070), 04 
 
 Prcc. Cb. 377 ; (Jilb. Eq. Rep. 37 
 Gilb. Eq. Rep. 37 ; Prec. Cb. 377 
 3 Q. B. D. 432 ; 47 L. J. (N.S.) Q. B. 
 290; 38 L. T. (N.S.) 
 
 R. 
 
 500; 27 W. 
 508 
 
 Ry. & Mood. 312 
 2 Y. & C. C. C. C 
 
 Sir T. Raym. 2 
 3 Atk. 352... 
 11 Q. B. 33 
 2 Cb. D. 291 ; 
 24 W. R. 7n 
 2 E. & E. 29 
 
 45 L. J. (N.S.) Cb. 391 
 
 2 T. R. 587 
 
 1 Jly. & Cr. 22G 
 5 Ves. 737... 
 L. R. 6 Cb. 002 
 
 77; 19 \V. R. 
 
 819 
 L. R. 7 Ch. 104 ; 
 
 7 Sim. 325 ... 
 
 ;'40L.'j. (N.S.) Bkcy. 
 913; 24 L. T. (N.S.) 
 
 109 
 
 41L. J.(N.S.)Ch. 64; 
 20 W. R. 100; 25 L. T. (N.S.) 080 ... 
 LI. & G. (t. S.) 333 
 
 Ves. 650... — \ 
 
 3Bro. C. C. 024 
 
 20 Beav. 95 
 
 8 Hare, 159 , 
 
 3 Atk. 504 
 
 2 Sm. L. C. 8tb ed, 
 2 Sim. & S. 372 . 
 
 1 Jac. & W. 69 . 
 L. R. 9 Q. B. 280 ; 
 
 90; 22 AV. R 
 195 
 
 3Mer. 702 
 
 j8C. &P. 500 
 
 10 Cb. D. 125 ; 29 W. R. 342 ; 43 L. T. 
 
 ! (N.S.) 742 
 
 I 3 Hare, 401 
 
 2 Beav. 522 
 
 3 App. Cas. 1218 ; 
 73 ; 27 W. R. 05 
 
 43 L. J. (N.S.) Q. B. 
 30 L. T. (N.S.) 
 
 404 
 
 48 L. J. (N.S.) Cb. 
 ; 39 L. T. (N.S.) 209 
 
 10 Hare, 200 ' 
 
 20 Cb. D. 191 ; 53 L. J. (N.S.) Cb. 001 
 32 W. R. 518 ; 51 L. T. (N.S.) 00 .. 
 
 5T. R. 420 
 
 29 L. J. (N.S.) Cb. 330 
 
 2 Ir. Ch. Rep. 242 ., 
 
 9L. R. Ir. 539 
 
 19, 
 
 201 
 538 
 
 254 
 100 
 205 
 319 
 47, 315 
 
 302 
 114, 119,123,124, 
 
 131 
 17, 104, 219, 513, 
 
 519 
 
 327 
 
 18 
 
 17 
 
 147, 153 
 
 104 
 
 19, 09, 117, 118, 
 
 119, 121,122,124, 
 
 127, 130, 133, 178 
 
 447, 454 
 
 290 
 
 95 
 
 493 
 272, 308, 390, 393 
 389, 395, 402, 403, 
 413, 414, 425, 433, 
 438, 445, 440, 449 
 
 525 
 
 545 
 
 545 
 
 394 
 
 149 
 301, 311 
 
 290 
 
 152 
 32 
 302 
 
 391 
 73 
 
 340, 348 
 
 507 
 
 484, 490, 504, 505. 
 
 549 
 
 334, 341, 477 
 
 100, 535 
 
 342 
 
 227 
 
 458
 
 TABLE OF CASES. 
 
 XXXlll 
 
 Namks or Cases. 
 
 Evans r. .Jennings .. 
 
 — V. Jones 
 
 — V. Ijlewellyn .. 
 Eveleigh v. I'ursstord 
 
 Evelyn i'. Templar .. 
 
 Evev's (Dame) Case .. 
 Everitt v. Everitt 
 
 Exlon r. Scott 
 
 Eykyn, Jie 
 
 Eyre, Ex 2^'"'^^ 
 
 — V. (ireen .. 
 
 FaircLeai'd r. I'owcrs 
 
 Fane v. Fane 
 
 Farington r. Parker .. 
 Farley v. Uonhani 
 Farr v. Newman 
 
 Farrer ?;. Close 
 
 Fawcett v. Gee 
 
 Fenn v. Billeston 
 Fenwick v. Greenwell 
 — V. Laycock .. 
 
 Fermor's Case 
 
 Ferrars v. Cherry 
 Field, Ex parte 
 
 — r. Uonouglimore 
 
 — V. Lonsdale 
 
 — ?'. Sowle ... 
 Fife V. Bousfield 
 
 Filmer v. Gott 
 
 Finch V. Shaw 
 
 — V. Winchilsea .. 
 Firth, Ex parte 
 
 Fisher, Ex parte 
 
 — r. ApollinarisCo 
 
 — r. Owen 
 
 Fitzer ?>. Fitzer 
 
 Fitzjames v. Moys .., 
 Fitzmanrice v. Sadlier 
 Fiavell, 7iV, Exjoarte 
 
 Hopcralt 
 
 Fleetwood, In re 
 
 Fletcher, 7?.j" ;jftr/fi ... 
 
 — ?'. Fletcher... 
 
 — V. Ketteman 
 
 — V. Sedloy 
 Flory V. Denny ... 
 Flower v. Marten 
 
 — ?'. Sadler 
 Follett ?•. AVesley 
 Forbes v. Forbes 
 
 Bayntun 
 
 Where Reported. 
 
 Page. 
 
 (5 W. R. r.lG 
 
 11 .Tur. (N.S.) 784 
 
 ;i liro. C. ('. l.")U; 1 Cox, :io^ 
 
 •i M. & Knb. .-);!',l 
 
 2 15ro. C. (". MS 
 
 2 Koll. Hop. ;)1 
 
 L. W. 1(1 Kq. Kif); no L.J. (N.S.) Ch. ) 
 777;l.s\\'.i;.Ii»2();2;5L.T.(N.S.)13Gj 
 () Sim. 31 ... 
 GCh. D. 115; 37 L. T. (N.S.) 2G1 
 
 44L. T. (N.S.)922 
 
 2 Coll. 527 
 
 44U 
 118 
 481 
 110, 122, 125 
 11)1, l!i3, 1'.I5, 207, 
 245, 3'JU 
 214 
 477, 4.S1), 4114, 49G, 
 41)'.), 552 
 45, 47, 472 
 21 
 f I 32, 81, 82, 272, 
 \ ' 522 
 
 ,. ' 53G 
 
 Tree. Ch. 17; 2 Vern 202 
 
 L. \l. 20 Eq. (JOS; 24 W. U. Dig. 2G0 ... 
 L. K. 4 Eq. IGG: 10 \j. T. (N.S.) 258 ... 
 
 2J. &H. 177 
 
 4T. B. G21 
 
 lOB. &S. 553 
 
 3 Anstr. 910 
 
 7 Exch. 152 
 
 10 J5eav. 412 
 
 1 (r. & D. 532; 2 Q. B. 1()8 ; G Jur. 34G 
 
 3 l!ep. 78 a; Jcnk. 254, pi. 45 
 
 2 Vern. 383 
 
 13 Ch. D. lOG; 28 W. B. 2G7 
 
 1 Drn. & War. 227 
 
 13 Bcav. 78 ; 19 L. J. Ch. 5G0 
 
 4 Russ. 112 
 
 6 Q. B. 100 
 
 4Bro. r. C. 230 
 
 19 lieav. 500 
 
 1 r. Wnis. 277 
 
 19 Ch. D. 419 ; 51 L. J. (N.S.) Ch. 473 ; 
 
 30 AV. R. 529 ; 45 L. T. (N.S.) 120 ... 
 L. R. 7 Ch. 636 ; 41 L. J. (N.S.) Bkcy. 62 ; 
 
 20 W. R. 849; 26 L. T. (N.S.) 931 ... 
 L. R. 10 Ch. 297; 44 L. J. (N.S.) Ch. 
 
 500; 23 W. R. 460; 32 L. T. (N.S.) 
 
 628 
 
 8 Ch. D. 645 ; 47 L. J. (N.S.) Ch. 681 ; 
 26 W. R. 581 ; 38 L. T. (N.S.) 577 ... 
 
 2Atk. 511 
 
 1 Sid. 133 
 
 ;) h: Eq. Rep. 595 
 
 14W. R. 1(58 
 
 15Ch. D. 604; 49 L. J. (N.S.) Ch 
 
 29 AV. R. 45 
 
 8 Ch. D. 218 ; 47 L. J. Bkcv. 70; 26 
 
 439;38L. T. (N.S.) 229 
 
 4 Hare, 67... 
 
 40 L. J. (N.S.) Ch. 624 
 
 2 A^ern. 490 
 
 L. ];.7Ex. 583; 21 L.J. Ex.223 
 
 2 Mv. &Cr. 459 
 
 10(}. B. 1). 572; 9 0. B. D. 83... 
 
 10 Jur. (N.S.) 327 
 
 6AV. R. 92 
 
 1 Dowl. 357 
 
 514 ; 
 W.K 
 
 "i 
 I 
 
 167, .398 
 2G5, 491, 545 
 
 410 
 
 283 
 
 179 
 
 4(59 
 
 104 
 
 126 
 
 51 
 
 180 
 ■ 197 
 207, 2(;6, 368 
 95, 96, 252 
 
 435 
 437, 441 
 
 491 
 
 542 
 266, 267, 280 
 
 197 
 
 227 
 
 143, 144 
 95, 96, 252 
 
 311 
 
 539 
 
 33, 301, 31(\ 312 
 
 192 
 
 247, 255, 283 
 
 391 
 
 442 
 
 149, 152 
 
 G7, 167, 313, 390, 
 
 398, 400, 458, 459 
 
 193, 514, 550 
 
 18, 20, 279, 54G 
 
 113, 407 
 
 472, 473 
 
 253, 311 
 
 99, no 
 
 41(1 
 1S(J
 
 xxxiv 
 
 TABLE OF CASES. 
 
 Names of Cases. 
 
 Ford r. (ire.y 
 
 — r. Kettle ... 
 
 — v. Olden 
 
 — V. Stobridge 
 
 — V. Saiart 
 
 Fordyce v. "Willi.s 
 Forsliaw V. "Welsby ... 
 
 Forster v. Hale 
 
 Fort V. Clark 
 
 Fortesciie v. Bariiett ... 
 Foster, In re 
 
 — and Lister, //( re 
 
 — ?•. Great West-) 
 prn Eaihvay Co. j 
 Fotiiergill v. Fothergill 
 Foulger v. Taylor 
 Fowkes V. Pascoe 
 
 Fowler v. Fowler 
 
 — V. Foster 
 
 — r. Wyatt 
 
 Fox V. Hawks 
 
 — V. Mackreth 
 Foxley, Exparte 
 
 Frampton ?•. Frampton 
 Francis v. Brooking ... 
 Franklin v. Thornebury 
 
 Fraser v. Thompson ... 
 
 Freeman v. Pope 
 
 French *•. French 
 
 Friend r. Harrison .. 
 Fulton V. Andrews .. 
 
 Furber, Ex parte 
 
 — V. Abrey 
 
 — *;. C.bb 
 
 Fursaker v. liobinson 
 Fury V. Smith 
 
 Gr.le V. Gale 
 
 "Wheue Rei'Dhteo. 
 
 Page. 
 
 1 Salk. -iS.i 
 
 y g. B. I), mo ; iji L J. (X.s.) q. b 
 
 558; 30 W. W. 741 ; 4i3 L. T. (N.S. 
 CGG 
 
 L. K. 3 Eq. 4!U ; 3ij L. J. (N.S.) Ch. 
 
 G51; 15 L. T. (N'.8.)55>i 
 
 Nels. 24 
 
 loBeav. 493 
 
 3 Bro. C. C. 577 '. 
 
 30 Beav. 243 ; 30 L. J. (N.S.) Cli. 331... 
 
 3 Ves. (59i3 
 
 1 Russ. GOl 
 
 3My. &K. 30 
 
 54 L. J. (N.S.) Ch. 73 
 
 G Ch. I). 87 ; 4G L. J. (N.S.) Ch. 480 ; J 
 25 W. R. 553 ; 3G L. T. (N.S.) 582 1 
 
 8 Q. B. D. 515; 51 L. J. (X.S.) Q. B. 
 233 ; 30 W. 1!. 308 ; 4G L. T. (X.S.) 74 
 Freem. Cli. 257 ... 
 
 3 H. & N. 202 : 1 L. T. (X.S.) 57 
 
 L. R. 10 Ch. 343; 44 L. J. (N.S.) Ch. 
 1 3G7 ; 23 W. R. 538 ; 32 L. T. (N.S.) 
 i 545 
 
 4DeG. &J. 250 !., 
 
 28 L. J. (X.S.) g. B. 210 
 
 24 Beav. 232 
 
 13 Ch. D. 822 ; 40 L. J. (X.S.) Ch. 579 ; 
 28 W. R. G5G; 42 L. T. (N.S.) 672 ... 
 
 Wh. .S: Til. L. ('. Gth ed. vol. 1, 141 ... 
 
 L. R. 3 Ch. 515; IG "\V. R. 831 ; 18 L. T. 
 (N.S.)8G2 
 
 4 Beav. 287 ; 5 Jur. (N.S.) 980 
 
 19 Beav. 347 
 
 1 Vern. 132 
 
 4DeG. &J. G59; 1 Giff. 49 ... •' 
 
 L. R. 5 Ch. 538 ; L. R. 9 Eq. 20G ; 39 
 L. J. (N.S.) Ch. 148 ; 21 L. T. (N.S.)^ 
 816 
 
 6 De G. M. & G. 95 ; 25 L. J. ^X.S.) J 
 Ch. G12 i 
 
 2C. &P. .584 
 
 L. R. 7 H. 1>. 472 ; 46 L. J. (N.S.) Ch. 
 
 131: 24 W. R. 979 
 
 G Ch. 1). 1«1 : 36 L. T. (X.S.) 668 
 
 1 <'. &E. 186 
 
 17 g. B. 1). 459 
 
 Prec. (Jli. 475 
 
 1 Hud. & Br. (L. Rep.) 735 
 
 G Ch. I). 144 ; 46 L. J. (X.S.) Ch. 809 ; J 
 25 W. R. 772 ; .36 L. T. (N.S.) 690 j 
 
 383 
 
 157 
 
 502 
 
 166 
 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 
 
 4S7 
 
 422, 442 
 236 
 
 95, 96 
 
 32, 312, 446 
 
 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 
 4G9 
 
 498 
 154 
 139 
 130 
 390, 394 
 227 
 
 342, 343, 345, 346, 
 
 347, 349, 350, 351, 
 
 353, 359, 360, 391, 
 
 392
 
 TABLE OF CASES. 
 
 XXXV 
 
 Names of Cases. 
 
 Gale r. Liiulo . . . 
 
 — l\ \\'illi;uii;i(iii 
 
 Cames, JCj: parte 
 
 Candy v. (Jandy 
 
 Gannon i'. White 
 Gardiner u. (iardiner, 
 
 — V. Painter , 
 Gardner v. Marshall . 
 
 — <». Shannon , 
 
 — r. Smart 
 Gardner v. Shaw 
 Garn v. (iarii 
 Garnett, lu re ... 
 
 — V. Bradley . 
 
 Garrard v. Dinorben ... 
 
 — V. Lauderdale 
 
 Garth v. Earnshaw ... 
 
 — V. Ersfield 
 
 — i\ Towusend ... 
 GaskelH'. Gaskell 
 Gates ?'. Fabian 
 
 — V. Mowry 
 
 Gee 11. Liddell 
 
 General Jleat Supply 
 Assoc. V. liouffler ... 
 
 "WiiKui: REPonxEi). 
 
 Geors 
 
 Milbank 
 
 Gewen v. Roll 
 
 Gibbins v. Pliillips ... 
 Gibbons v. Hickson ... 
 
 Gibbs ?'. Grady 
 
 — V. Harding 
 
 Gibson ?'. J>outts 
 
 — r. Head 
 
 — r. Itiissell 
 Gilbert ?'. Overton 
 Gilchrist, Ex jjcirte ... 
 
 — r. Cator ... 
 
 — V. Herbert... 
 
 Giles '('. Koe 
 
 Gilham v. Locke 
 Gillespie v. Van Eg- 
 
 mont 
 
 Girardy v, Richardson 
 
 Girling v. Lowther ... 
 
 Girton i\ C'hampneys 
 Gladstone v. Gladstone 
 
 — V. Padwick 
 
 Glaister v. Hewer 
 
 Glanvill, In ra 
 
 Glave V. Wentworth... 
 
 1 A'orn. 475 
 
 ■S .M. .^ \V. 105 
 
 12 Ch. 1). ;]14 ; '27 W. P. 7 H ; 40 L. T.J 
 (N.S.) 78-J 1 
 
 ;io < *li. 1). 57 ; 54 L. J. (N.S.) Ch. n54 ; 
 ;j;j W. ]!. Ho;i ; 5;] L. T. (N.S.) ;!0G ... 
 
 2 Ir. Eq. Rep. 207 
 
 12 h-. C. L. R. ;505 
 
 Sel. (Ja. Ch. Go 
 
 14 Sim. 575 
 
 2 Sch. & Lef. 2;]0 
 
 1 C. & E. 14 
 
 19 W. R. 753 ; 24 L. T. ^X.S.) ;U9 ... 
 11; Ves. 2G8 
 
 ;il VAi. D. 1 
 
 3 App. Cas. 944 ; 48 L. J. (N.S.) Ex. 
 18G; 2G W. R. 098; 39 L. T. (N.S.) 
 2(;i 
 
 5 Hare, 213 
 
 2 Russ.'&My. 451 ... • 
 
 3Y. &C. 584 
 
 Sir J. Bridg. 22 -^ 
 
 L. R. 7 Eq. 220; 17 W. R. Di- 123 ... 
 2Y. &J. 502 
 
 19 W. R. (31 
 
 15 Gray (JIass.), 504 
 
 35 Beav. G21 
 
 41 L. T. (N.S.) 719; 40 L. T. (N.S.) 12(3 
 
 9 Ves. 190 
 
 Cro. Jac. 132 
 
 (3 L. J. (O.S.) K. B. 2(39 
 
 ,55 L. J. (N.S.) Ch. 119 
 
 41 L. J. (N.S.) Ch. 103 ; 20 W. R. 257 
 
 L. R. 5 Ch. 3315 ; L. R. 8 Eq. 490 ; 39 
 
 L. J. (N.S.) Ch. 374 ; 18 W. R. 3G1 ... 
 
 4M. &G. 1(;9 
 
 17 W. R. 98G 
 
 2 Y. & C. C. C. 104 
 
 2 H. &M. 110 
 
 17 Q. B. 1). 521; 34 AV. R. 709 
 
 1 l)e G. & Sni. 188 
 
 20 W. R. 348; 2G L. T. 381 
 
 2 Dicken.s, 570 
 
 9 Xes. G12 
 
 Chy. 533 
 
 1 Esp. 13 
 
 2 Rep. Ch. 13G -' 
 
 1 Bing. 201 
 
 1 P. 1). 442 ; 45 L. J. (N.S.) P. 82 ; 24 
 W. R. 739; 35 L. T. (N.S.) 380 
 
 L. R. G E.x. 203; 40 L. J. (N.S.) Ex. 
 154 ; 19 W. R. 10G4 ; 25 L. T. (N.S.) 
 9G 
 
 8 Yes. 199 
 
 31 Ch. I). 532 
 
 G Q. B. 173, n 
 
 Pa UK. 
 
 375 
 171, 175, 2(3(3, 2(18 
 11, .58, G4, 72, 8.5, 
 
 97, 98, 99, 10(J, 
 
 104, 10(3, 107, 110 
 
 111, 118, 125 
 
 303, 392, 400 
 447 
 258 
 19.3, 3G7 
 300 
 4(14 
 KJO 
 15(5 
 394 
 480 
 
 544 
 
 398 
 107, 433, 435, 4G3 
 
 311 
 
 111,203,210,21.3, 
 
 224, 225, 232 
 
 395 
 437, 47G 
 
 3G9 
 
 120 
 
 443 
 
 476, 511, 512 
 
 SO, 1G3, 222, 230, 
 
 31G, 319, 320, 322, 
 
 326 
 
 202, 468 
 
 180 
 
 151 
 
 3(51 
 
 301, 304, .307, 309 
 
 101 
 
 92 
 
 487, 495, 496 
 
 428, 429, 447, 453 
 
 31 
 
 .300 
 
 .3G9 
 
 398 
 
 249, 256 
 
 224 
 
 469 
 
 164,224,225,232, 
 
 467 
 
 537, 538 
 
 342 
 
 loG 
 20 
 282 
 172
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Names ok (as 
 
 "W'heke REPOnXED. 
 
 I'AUK. 
 
 (Heaves r. Paine 
 Cilegg r. Rees 
 
 Glnssop »•. Pole 
 
 (Jlnuci'Ktershiie i"o. r. 
 Phillips j 
 
 fi lover, In re 
 
 tioJilard V. ( "avlible ... 
 
 (Jodsal r. Weill) 
 
 God win r. Kiisha 
 
 GolJicutt V. Townseiul 
 
 1 De (I. J. & S. 87 
 
 L. R. 7 Ch. 71 ; 41 L. J. (N.S.) Cb. 243; 
 
 •JO AV. R. I'.to ; To L. T. (N.S.) G21 ... 
 
 •5 M. & S. 175 
 
 12 Q. B. D. rj:« ; oS L. .1. (N.S.) Q. P. 
 4;t;j; 32 W. R. 522 j 50 L. T. (N.S.) 
 3(30 
 
 2 J. & 11. 180 
 
 Price, llU) 
 
 2 Keen, '.tit 
 
 2 Ami. .084 
 
 28Beav. 445 
 
 Goldsmith r. Russell ... i 5 
 
 ( 'h. 2 
 
 M. &(i.547; 25 L.J. (N.S.) 
 
 Goldstrom *'. Tallerman 
 
 Gooch's Case 
 
 Gooch V. DcaUin 
 Goodchild V. Doxigal ... 
 — V. Moses ... 
 Goodricke v. Taylor ... 
 
 Goodright r. Moses ... 
 
 Goodwin v. Goodwin... 
 Goodwyn v. Goodwyn 
 Gordon, In re 
 
 — V. Gordon 
 Gorge's Case 
 
 Goring v. Nash 
 
 Goss V. Neale 
 
 — r. Quinton 
 
 Gough V. Everard 
 Graham v. Chapman... 
 
 — V. Furber 
 
 — V. Johnson ... 
 
 — r. O'Kecfe ... 
 Grant v. Grant 
 
 — V. Shaw 
 
 Gray r. Gray 
 
 — V. .Tones 
 
 — V. Legard 
 
 — V. Mathias 
 Great AVestern Ry. Co. 
 
 V. Ciipp.s 
 
 Greaves r. Iloulditch... 
 Cireen, In re 
 
 — V. Attcnborough 
 
 V. Brand . . . 
 V. Paterson 
 
 17 Q. B. D. 80 
 5 Rep. GO a 
 
 1 New R. 95 
 3Ch. D. (j.-j2; : 
 
 2 W. Bl. 1019 
 2 De G. & Sm. 
 
 2 ^\. Bl. 1019 
 
 1 Ch. Rep. 92 
 1 Yes. 220 
 L 
 
 34 W. R. 459 
 
 14 \V 
 135 
 
 R. 900 
 
 R. 10 Ch. 192; 44 L. J. (N.S.) Ch. 
 208; 23 W. R. 700 ; 32 h. T. (N.S.) 
 
 348 
 3 Sw. 400 
 Cro. Car. 550 
 
 3 Atk. 188 
 
 5J. B. Moo. 19 
 
 3 Man. & G. 825; 4 Scott (N.S.), 471 ... 
 2 H. & C. 1 ; 32 L. J. (N.S.) E.x. 210 ... 
 
 12 C. B. (N.S.) 85 
 
 14 C. B. (N.S.) 410: 2 C. & P. 452; 
 
 23 L. J. (N.S.) C. P. 51 ; 18 .Tur. 220 
 L. R. 8 Eq. 30 ; 38 L.J. (N.S.) Ch. .374 ; 
 
 17 W. R. 810; 21 L. T. (N.S.) 77 ... 
 
 10 Jr. Ch. Rep. 1 
 
 34 Beav. 024 ; 13 W. R. 1057 : 12 L. T. 
 
 (N.S.) 721 
 
 L. R. 7CJ. B. 700; 41 L. J. (N.S.) (^ B. 
 
 305 
 
 2 Sim. (N.S.) 273 
 
 14 C. B. (N.S.) 743 ; 2 New Rep. 281 ... 
 
 9L. J. (().S.)Ch. 80 
 
 5 Yes. 280 
 
 5llaie, 91 
 
 2 I'rici-. 147 
 
 11 Ir. Eq. Rep. .0(t2 
 
 3 H. & C. 408; 34 L. J. (N.S.) Ex 
 
 11 Jur. (N.S.) 141; 13 W. R 
 1 ].. T. 513 
 
 ' Times Rep. (1880) 79 ... 
 
 32 V\\. I). 95 ; 34 \\. \\. 
 (N.S.) 738 
 
 185 
 
 88; 
 ; 11 
 
 724 ; -A L. T. 
 
 296 
 
 433, 435 
 179 
 
 20, 31 
 
 440, 441 
 
 484 
 
 446 
 
 395 
 
 67, 107, 373, 379, 
 
 380, 380 
 
 23, 54, 75, 79, 80, 
 
 170,245,249,524, 
 
 525, 520, 527, 530, 
 
 540, 547 
 
 139 
 
 100, 193, 195, 197, 
 
 333, 518 
 
 100 
 
 294 
 
 328 
 
 59, 171, 252 
 
 191, 192, 193, 220, 
 
 284, 287, 289 
 
 470 
 
 394, 395 
 
 483 
 
 270 
 
 200, 202, 234 
 
 275, 308, .390, 391, 
 
 395, 399, 534 
 
 107, 110, 111, 120 
 
 172 
 
 11.5, 152 
 
 252 
 
 50, 02, 08, 118 
 
 483 
 2 GO 
 
 407, 409, 421, 442 
 
 158, lOO 
 438, 440 
 
 160 
 
 344 
 
 409 
 
 275 
 •_'5('i 
 
 123 
 88, 98, 99, 106, 
 
 110 
 
 .38, 41, 51, 258, 
 
 259, 30H, ;i«9, 391, 
 
 392, 443
 
 TABLE OF CASES. 
 
 XXXVU 
 
 Names of Cases. 
 
 Where Repokted. 
 
 Cii'ceiio /•. O'Kciirney 
 Greener, E,r i^aiic ... 
 
 Grconslaile v. Dare ... 
 Greenwood v. Green- 
 wood 
 
 Greer, In 7'e 
 
 CJresley r. Mousley ... 
 Grey r. Kentish 
 Griffin r. De Venille ... 
 — r. Stanhope ... 
 Griflitb, Ejrintrlc 
 
 — '/'. Ricketts ... 
 
 Griffiths i\ Kobins 
 
 (Trigsby v. (.'ox 
 
 Grogan r. Cooke 
 
 (Jrosvunor v. Sherratt 
 
 Grove's TrnsLs, lie ... 
 
 (iroves i\ Groves 
 
 Guardian Assurance 
 Co. V. V^iscount 
 Avonniore 
 
 Guardians of" St. Leon- 
 ard's, Shoreditcb, v. 
 Franklin 
 
 Gugcn V. Sampson ... 
 
 Gully V. Bishop of 
 E.xeter 
 
 Guthrie v. AVood 
 
 Guy V. Pearkes 
 
 H V. W ... 
 
 Haigh V. Kayo 
 
 Hale r. Allnutt 
 
 • — V. Lamb 
 
 — V. Metropolitan ) 
 Saloon Co. ... j 
 
 Hales V. Cox 
 
 Halfpenny v. Ballet ... 
 Hall, III, re 
 
 — E.r 2^nrte ... 
 
 — E.r jjaiie ... 
 
 — r. i)yson ... 
 
 — r. Hall ... 
 
 — i: Hall ... 
 
 — r. Pahner ... 
 ILillas r. liobinson 
 
 Ilalton V. English 
 Hanier ?'. Tilsey 
 Hamilton v. ( 'liainc 
 
 — V. Hector 
 
 2 L. C. L. R. 207 
 
 40 Ji. J. (N.S.) J3kcv. 70 : .% 1,. T. (N.S.) j, 
 
 781 
 
 20 Bear. I'Sl 
 
 2l)eG. &Sm. 28 
 
 L-. R. 11 Eq. 502 
 
 4l)e G. &J. 78 
 
 1 Atk. 280 
 
 ■5 P. Wms. i;;i 
 
 Cro. Jac. 454 
 
 2;] Ch. 1). 09; 52 L. J. (N.S.) Ch. 717; 
 ;;i W. R. 878 ; 48 L. T. (N.S.) 450 ... 
 
 7 Hare, :)07 
 
 ;; Mad. l!ll 
 
 1 Yes. 217 
 
 2 j'.all &B. 233 
 
 28 Beav. 05'J 
 
 8(iiir. 575 
 
 3 Y. &.J. 103 
 
 Ir. R. (•) Eq. 3'Jl 
 
 3('. P. 1). 377 
 
 4 F. & P. 974 
 
 5 15ing. 171 ; 2 Moo. & P. 105 
 1 Stark. 307 
 
 18 Yes. 197 
 
 3K. &.T. 382 
 
 L. R. 7 Ch. 409; 41 L. J. (N.S.) Ch. 
 507 ; 20 AY. R. 597 ; 20 L. T. (N.S.) 
 075 
 
 18 C. B. (X.S.) 5U5 
 
 2 Ed. 292 
 
 4 Drew. 492 ; 28 L. .L (X.S.) Ch. 777 -' 
 
 32 Beav. 118; 1 N. R. 344 ... -j 
 
 2 Yern. 373 
 
 14 Q. B. 1). 380; 54 L. .1. (N.S.) Q. B. 
 43; 33 \V. K. 228; 51 L. T. (N.S.) 
 795 
 
 IV. &B. 112 
 
 19('h. 1). 5S(i 
 
 17 (,). P.. 785: 21 1.. .1. <.». P.. 224 
 
 l>. i;. 1 P. & J). 481 
 
 P. i;. 8 Ch. 430; 42 L. .T. (N.S.) Ch. 
 
 444; 21 AV. R. 373; 28 L. T. (N.S.) 
 
 383 
 
 3 Hare, 532 
 
 15 C). B. 1). 288; 54 L. J. (N.S.) Q. B. 
 304; 33 A\'. R. 420 
 
 7E. &J5. 94 , 
 
 1 .lolin. 480 
 
 7 () i; 1). :M9: .■)!> L. .1. (N.S.) Q. B. 
 450; 29 W. 1!. 070; 41 L. T. (N.S.) 
 704 
 
 J>. R. Cli. 7U1; J-. P. 13 F<1- 511 
 
 Page. 
 
 283, 285, 289, 294 
 
 93 
 
 505 
 
 270 
 
 258 
 
 502, 508 
 
 447 
 
 494 
 
 99, 212, 213, 370 
 
 102, 103 
 435 
 
 490 
 
 491, 492 
 
 20, 247 
 
 480, 481 
 
 300 
 
 389, 390, 473 
 
 318, 320, 321 
 
 542 
 40, 50, 02, 100 
 
 202, 207 
 134 
 18 
 
 3P2 
 
 470 
 90, 244, 245, 252 
 
 389, 390, 534 
 72, 79, 80, 93, 100, 
 
 113, 545 
 
 209, 228, 23,5, 398, 
 
 400, 408, 535, 53(3 
 
 384, 380 
 
 139, Mi;, 149 
 223, 308 
 
 103 
 
 104 
 480, 497 
 
 461, .500, 501 
 398, 458, 469, 472 
 
 101 
 158 
 
 143 
 312
 
 XXX VIU 
 
 TAiiLE or CASES. 
 
 Names ok Cases. 
 
 Wheke Rei-orteu. 
 
 Hamilton (Duke of) r. 
 Lord Moliun 
 
 — r. Mulluy ... 
 
 — r. IJiissell ... 
 Hamlyu »'. IJetteley ... 
 
 Hammcrsie}' r. De Uiel 
 Hammond v. Hocking 
 
 Hammonds c. Barrett 
 
 ilams, //( re 
 
 Hanks r. Palling 
 Hanley r. Pear.-Jon ... 
 
 Harcourt, In re 
 
 Hanley v. (Treeii 
 Haidliam v. Roberts ... 
 Harding, Ex parte ... 
 
 — ?•. Harding... 
 Hardwick, la re 
 Harland v. ISinks 
 Harman v. Eishar ... 
 
 — V. Ilicliard.-^ ... 
 
 Harms v. Par.sons 
 Harris r. Petherick ... 
 
 — r. liickett 
 
 — r. TrenicuUeere 
 Harrison v. <'ohen 
 
 — V. (iuest 
 
 — r. Southcotc 
 Hart V. Hart 
 
 — r. Jliddlehnrst ... 
 Hartoppr. Hartopp .. 
 Harvey v. Asliley 
 
 — r. ]\Iount 
 Hasclinton r. Ciil 
 Has.scUs V. Simpson ... 
 
 Hatch i;. Hatch 
 
 Hatton V. English ... 
 
 — r. Neal 
 
 Hauxwell, Ex parte ... 
 
 Hawcs V. Leader 
 
 — V. AVvatt 
 Hawkins v. Allen 
 
 — V. Gathercole 
 Hawkyiis v. Obyn 
 Haworth I'. Bostock ... 
 Hayes v. Alliance Co. 
 Hay man, Kx parte ... 
 
 Haynes r. Hay ton ... 
 Haythorn r. Bush 
 Heap V. Tongc 
 
 Heartley v. Nicholson 
 
 1 P. Wms. lis 
 
 5 L. P. Ir. ;):5i) 
 
 1 Croncli (Amer.), :!(lit 
 
 5 ( ". P. D. ;$-27 ; 4'.t I>. .1. uN'.S.) ( '. P. 4!;j ; 
 
 •.'S W. P. tl.^MJ ; 24 L. T. (N'.S.) 373 ... 
 
 \i C). &F. 45 
 
 12 Q. B. D. 201; .')3 L. J. (N.S.) Q. B. 
 
 20."); .00 L. T. (N.S.) 207 
 
 17 W. P. 1078; 21 L. T. (N.S.) 321 ... 
 10 \r. rii. Pvep. 100 
 
 I ti E. & B. ll.-)'J ; 25 L. J. (N.S.) g. B. 375 
 i i:} Ch. 1). 545 ; 41 L. T. (N.S.) 073 ... 
 
 i 31 W. P. 578 
 
 I 12 Beav. 182 
 
 1 Vern. 1:52 
 
 L. P. 15 Ej. 223 ; 42 L. .1. (N.S.) Bkcy. 
 30; 28 L. T. (N.S.) 241 
 
 17Q. B. J). 442 
 
 55 L. .J. (N.S.) Q. B. 492 ; 34 W. P. 775 
 
 loQ. B. 713 
 
 Loflft, 472 
 
 10 Hare, 81 -, 
 
 32 Beav. .328: 32 L. .J. (N.S.) Ch. 247 ... 
 4 (i. P.. ]). Oil; 48 L. .1. (N.S.) Q. B. 
 
 .521 . 41 L. y. (N.S.) 140 
 
 4 H. & N. 5 ; 28 L. J. (N.S.) Ex. 197 ... 
 
 15 Vcs. 40 
 
 32 L. T. (N.S.) 719 
 
 De G. JJ. & G. 424; 8 H. L. C. 481 ... 
 
 1 Atk. .528 
 
 18 (-'h. D. 070 ; .50 L. J. (N.S.^ Cli. 097 ; 
 .30 W. P. 8 ; 45 L. T. (N.S.j 13 
 
 3 Atk. 377 
 
 21 Beav. 2.59 
 
 3 Atk. 007 
 
 8 Beav. 439 
 
 3T. P. 620 
 
 1 Dong. 89 
 
 9 Yes. 290 ■' 
 
 7 E. & B. 94; 20 L. .T. Q. ]!. 101 
 
 J5. N. P. 90 a, 201 ; 1 Brownlow, 45 ... 
 23 Ch. D. 020 ; .52 L. .T. (N.S.) ( 'h. 737 ; I 
 
 31 W. P. 711 ; 48 L. T. ;N'.S.) 742 )' 
 
 Cro. Jar. 271 
 
 3 Pro. C. C. 1,50 
 
 L. ]i. 10 Eq. 240; 40 L. J. (N.S.) Ch. 
 
 23; 23 L. T. (N.S.) 451 
 
 1 Sim. (N.S.) 03 
 
 2 Atk. 549 
 
 4Y.&C. C.C.I 
 
 8 L. P. Ir. 1.54 
 
 8CI1.D. 11: 47 L. .T. (N.S.I Bk.y. 54 
 
 W. P. 597 ; 3« L. T. (N.S.) 238 
 
 L.J. (O.S.) K. B. 231 
 
 2 Dowl. 041 
 
 9 Hare, 90 
 
 L. P.19 Eq. 233 ; 44 L. J. (N.S.) Ch.277; ( 
 23 W. P. 374 ; .32 L. 'J\ (N.S.) 821 ) 
 
 20 
 
 Heath V. Chadwick ... 2 Ph. 049 
 
 Paue. 
 
 494 
 
 258 
 
 3, 120, 312 
 
 142, 14.5 
 321, 372, 373, 384 
 
 139 
 339 
 159 
 268 
 
 481, 482 
 
 407, 408 
 
 89, 92 
 
 394 
 
 151, 153 
 
 402, 404, 44(;, 451 
 
 140, 147, 149 
 
 107, 435 
 
 94 
 
 32, 58, 80, 93, 164, 
 
 202, 203, 260, 267, 
 
 208, 209 
 
 469 
 
 545 
 93, 252 
 552 
 9(J 
 248 
 I 539 
 
 I 304, 308 
 
 ! 315 
 
 ' 491 
 
 334, 330, .342, .343 
 49.5, 490, 551 
 120, 123, 339 
 12, 18 
 484, 493, 494, 507, 
 509, .552 
 I 158 
 
 191, 203, 241 
 95, 90, 149, 1.54, 
 
 252 
 
 69, 70, 470, 525 
 
 489 
 
 412 
 227 
 450 
 307 
 422, 423, 441 
 
 128 
 172 
 
 ISO 
 
 300, 31)2 
 402,403,404,400, 
 407,417,439,440, 
 
 445 
 
 522
 
 TABLE OF CASES. 
 
 XXXIX 
 
 Xamks oi-' Cases. 
 
 Heatlicole v. ( 'rook- 
 
 fihiuiks 
 
 ITcilges r. Clark 
 Hcg;irty r. King 
 
 iluisier c. Chirk 
 
 Hemlerson v. Lloyd ... 
 Henriques v. Beiisiisau 
 Henry r. Armstrong... 
 Hensliall ?'. Forccl;iy... 
 Hepworth r. Heslop ... 
 Herbert v. Powis 
 Herman )'. .leuchncr... 
 
 Hernc r. Heme 
 
 Heron r. Heron 
 
 Hertford r. Lowtlicr... 
 Hervey v. Audland ... 
 
 — 2\ Hervey 
 
 Hetlicringtoii r. | 
 
 Groome i 
 
 Hmvor, In re 
 
 — V. Cox 
 
 Hewison r. Negus 
 Hewitt V. Kaye 
 
 — r. Loosemore... 
 
 — V. Eobinsou ... 
 
 Hevdon's Case 
 
 Hicks r. Barfitt 
 
 Hicksou V. Darlow ... 
 
 Higilcn r. "Watkinson 
 
 — r. Williamson 
 Higginbotliam v. 
 
 Holme 
 
 Higgins V. Pitt 
 
 — r. York Puild- 
 ings Co. 
 
 Higginson r. Kelly ... 
 Hill, KcjMrte 
 
 — Ex parte 
 
 — V. Campbell 
 
 — V. Bishop of I 
 
 Exeter ... J 
 
 — r. (iomnie 
 
 — r. Kirkwood 
 
 — r. Lane 
 
 — V. Wilson 
 
 Hillman,. Ej- parte ... 
 
 Hills V. Dovvnton 
 Hilton r. Eckersley ... 
 Hinde v. Collins 
 Hinde's Lessee v. Long- 
 worth 
 
 Hindlcy r. Westniealh 
 Hiiidson V, Weatherill 
 
 \\'iii;i;i: Kepcrted. 
 
 Pagk. 
 
 ■11 L. T. (N.S.) 'J18 
 
 2'r. j;. L'7 
 
 1 He tl. & Sm. ;{r)4 
 7 L. K. L-. 18; .5 L. 1!. \v. L'l'.i 
 
 2 Eq. Ca. .\b. 4(; 
 
 :JF. &F. 7 
 
 •20 W. i\. -.]-){) 
 IS Ch. J). CCS 
 21 W. I!. 210 
 CJ[are, .561 
 
 1 Bro. P. C. 355 
 
 15 Q. B. 1). 5()1 ; 54 L. J. (N.S.) Q. B. 
 
 Mi) ; 33 W. ]{. 006 ; 53 L. T. (N.S.) 94 
 ]5aniard. Ch. 430 
 
 2 Atk. KJO 
 
 7 J5eav. 1 ; 13 L. .J. Ch. 41 
 
 14 8ini. .531 
 
 1 Atk. 561 
 
 13 Q. B. 1). 789 ; 53 L. J. (N.S.) Q. B. 
 
 577; 33 AV. K. 103; 51 L. T. (N.S.) 
 
 412 
 
 21 Ch. 1). 871 ; 51 L. .L (N.S.) Ch. 901 ; 
 30 W. P. 954 ; 4C L. T. fX.S.I 85C ... 
 
 3 E. & E. 428 ; 30 L. .[. ^N.S.) Q. B. 73 
 
 IC Beav. 594; 22 L. J. (X.S.) Ch. 655 -' 
 
 L. P. 6 Eq. 198; 37 L. J. (N.S.) Ch. 
 (■)33; IC W. Pi. 835 ... 
 
 9 Hare, 449 
 
 15W. P. 77 
 
 3 Rep. 7 a, 8 a 
 
 4 Camp. 235 
 23 Ch. D. C90 
 
 (N.S.) 449 
 
 App. No. X. ... . • 
 App. No. X. 
 
 19 Ves. 88 
 
 4 Ex. 312 ... 
 
 2 Atk. 107 
 
 1 Ball &B. 252 
 
 17Q. B. L». 74 
 
 23 Ch. D. 695 ; 52 L. J. (N.S.) Ch. 903 ; 
 
 32 W. P. 177 : 49 L. T. (N.S.) 278 ... 
 L. P. 10 C. P. 222 ; 44 L. J. (N.S.) C. P. 
 
 97 ; 23 AV. P. 336 ; 32 L. T. (N.S.) 59 
 
 f 
 
 ■( 
 
 1 Beav. .540 
 
 28 AV. P. 358 
 
 L. P. 11 Eq. 215 . 
 L. P. 8 Cii. 888 
 
 817; 21 W. P. 
 
 238 
 
 10 Ch. H. 622 ; 48 L. J. (N.S.) Bkcy. 77 ; 
 27 AV. P. 567 ; 40 L. T. (N.S.) 177 ... 
 
 5 Ves. 557... 
 
 CE. &B. 47 
 
 Cro. .lac. isl 
 
 11 AVhcaton, IH'.I ■ 
 
 6 J5. & C. 20(1 
 
 5 De G. JJ. & C. 301 
 
 1 W. i;. 417 ; 48 L. T. 
 
 2 Taunt. 69 
 
 42 L. J. (N.S.) Ch. 
 757 ; 29 L. T. (N.S.) 
 
 .389 
 
 29(5 
 
 498 
 
 315, 319 
 
 14, 24, 33, 50, 66 
 
 433 
 461, 485, £00, 501 
 
 499 
 
 398 
 
 256 
 
 4(;9 
 489 
 489 
 17 
 167, 390, .398, 400 
 396, 397 
 
 1.39 
 
 I- 
 
 156, 157 
 ■ 159 
 247, 276, 281, 283, 
 285, 288, 290 
 
 409, 410, 4,30 
 197 
 4,55 
 204 
 181 
 
 137, 154 
 450 
 577 
 
 89, 3.38 
 104 
 
 528, .529 
 
 338, 339 
 
 160 
 
 102, 103 
 
 541 
 218,220,262, 
 
 533 
 .391, 392 
 155, 15C 
 
 531 
 
 203, 
 
 407 
 
 43, 217, 2.57, 259 
 
 394, 397 
 
 4("i<t 
 
 220 
 
 54 
 313 
 497
 
 xl 
 
 TA13LE OF CASES. 
 
 Kames of Casks. 
 
 Uinton, Ex parte 
 
 — c. Hintun 
 
 — r. Scot 
 
 — ?•. Toye 
 Hitchcock r. C..kcr ... 
 
 — r. (_iiddings 
 
 Hobls i: Hull 
 
 — V. Norton 
 Hobday i\ Peters 
 Hobson c. Thelluson ... 
 
 Hockley v. Mawbcy ... 
 Hodges V. Hodges 
 Hodgkin, Exjjurtc ... 
 
 Hodgkinson r. Fletclier 
 
 Hodgson r. Hutchenson 
 
 — r. Newman... 
 
 Hoffman v. Pitt 
 
 Hogan r. Healey 
 Hogarth v. I'hillips ... 
 
 Hoghton c. Hoghton... 
 
 Where Repokti;i). 
 
 14Ves. 598 
 
 •_' Yes. Col 
 
 Moselev, .-{.'JO 
 
 1 Atk.4Grj 
 
 G A. & K. 438 
 
 i Price, i;J5 
 
 1 Co.\-, 440 
 
 1 Vcrn. i;)(j 
 
 'JS Pcav. (;u.") 
 
 L. P. 2 g. B. (348; Ij W. P. lo.JT ; 
 L. T. (X.S.) 837 
 
 I Yes. 143 
 
 •25 \V. P. 1G2 
 
 L. P. 20 Eq. 746; 44 L. .1. (N.S.) li 
 
 107 ; 24 W. P. 08 ; 32 P. T. (X.S 
 
 4 ("ampb. 20 
 
 5 Yin. Ah. 522 
 
 5T. P. 230, n 
 
 5Esp. 22 
 
 II Ir. C. L. P. H'J 
 
 4 Drew. 300 
 
 15 Bcav. 278 ; 21 L. J. (N.«.) Ch. 482 ; 
 17 Jur. Oy 
 
 Paue. 
 
 key. 
 
 ) 02 
 
 Holbird L\ Anderson ... ' 5 T. P. 235 
 
 Holcraft's Case 
 
 Holderness r. Paiikin 
 Holford V. Holford .. 
 HoUamby v. Oldrievo 
 Holland V. Hodgson . . 
 
 HoUingswortli v. "White 
 
 Holloway r. Heddiiig- 
 
 tou 
 
 — V. :\Iillard ... 
 
 Holman v. Lyncs 
 Holmes' Estate, lie ... 
 
 Holmes v. Penney 
 
 Holroj-d V. Marshall .. 
 
 Holt t;. Kelly 
 
 Homan, Ex parte 
 Homer v. Ashford 
 Hoiieywood v. Selwia 
 HiKiniaii, Ex jHirte, ) 
 Itii \'iiiing ... / 
 Hooper's Trusts, lie ... 
 Hooper r. Parmcnter... 
 Hope V. Haniian 
 Hopkins v. .Myall 
 Horan r. Macmahon ... 
 
 Hoin r. Baker 
 
 — V. Horn 
 
 Dyer. 2();) a 
 
 Jur. (N.S.) 028. 
 
 1 Ch. Ca. 217 
 W. N. (1800) 95 . 
 L. P. 7 C. P. 328 ; 
 
 140 ; 20 W. P. 
 709 
 10 W. P. 019 ; 
 
 8 Sim. 324 
 
 1 Mad. 414 
 
 4 DoG. M. &{;. : 
 3 (Jiir. 345... 
 
 41 L. .1. (N.8.)C. 
 990 ; 20 L. T. (N. 
 
 L. T. iN.S.) 004 
 
 i70 
 
 3 K. & J. 90; 20 L. J. (N.S.) Ch. 179 - 
 
 lOH. L.(". 191; 33 L.. I. (X.S.U 'ii. 193 ; 
 11 W. P. 171; 7 L. T. iX.S.) 172; 9 
 Jur. (X.S.) 213 
 
 13 Ir. L. Pep. 3.3 
 
 I.. It. 12 Kq. 59,S; 10 \V. l,'. KITS 
 
 -Jiing. 322 
 
 3 Atk. 270 
 
 L. P. 10 Eq. 03 ; ;(9 L. J. (X.S.) IJkcv. 1 ; 
 18 W. P. 450; 22 L. T. (N.S.) 179 ...' 
 
 W. P. 824 
 
 10 W. 1!. 048 
 
 11 Jur. (X.S.) 10'J7 
 
 2 Puss. & Mv. HO 
 
 15 J.. 1!. Ir. 471 .".' 
 
 Sra. L. C. 8lli ed. vrl. 2, 21 1 
 
 Amb. 79 
 
 338 
 512 
 
 2(17 
 4(,'.l 
 2(38 
 247, 300, 310, 312, 
 531 
 197 
 51 
 
 435 
 
 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, 100, 
 
 108, 109, 110,125, 
 
 252 
 
 111 
 
 528, 533 
 
 189, 219, 514 
 
 39, 245 
 
 115 
 154 
 
 294, 3(38, 390, 447 
 4, 13, 40, 45, 46, 
 50, 53, 56, 03, 75, 
 77, 516, 519, 520 
 502 
 4D3, 503 
 14, 31,40, 47, 48, 
 01, 04, 76, 80, 82, 
 85, 93, 110, 111, 
 1(33, 171,247,250, 
 252, 339, 520, 545 
 
 160, 161 
 50 
 151 
 409 
 539 
 
 151, 158, 1(30 
 301) 
 158 
 453 
 895 
 499, 501 
 135 
 18
 
 TABLE OF CASES. 
 
 xli 
 
 K.v.Miis OF Cases. 
 
 Horiiblower v. rroiul... 
 llonic V. Hughes 
 
 HoiTocks ?;. Ixigby ... 
 
 irot'scniiin r. Gibson ... 
 
 Hospital of St. Katiie- ) 
 
 I'inc, J-'.r parte J 
 
 Horton v. liilcy 
 
 ] 1 011,1^1 it on V. Tate 
 Howard v. Hanis 
 
 — V. Hodges ... 
 Howes V. Leader 
 Hudson's Case, fjady... 
 Hughes V. I.iittlc 
 
 — V. Seamir 
 
 — V. Stnlibs 
 
 — /•. Wills 
 
 Hugucnin r. Baseloy... 
 
 Huhue V. Tenant 
 
 Humble r. Mitcliell ... 
 Hume V. Kundell 
 Humphreys v. Green... 
 
 — V. Pensam... 
 Hungerford v. Earle ... 
 Hunning v. Williamson 
 
 Hunsden i;. Cheney ... 
 Hunt r. (iatelcy 
 
 — r. Hooper 
 
 — V. Hunt 
 
 — V. MaunscU 
 Hunter f. Atkins 
 
 — L\ Walters 
 
 Husband r. Pollard ... 
 Hutson r. Cruttwell ... 
 Huxtable, Ex ixirte ... 
 
 Hyde n. Price 
 
 Hylton r. Hylton 
 
 Ibberson r. Nock 
 
 Imray v. Magnay 
 
 Inglib.s ?'. (irant 
 
 Irnluun r. Child 
 
 Irons r. Sniallpiece ... 
 
 Jrwin /•. Ivogcrs 
 
 Isaac V. Hughes 
 
 — V. Spilsbury 
 
 IthcU V. Beane 
 
 Izard, Ex iKirte ... 
 
 Whkhe Ekported. 
 
 •2 B. & Aid. :5-J7 
 
 Q. B. 1). (i7G; 2'J W. K. 57G ; 44 L. T. 
 (N..S.)(i78 
 
 9 Ch. 1). IHO; 47 i-. .1. (X.S.) Ch. KOO ; 
 ■JG W. II. 714 ; :]H L. T. (N.S.) 782 ... 
 
 Fortesc. ;3'2 ; Plowd. iJG ... 
 
 17 Ch. 1). ;]78; 2',) W. K. Id.'): H L. T. 
 
 (N.S.) 324 
 
 11 M. & \V.4!»2 
 
 ;! Y. & J. 480 
 
 1 Vern. 1110 
 
 1 Selw. N. P. so 
 
 Cro. Jac. 271 
 
 Prec. Ch. 2:3r) 
 
 17 (,). B. ]). 204; 34 W. P. 70;i 
 
 18 W. E. 108 
 
 I Hare, 4711 
 
 "J Hare, 74'J 
 
 II Ves. 2'.tO -' 
 
 I Jho. ('. ('. 17 ; 1 Wh. & Tli. L. C. (;th 
 ed. vol. 1, i'j.'iG ... 
 
 II A. &E. 205 
 
 (! 3Iad. 331 
 
 10 g. B. H. 148 ; 52 L. J. (N.K.) Q. B. 
 148 ; 48 L. T. (N.S.) GO ; 47 J. P. 
 244 
 
 1 My. &Cr. 580 
 
 2 Vern. 2G1 ; Freem. Ch. 120 ... ' 
 
 10 Q. B. 1). 459 ; 52 L. .T. (N. S.) Q. B. 400 ; 
 
 31 W. P. 924; 48 L. T. (N.S.) 392 ... 
 
 2 Vern. 150 
 
 F. Moo. 154 
 
 12 M. & AV. GG4 
 
 4 l)e G. F. & J. 221 ; 31 L. ,J. (N.S.) 
 
 Ch. IGl 
 
 1 Uow, 211 
 
 3My. &K. 113 ■' 
 
 L. P. 7 Ch. 75 ; 41 L. J. (N.S.) Ch. 175 ; 
 20 W. P. 218 ; 25 L. T. (N.S.) 7G5 ... 
 
 2 P. Wnis. 4G7 
 
 1 E. &B. 15 
 
 2 Ch. D. 54; 45 L. .1. (N.S.) Bkcy. 59; I 
 24 W. P. G85 ; 34 L. T. (N.S.) G05 / 
 
 3Ves. 44G 
 
 2 Ves. 547 
 
 Times l!ep. (188G) 411 
 11 M. & W. 207 ... 
 
 P.v(a:. 
 
 5 T. P. 530 
 
 1 Bro. C. C. 92 
 
 2 B. & Aid. .-)52 
 
 l-J Ir. Kq. l!ep. 1.59 
 
 J,, i;. '.I K(i. 191 ; 39 P. .r. ^X.S.) Ch. 
 
 ;;79; 22 L. T. (X.S.) 11 
 
 10 Bing. 3 
 
 1 Ves. 215 ' 
 
 L. P. 9 Ch. 271 ; 4;; !,. .1. (X.S.) 15kcv. 
 31 ; 2-J W. P. 342 ; .30 L. T. (N.S.) 7 
 
 17 
 
 148, 155 
 
 254, 257 
 537 
 
 544 
 
 104 
 
 37 
 
 4G7 
 
 4()9 
 
 19 
 
 459 
 
 139 
 
 2(;7, 481, 49G 
 
 43G, 440, 444 
 
 395 
 
 4G1, 480,483,487, 
 
 493, 495, 49G, 497, 
 
 499, 503, 504, 551 
 
 2G 
 17 
 894 
 
 374, 375 
 
 218 
 
 G7, 75, 7G, 112, 
 
 210, 531 
 
 539 
 197 
 242 
 33 
 
 301, 309, 314, 331 
 
 1G7, 518 
 
 4G1, 485, 48G, 493, 
 
 495, 502, 552 
 
 198 
 .390 
 252 
 32, 39, 42, 50, 58 
 1G3 
 303 
 484, 494 
 
 •112 
 33, 171. 175, 17G, 
 177, 17S, 179 
 i)8 
 470 
 407 
 552 
 
 3GG, 412 
 
 180 
 
 343, o4(«, 352, 353, 
 
 359 
 
 90, 152
 
 dil 
 
 TABLE OF CASES. 
 
 Names of Cases. 
 
 Jiukman »•. Marsliall. 
 Jackson, /.'./• j}«r/e 
 
 — In re... 
 
 — r. Bowie y . 
 
 — r. Lomas 
 
 — ?'. Town 
 James r. BvcUlir 
 
 — V. Couchman . 
 
 — ?-. Holmes 
 
 — r. James ... 
 Jameson r. Stein 
 Janes r. AVIiit bread .. 
 Jarman r. Woolloton.. 
 Jarratt )■. AKlam 
 
 Jason r. Jervis 
 
 Jay, Ex parte 
 
 JffTerys v. JefTerys .. 
 
 Jenkins v. Keyniis .. 
 Jenkiiisoii, In re 
 
 Jenkyn r. Vaiiglian .. 
 
 Jenncr v. Jeniior 
 Jennings v. Selleck .. 
 Jennings v. Thrognior- 
 
 t(in 
 
 Jenlein v. Kriight 
 Jeston )•. Key 
 
 Jewilt ?'. Eckhardt 
 Jewson r. ^Inulson 
 Jezepli V. Ingram 
 Jodrell I". Jorlrell 
 Johns V. James ... 
 
 Johnson, E.r parte 
 
 — la 
 
 — r. ?,all 
 
 — V. Holdsworth 
 
 — I". l.rgarJ ... 
 
 — r. Ogilby ... 
 
 — i\ Ohcnton ... 
 
 "Where Iiepokted. 
 
 M Vos. 581 
 
 14 Oil. I). 7-25 ; ■_".» W. U. Too ; 43 L. T. 
 
 (X.S.V272 
 
 4Cli. I). (WJ : 40 L.J. (N.S.) Bkev. ;3li : 
 
 •2.5 W. K. .^82 ; 35 L. T. (N.S.) U47... 
 
 Car. & M. 07 
 
 4T. K. 1()(', 
 
 4 Cowen, (104 
 
 4l{pav. (JllO 
 
 '29 Ch. D. 212 ; :)4 I>. J. (N.S. i ( 'h. 8;)H : i 
 
 :!8 W. \l 4.-J2 : 52 L. T. (N.S.) 344 / 
 4 De G. F. & J. 470; 31 L. J. (N.S.) 
 
 (Ml. .5(37 
 
 HI L T. (N.S.) 809 
 
 21 Beav. 5 
 
 11 ('. B. (N.S.)40i; 
 
 3 T. R. (V20 
 
 L. R. 9 Eq. 4('.3 : 39 L. J. < N.S.) V\\. 349 ; 
 
 22 L. T. (N.S.) 192 ..' 
 
 1 Vern. 2.S4' 
 
 L R. 9( ii . (-.97 : 43 L. J. ( .\'.S.) Bkcy. 122 ; 
 
 22 W. R. 907 ; 31 L. T. (N.S.) 2C,u ... 
 
 Cr. &r. 1:!S 
 
 1 Lev. 150; Ifarl. 395 
 
 I 
 15 Q. B. I). 441 ; .')4 L. J. (N.S.^ g. J5. 
 (501 '. 
 
 ( 
 3 Drew. 419 
 
 2 De G. F. & J. .3.V.I 
 
 1 Vein. 4(J7 
 
 Rv. & Mood. 251 
 
 2 J. & H. 325 
 
 L. R. 6 Ch. (;io ; 40 L. J. (N.S.) Ch. 
 
 503 ; 19 \y. R. 804 ; 25 L. T. (N.S.) 
 
 552 
 
 8Ch. I). 404 ; 20 W. L'. 415 
 
 2 Atk. 421 
 
 S 'Caunl. 838 
 
 9 IVav. 53 
 
 S ( 'h. J). 744 ; 47 L J. (N.S.) Ch. 853 : 1 
 
 20 W. R. 821 : 39 L. T. (N.S.) 54 ' ) 
 20 ( 'h. 1). 348 : 53 L. J. (N.S.) Ch. 703 ; 
 
 32 W. R. 093; 50 L. T. (N.S.) 214... 
 
 51 L. J. (N.S.) Ch. 503: 2o Ch. D. 
 389; 51 L. J. (N.S.^ Cli. 154; 4(i 
 L. T. (N.S.K72 
 
 5l)eG. &Sm. 85 
 
 1 Sim. (N.S.i 100 
 
 T. & ];. 2S1 : :; Mad. 2.^3 ... -' 
 
 3 P. Wms. 279 
 
 L. R. 4 Ex. 107: 38 1,. J. N.S.' Ex. 
 70: 17 W. ];. (-.75: 19 J>. T. (N.S.) 
 793 
 
 Page. 
 
 104 
 
 140, 154 
 
 154 
 
 41, 47 
 
 104 
 
 54 
 
 40.5, 441 
 
 401, 477, 481, 482, 
 
 492 
 
 408, 431 
 
 380 
 
 98, 99 
 
 124, 339, 340 
 
 477, 50.5, 506 
 309 
 
 151 
 272, 389,300, ,391, 
 392, 393, 412, 425, 
 
 457 
 
 112, 191.214,343, 
 
 344, 345, 353, 356, 
 
 301, 303 
 
 135 
 20, 57, 02, (53, (14, 
 74, 75, 111, 510, 
 518, 519, 520, 526 
 
 491 
 
 196 
 
 469 
 400 
 
 33G, 337, 341 
 
 412 
 
 300, 450 
 
 129, 131, 133 
 
 301 
 
 107, 433, 434, 4S5, 
 
 463 
 
 142, 252 
 1.3, 14, 15, 32, .34, 
 35, 38, 50, 50, 57 
 78, 79, HO, 81, 83 
 84, 85, 80, 93, 99. 
 127, 240, 247, 249 
 268,271,270,280 
 522, .525 
 
 442 
 
 227 
 24(J, 31.5, .310, .342, 
 344, .301,512,513, 
 
 5.34 
 
 311 
 
 99, 149
 
 TABLE OF CASES. 
 
 Xilll 
 
 Names of Cases. 
 
 AViii:ui: Ki:ruRTED. 
 
 Johnston ??. Jolinstoii 
 Jones, Ax parte 
 
 — V. Ashnrt 
 
 — V. i5adley 
 
 V. iKUlgll 
 
 — V. Boulter 
 
 — V. Crouclicr . 
 
 — V. (Todricli 
 
 — V. Harris 
 
 — r. . I ones 
 
 — r. Lewis 
 
 — V. Jjock 
 
 — V. Marsh... . 
 
 — ?■. T'nrefviy 
 
 — r. Waite ... . 
 
 — )-. Wiii taker . 
 
 — V. Winwood . 
 Jorden v. Money 
 Joseph I'. Lyons 
 
 Joyce ('. Huttoii 
 Judd V. (ireen ... 
 
 Justice V. Wynne 
 
 Knr( t r. The Koslier 
 Meat Supply Asso- 
 ciation, Limited 
 
 Keenan r. Handley . 
 
 Keir v. Lfenian ... 
 
 Keith V. I'ratt ... 
 
 Kekewich v. Manning 
 Kelly, Ex parte 
 
 _ 7-. Walsh 
 
 Kelson v. Kelson 
 
 Kenipland r. IMacanlny 
 Kenipsou v. Ashbee ... 
 
 Kcnnard v. Kennard ... 
 
 Kennedy r. ^lay 
 — ?•. Loss 
 Ivcnney ". ISrowr.e ... 
 Kinsiiigton v. Chantler 
 Kent v. Lrat 
 
 — r. itilov 
 
 .Ti W. K. lOKJ 
 
 12 Ch. D. 484; 48 L. J. (N.S.) Bkcv. 
 
 109 ; 40 L. T. (N.S.) 7!)0 
 
 Skin, .-i;')? 
 
 L. U. -6 Ch. ;?G2 ; IC \V. L. Ti:) : I'J L. T. 
 
 (N.S.) 106 
 
 Yin. Abr. vol. 22, i;. 1 
 
 1 Cox, 288 •[ I 
 
 1 S. & S. 315 
 
 5 Moo. r. C. 40 
 
 L it. 7 Q. B. 157 ; 41 L. J. (N.S.) Q. B. 
 
 C; 20 \\. R. 143; 25 L. T. (N.S.) 
 
 702 
 
 31 L. J. I'X.S.) Cli. 535 ; 23 \V. W. 1 ... 
 
 2 Yes. 240 
 
 J;. L. 1 Ch. 25: 11 Jnr. iX.S.) 1)13; 85 
 
 i>. J. (N.S.) Cli. 117 ; 14 W. L. 149 ; 
 13 L. T. (N.S.) 514 
 
 Ca. t. Talb. Forr. (34 -' 
 
 { 
 
 1 A'erii. 4(") 
 
 5 Bini,'. N. C. 341 
 
 LnnsHeld & T. Ir. Ex. 141 
 
 10 Sim. 150 
 
 5 H. L. C. 185 
 
 15 g. B. I). 280 ; 54 L. J. 'N.S. Q. B. 
 
 1 : 33 W. II. 145 ; 51 L. T. - X.S. ; 740 
 12 Ir. Ch. Bep. 71; 11 h: Ch. hVp. 123 
 4 Ch. I). 784 : 40 L. J. (N.S.; Ch. 257 ; 
 
 25 W. E. 293 ; 35 L. T. (N.S.) 873 ... 
 
 12 L. Ch. Kep. 289 
 
 2 Q. B. D. 3(U ; 4G L. J. (N.S.) Q. B. 
 548 ; 25 W. li. G91 ; 3G L. T. (N.S.) 
 694 
 
 2 De Ct. J. & S. 283 
 
 13 L. J. (N.S.) y. B. 359 
 
 10 W. R. 29G 
 
 I Dc G. M. &C. 170 
 
 \ 
 
 II Ch. D. 306; 48 L. J. (N.S.) Bkcy. 
 (K) ; 27 W. R. 830 ; 40 L. T. (N.S.) 
 404 
 
 1 L It, L-. 275 
 
 t 10 Hare, 385; 22 L. J. (N.S.) Ch. 745; 
 
 I 17 Jur. (N.S ) 129 
 
 I Peake, 65 ; 4 T. R. 436 
 
 L. R. ll> <'li. 15; 44 L.J. (N.S.) Ch.) 
 195; 23 W. R. 38 ; 31 L. T. (N.S.)^ 
 
 I L.'^Ji. 8 ("iV. 227";" 42 L.'j. (N.S.) Ch. 
 I 280; 21 W. 1;. 2!i6; 28 L. T. (N.S.) 
 
 ' 11 \Y \l. 3,-)S; 7 L. T. 829 
 
 i 2 Const. (S.C., Amor.) 125 
 
 3 Ridg. .518 
 
 i 2 Man. & S. 3'; 
 
 I I r.;-(i\viil. G 
 
 I L. K. 11 Km. I'.Hi: 41 L. L CN.S.) Ch. ( 
 5:;'.i; 2(» W.i;. S.VJ; 27 L. T. (N.S.) 
 
 I'ACJK. 
 
 335 
 
 28 
 71 
 
 ■i:!l 
 4i;7 
 
 56, 79, 99, 247, 
 
 260, 283, 363, 539 
 
 7, 204 
 
 498 
 
 157, 158, 159 
 
 453, 458 
 
 51 
 
 405, 440, 443, 444 
 24G, 247, 249, 365, 
 366 
 241 
 313 
 237, 239, 241 
 71 
 384 
 
 160 
 283, 293, 390, 391 
 
 219, 315 
 452 
 
 148, 1.54 
 
 249, 253, 313 
 
 311 
 
 458 
 
 204,223,361,389, 
 
 390, 401, 402, 405, 
 
 418, 445, 449, 4.52, 
 
 454, 4.58, 476 
 
 104 
 441 
 
 267 
 174 
 
 484,489,496,504, 
 505, 50G, 508 
 
 394, 395, 396 
 
 .•'.89 
 
 120 
 
 514 
 18 
 
 253 
 .38, 39, 4(1, 42, 4.5, 
 46, .50, 51, .55, 61, 
 75, 171, 522, 546, 
 
 548
 
 XllV 
 
 TABLE OF CASES. 
 
 Xames Of Cases. 
 
 Kcngh r. M'tirath ... 
 
 Ker V. Ker 
 
 Kemson's Trusts, In re 
 
 — )■. Doriien... 
 Kettle )•. Townsend ... 
 
 Kcvan v. Crawford ... 
 
 Kidd f. Ivawlinson ... 
 
 Kiddill i\ Farnell 
 
 Kidney r. Coussniaker 
 
 Kiiicaid's Trusts, In re 
 Kinchant r. Kinchant 
 Kinderlev r. Jervis ... 
 King, In re 
 
 — Ex parte 
 
 — /•. .Vnderson ... 
 
 — r. lire wen 
 
 — V.Cotton 
 
 — V. Keating 
 
 — V. King 
 
 — f. Marissal 
 Kingdon r. Bridges ... 
 Kinloch r. Secretary | 
 
 of State for India - 
 in Council ... ) 
 
 Kirk /•. Clark 
 
 Kirwan v. Cullen 
 
 — V. Kicliards ... 
 Kitcliin c. Dixson 
 Kn;ittlibull v. Kissane 
 Knight /•. Knight ... 
 
 Knightley, E.r parte... 
 Knott, Ej- purte 
 
 Kyne v. Moore 
 
 Kronheini r. Johnson 
 
 Where Reported . 
 
 Page. 
 
 5 L. R, Ir. 478 
 
 I. 1{. 4 Eq. •_'! 
 
 L. 1!. 1(1 Eq. 4-22; 40 J.. J. (N.S.) Ch. 
 ('.37 ; I'.t W. K. ;t07 ; 25 L. T. (X.S.) 
 
 Bing. 7(; '. ... 
 
 1 Sidk. 187 ; 1 Eq. Ca. Ab. 122 
 
 Cli. D. 211 ; 45 L. J. (X.S.) Ch. 058 ' 
 
 2 B. & P. .09 ' 
 
 t 
 
 3 Sm. \; G. 428 
 
 12 Yes. 148 ' 
 
 1 Drew. ;j2(j 
 
 1 15ro. C. C. 309 
 
 22 Bear. 1 
 
 14 Cli. I). 179 ; 44 L. J. (X.S.) Ch. 73 : ) 
 
 ; 28 W. K. 344 / 
 
 2 Ch. D. 250; 45 L. J. (X.S.) Bkcy. 
 ; 1U9 ; 24 W. E. 559 ; 34 L. T. (X.S.) 
 
 I 40G 
 
 ! 8 Ir. E. Eq. 147 
 
 2 Bro. C. C. 93, n 
 
 2P. Wnis. 074 
 
 12 Chy. 29 
 
 3 Jur. (X.S.) GU9 
 
 3 Atk. 192 
 
 2 ^'ern. (J7 
 
 7 App. Cas. 019; 51 L. J. (X.S.) Ch. 
 885 ; 30 W. E. 845 ; 47 L. T. (X.S.) 
 133 ; 15 Ch.D. 1 
 
 Prec. Ch. 275 
 
 4 Ir. Ch. Eep. 322 
 
 5 Hare, 493" 
 
 Gouldsb. 110, pi. 12 
 
 5 Dow, 389 
 
 L. R. 18 Eq. 487 : 43 I 
 
 Oil : 22 W. i;. 792 
 51 I.. J. (X.S.) Ch. 823 
 11 \es. 009 
 2 S. & S. 20O 
 7 Ch. D. (;(»; 47 I.. .1. 
 
 d. (X.S.) Cb. 
 30 W. E. 844 
 
 N.S.) Cb. 132 ; 
 20 W. E. 142 ; 37 I.. T. (X.S.) 751... 
 
 Lacey r. Lngle 2 Phil. 413 
 
 Lackersteen /■. Lacker- | 
 
 Bteen 
 Lacon r. Liifen 
 
 Lainson r. Treniere ... 
 
 Lake r. Billers 
 
 Lalor /•. Lab.r 
 
 J^anib /■. 15ruco 
 
 — ;■. Minister 
 
 Lambe »■. Orton 
 
 Lambert's Case 
 
 Lambert f. Northern 
 Piaiiway of Buenos 
 Ay res Co 
 
 I o.Tur. (N.S.) 1111 
 
 32 L. .1'. (X.S.) ( 'h. 315 : 9 .Jnr. (N.S.) 77 ; 
 
 11 W. ]l. 474; 7 L. 'J\ 774; 32 L.J. 
 
 (X.S.)Cb. 25 
 
 1 A. & E. 792 
 
 1 Ld. Ilavm. 7.!3 ... 
 
 4 I,, i;. i'r. ;;5i 
 
 45 I.. J. ^.N.S.j (,». B. 538; 2t W. E. 
 
 045: 35 J>. 1. (X.S.j 425 
 
 52 L. .1. (N.S.)g. B. 40; 31 W. i;. 117; 
 
 47 L. T. (.N.S.) 442 
 
 1 Ih-. & Sm.' 125 
 
 Shep. Toucii. IJ5 ... 
 
 18 W. E. isi) 
 
 481 
 535, 530 
 
 70, 479 
 
 220 
 
 394, 397 
 
 79, 80, 91, 332, 
 
 335, 502, 522 
 
 114, 119, 125,12(5, 
 
 127, 131, 132, 133 
 
 412, 420 
 
 39, 47, 03, 05, 100, 
 
 518 
 
 300 
 
 491 
 
 220, 227 
 
 425,427,450,452, 
 
 455, 457 
 
 95, 90 
 
 493, 490, 509 
 
 170, 247, 301 
 
 348, 474 
 
 53 
 
 491 
 
 70, 72 
 
 20 
 
 433 
 
 315, 310 
 
 485, 495, 552 
 
 435 
 
 19, 09 
 315 
 
 29, 296 
 
 157, 159 
 
 225 
 
 409 
 
 443, 44(5 
 
 225 
 
 481, 482 
 
 252 
 
 378, 383 
 
 171, 170, 404 
 
 219 
 
 150, 157, 158, 1(30 
 
 539 
 
 4 }il, 45(1, 453 
 
 114 
 
 393
 
 TABLE OF CASES. 
 
 \\V 
 
 Namks of Cases. 
 
 "Where Reported. 
 
 Paoe 
 
 Lambert v. Overton ... 
 Liiiicastor, Kv parte ... 
 
 Lance r. Norman 
 Jjangley /•. IJrown 
 Lan;;ton r. Vlorton ... 
 Lauluun i\ Pirie 
 
 Lanoy v. Atliol ...^ ... j 
 Larcliiii r. North Wes- 1 ' 
 
 tern Deitosit I'ank j 
 Larkins /■. I'axton ... 
 Larrett r. Bank of Jmiu,- 
 
 land 
 
 Lassells v. Cornwallis 
 Lassence v. Tierney ... 
 
 Latimer r. l5atson 
 
 Lalkow r. Earner 
 
 La Touche r. Lucan ... 
 
 Lauglilin V. Ferguson 
 
 Lavender ik ]>lakstonc 
 
 Law r. London, &c., 
 
 Policy Co 
 
 Lawley r. Hooper 
 Layton i\ Layton 
 Lazarus w. Andrade ... 
 
 Leach v. Dean 
 
 Leake v. Young 
 
 Learmouth v. Miller... 
 Leatham v. Amor 
 Lechmere r. Carlisle ... 
 
 Lee 't\ Barnes 
 
 _ V. Hart 
 
 — V. Henley 
 
 — V. Magrath 
 
 — V. Mathews 
 
 Lee and Hemingway, ) 
 
 Be / 
 
 Legard v. Johnson ... 
 Legg V. (ioldwire 
 Leicester/;. Rose 
 
 Leifchild's Case 
 
 Leigh r. Winter 
 Leman r. Whitley ... 
 
 Lenthal's Case 
 
 Leonard r. Bacon 
 
 — V. Baker 
 Leopard «. Vernon ... 
 Lester v. Garland 
 L'Estrange v. Robinson 
 Ijeukencr v. Freeman 
 Levy V. Creighton 
 
 — V. Polack 
 
 Lewis, Ew parte 
 
 — r. Butler 
 
 — -I'. Davis 
 
 13 W. R. 2-27 ; 11 L. T. (N.S.) rm ... 
 
 25 Ch. I). .11 r. f>.\ i>. d. (N.S.) Ch. 
 
 112;j; :;■-' W. K. is:;; .-,0 !,. T. (.N.S.) 
 
 2 Rep. Ch. [79] 41 
 
 2 .\tk. I'.i.') 
 
 1 IIiuc, r>4'.) 
 
 ;; .lur. (N.S.) 70-1; I llaic, o l',» ; 2 .lur. 
 
 (N.S.) 75;! 
 
 2 Atk. 444 ! 
 
 L. R. 10 Ex. 04 ; 44 L .f. (N.S.) Ex. 71 ; 
 
 23 W. R. 325 ; 33 L. 'J'. (N.S.) 12 1 ... 
 2l5eav. 219 
 
 W. N. (188G) 47 
 
 Preo. Ch. 232 
 
 1 Mac. & G. 551 
 
 4 1!. &C. G52 -' 
 
 2JI.BI. 437 
 
 7C1. &F. 772 
 
 G Dana (Kentucky), 117 ... 
 
 3 Kcb.52G; 2 Lev. 14G ■' 
 
 IK. iS: 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. iCh. 4G1 
 
 5E. &P.. 955 
 
 L. R. 2 H. L. Sc. 438 
 
 47 L. J. (N.S.) y. B. .581 
 
 3 P. VVms. 222 
 
 17 Q. B. D. 77; 34 W. R. G40 
 
 II Ex. 880; 25 L. .J. Ex. 135; 2 Jur. 
 (N.S.) 308 
 
 1 Vern. 37 
 
 lOL. R. Ir. 45 ■[ 
 
 G L. R. Ir. 530 
 
 24 Ch. D. GG9: 32 W. R. 22G ; 49 L. T. 
 (N.S.) 155 
 
 3 Yes. 352 
 
 Ca. t. Talb. Forr. 20 
 
 4Ea.st, 372 
 
 L. R. 1 Eq. 231 ; 11 Jur. (N.S.) 941 ... 
 W.Jo. 411 
 
 4 Buss. 423 
 
 2 Vern. 44 
 
 Cro. Eliz. 234 
 
 1 Man. & S. 251 
 
 2Y. &B. 51 
 
 5 Sim. 205 
 
 iiios--^o--' 
 
 Freem. ("h. 23G ; Prec. Ch. 105 
 
 22iW. R. G05 
 
 52 L. T. (N.S.) 532 ; W. N. (1885) 70 ... 
 L. R. G Ch. G2G; 19 W. R. 835; 24 
 
 L. T. (N.S.) 785 
 
 IG W. R. G81 
 
 L. R. 10 Ex. 8G ; 44 L. J. (N.S.) Ex. 86 ; 
 
 23 W. R. G35 
 
 405, 413 
 
 103 
 '.'(;i; 
 
 4G0, 475, 553 
 3C5 
 
 158, IGO 
 lo.s 
 
 503, 553 
 
 31 
 
 372, 381 
 
 99, 119, 12G, 127, 
 
 131, 132, 133 
 
 179 
 
 435 
 
 120 
 
 189,212,214,283, 
 
 371 
 
 20 
 
 4 
 
 300 
 
 IGl 
 207, 208, 513 
 
 95 
 41, ,50, G8 
 
 IGl 
 1G7, 342, 534 
 
 1.39 
 
 244 
 
 391 
 
 40G,41G, 423,439, 
 
 441, 454, 4,55, 457 
 
 247, 258 
 
 544 
 301, 312 
 
 3G9 
 
 104 
 
 2GG 
 211, 212 
 
 443 
 
 71 
 
 71 
 99, 133 
 
 412 
 
 334, 339 
 
 375, 377 
 
 105, 230, 234, 532 
 
 219, 248, 26G 
 
 139, 102 
 
 151, 152 
 339 
 
 542
 
 xl 
 
 VI 
 
 TABLE OF CASES. 
 
 Names op Cases. 
 
 Lewis r. Nangle 
 
 — V. Kees 
 
 Leyland v. Stewart ... 
 
 Liddlow V. Wilmot ... 
 
 Life Assurance ol' Scot- 
 land r. Sid Jail 
 
 Lilly r Osborn 
 
 Lincoln r. Wright 
 
 Lincoln Wagon Co. r. 
 Mnniford 
 
 Linden V. Sharp 
 
 Lindsay Petroleum Co. 
 V. Hnru 
 
 Lister V. Hodgson 
 
 — V. Turner 
 
 Little V. Hiiglics 
 
 Liverpool Commercial 
 Co. r. Eichardson ... 
 
 Liverpool & London 
 Lruarantee Co., lie... 
 
 Llanelly liy. & Uockj 
 Co. i'. London & I 
 Xorth-Western Rj. f 
 Co J 
 
 Lloyd I'. Attwood 
 
 — V. Chune 
 
 — V. Clark 
 
 — V. Fleming 
 
 — V. Johnson 
 Lockwoud V. Salter ... 
 Lockyer r. Savage ... 
 Loefl'es v. Lewen 
 Jjogan r. Birkett 
 Jjomas V. Wright 
 Loma.x v. Buxton 
 
 London, &c., Loan Co. 
 
 r. Chase 
 
 London & Provincial I 
 
 Bank r. Bogle... J 
 Long '". Donegan 
 Longdale v. JjongJale 
 Longford v. Purdou ... 
 Longman c. East 
 
 Lovell r. Wallace 
 i^overidge v. Cooper ... 
 
 Lovick V. Crowder ... 
 
 Low V. M'fiill 
 
 Lowe V. Fox 
 
 — ?•. Peers 
 
 Lowentha!, Jn re 
 
 Lowson V. Copeland ... 
 Loxley v. Heatli 
 
 Lucas ?;. Lucas 
 
 Lucena r. Lucena 
 Luckiu V. Jlamlyn ... 
 
 Where REPORTEn. 
 
 (N.S.) Ch. 103 
 
 Amb. 150 
 
 .•5 K. &.I. 132 
 4 Ch. I). 41'.) ; 4(3 L. J. 
 25 W. 11. 225 ... 
 
 2 Stark. N. P. C. 86 
 
 7 Jur. (N.S.) 785 ... 
 
 3 P. Wins. 298 ... 
 4DeG. &J. 10 ... 
 
 41 L. T. (N.S.) 655 
 6 Man. & G. 895 ... 
 
 L. P. 5 P. C. 201 ; 22 W. P. 492 
 L. P. 4Eq. 30; 15 AV. P. 547 ... 
 
 5 Hare, 281 
 
 17 Q. B. 1). 204 
 
 .05 L. J. (N.S.) Q. B. 455 
 
 P.\GE. 
 
 30 W. Pi. 378 ; 4G L. T. (N.S.) 54 
 
 H. L. 550; 45 L .T. (N.S.) Ch. 
 23 W. E. 927; 32 L. T. (X.S.) 
 
 L. P. 
 
 539 
 
 SDeC. & J. G14... 
 2 (iiff. 441 
 6 Beav. 309 
 
 L. E. 7 Q. B. 299; 41 L, 
 93 : 20 W. E. 29G 
 
 1 B. & P. 340 
 5B. &Ad. 303 ... 
 
 2 Stra. 947 
 Prec. Ch. 370 
 
 1 My. & K. 225 ... 
 
 2 My. & K. 7(59 ... 
 L. E. G C. P. 107 ; 40 I 
 
 150 ; 19 W. E. 441 ; 
 137 
 
 .J. (N.S.) Q. ]} 
 
 . J. (N, 
 24 L. 
 
 S.) C. 
 T. (N 
 
 12 C. B. (N.S.) 7.30 
 
 7 Ch. 1). 773 ; 47 L. .T. (N.S.) Ch. 301 ; 
 2G W. E. 573 ; 37 L. T. (N.S.) 780 ... 
 
 21 W. E. 830 
 
 1 \'ern. 45G 
 
 1 L. E. Ir. 75 
 
 3 C. P. 1). 142 ; 47 L. .f. (N.S.) C. P. 
 211 ; 2G W. E. 183 ; 38 L. 'J'. (N.S.) 1 
 
 50 L. T. (N.S.) G81 
 
 SEuss. 30 
 
 8 B. & C. 132 ; 2 Man. & P. 84 i 
 
 ( 
 
 12 W. 1{. 826 : 10 L. T. (N.S.) 495 ... 
 15 Q. B. D. (367 ; 54 L. .J. (N.S.) Q. B. 
 
 561 ; 34 W. E. 144 
 
 4 Burr. 2225; Wiini. 364 
 
 13 g. B. D. 241 ; 43 L. .T. (N.S.) Bkcy. 
 132 ; 22 \V. E. 459 ; 30 L. T. (N.S.) 282 
 
 2 Bro. C. C. 156 
 
 27 Beav. .023 
 
 1 Atk. 27(J ; West (t. II. \ 456 ... ", 
 
 5 Beav. 249 
 
 18 W. K. 43 ; 21 L. T. (N.S.) 366 
 
 284 
 239, 241 
 
 412 
 302 
 
 507, 509 
 
 13, 45 
 
 470 
 
 152 
 94, 118,121 
 
 507 
 390,391,440,444, 
 
 480, 481, 482 
 
 164,192,219,513, 
 
 514, 527, 549 
 
 139 
 
 139 
 
 lO.T 
 
 244 
 
 49, 197 
 
 398, 431, 441 
 
 480 
 
 411 
 
 469 
 
 25, 26 
 
 338 
 
 G7, 371 
 
 3(J6, 312 
 
 7. 167,398, 535 
 
 96, 245, 252 
 1.07 
 
 28 
 501, 502 
 
 409 
 480, 498 
 
 544 
 276 
 453 
 171, 174, 177, 178, 
 180 
 317 
 
 509 
 4(39 
 
 523 
 50 
 384 
 444 
 394 
 159, 160
 
 TABLE OF CASES. 
 
 XlVll 
 
 Names op Cases. 
 
 Lucy's Case 
 
 Lxulei-s ?'. Anstoy 
 Ijulliani, lie 
 
 Ijumlcy V. Desborougli 
 
 — ('. Siinnioiis ... 
 
 JiUs'.i's 'i'nists, Jtt re... 
 
 Lu.-li r. Wilkinson 
 
 Lyncli '•. Lyncli 
 Lyon /'. Homo ... 
 
 Lyons v. Tucker 
 
 Lyttleton v. Cross 
 
 McAulay v. Clarendon 
 Maccallura v. Turtou ... 
 McCarthy v;. (ioold ... 
 M'Carthy v. M'Cartliv 
 McClellau v. McClellan 
 
 McClintock v. Aslie ... 
 McCorniick v. Crogan 
 McCue V. James 
 McCulloch V. Bland ... 
 Macdona v. Swiney ... 
 M'Donagli's Estate, In 
 re 
 
 M'Donnell v. Hesilrige 
 
 M'Fadden v. Jenkyns 
 
 M'Gonnell v. Murray ... 
 
 Macgregor v. Dover & 
 
 Deal Railway Co. ... 
 
 M'Hattie, -S^- jxw^e ... 
 
 SLackay, Ex]]arte ... 
 
 — V. Douglas 
 
 — r. Meredith... 
 Mackenzie, Ex ijurte... 
 McKewan v. Sanderson 
 
 Mackie r. Herbertson 
 
 Mackinnon v. Stewart 
 Mackintosh ?•. Stuart 
 Mackreth v. .Tackson 
 M' William's Case 
 
 Maddever, In re 
 
 Madox V. Nowlan 
 Magdalen College Case 
 Maargi, In re 
 
 WlIKltE T^El'OKTKI). 
 
 2 De G. M. & (i. 3oC) 
 
 4 Yes. .501 
 
 :5;j \\. \l. 788 ; 53 L. T. (.\.S.) '.) ; ;!.' \\ . \\. 
 
 lUi;! 
 
 22 L. T. (X.S.) a'.iT 
 
 .>5 L J. (N.S.) Q. \). -.7.1 
 
 L. h'. -Mil. 591; 38L. .J.(X.S.)(j;i.r,5U; 
 
 17 \\. 1!. 'J7-1; 21 \u T. (X.S.) iJ70 ... 
 
 5 Yes. oSi 
 
 4L. R. L. 210 
 
 L. R. Eq. G55; :J7 L. .1. (N.S.) Cli.) 
 G74; K; \V. i;.8-J4; 18 L. T. (N.S.) r 
 451 j 
 
 7 Q. B. D. 523 ; 50 L. J. (X.S.) Q. B. 
 CGI: 45L. T. (N.S.) 403 ; Q. B. D. CG3 
 
 3 B. &C. 322 
 
 8 L-. Ch. Rep. 5G8 
 
 2A\&J. 18G 
 
 1 J5all&B. 387 
 
 1 II. L. C. 703 ; 9 L-. Eq. Rep. G.'O ... 
 29 Ch. D. 495 ; 54 L. J. (^N.S.) Ch. G59 ; 
 
 33 W. R. 888 ; 52 L. T. (N.S.) 741 ... 
 
 2 Law Rec. (N.S.) 45 ... .'.. 
 
 L. R.4H. L. 82 
 
 19 W. R. 158 
 
 2 (iiff. 428 
 
 8lr. C. L. R. 73 
 
 3 L. R. L-. 408 
 
 IG Bcav. 34G 
 
 1 Hare, 4G0 -[ 
 
 Ir. R. 3 Eq. 4G0 
 
 18 Q. B. G18 
 
 10 (;h. D. 398 ; 48 L. J. (X.S ) Bkcy. 2G ; 
 
 27 W. R. 327 ; 39 L. T. (N.S.) 373 ... 
 L. R. 7 Cii. G43; 42 L. J. (N.S.) Bkcy. 
 
 G8 ; 21 W. R. GG4 ; 28 L. T. (X.S.) 828 
 
 L. R. 14 Eq. lOG; 41 J.. J. (X.S.) Ch. 
 539; 20 AV. R. G52 ; 2G L. T. (N.S.)-^ 
 
 34W. R. 433 
 
 42 L. J. (X.S.) Bkcy. 25 
 
 27 L. T. (X.S.) 157 
 
 9 App. Cas. 337 ; 34 W. R. Dig. 17G j 
 
 1 Sim. (N.S.) 89 
 
 3G Beav. 21 
 
 1 M. & S. pt. 2, 408, n 
 
 I Sch. & Lef. 1G9 
 
 27 Ch. D. 523; 52 L. J. (N.S.) Ch. J 
 733; 31 \\. R. 720 I 
 
 Beattv,C.C. G32 
 
 II Rep. 6G b, 72 a, 74 a, b 
 
 21) Ch. D. 545; 51 L. .1. (N.S.'. Ch. 5GU; 
 
 30 \\. R. 729 ; 4G L. T. (N.S.) 32u ... 
 
 Page. 
 
 27G 
 384 
 
 25S, 259, 513, 514 
 
 4G2, 4G9, 478 
 
 139 
 
 300 
 
 37, 41, 47, 50, 57, 
 
 1G3, 51(;, 517, 
 
 520, 525 
 
 292 
 
 4«, 495, 49G,50G, 
 551 
 
 150, 155, 4G5 
 108 
 
 227 
 
 539 
 
 18, 19, 25 
 
 495 
 
 544 
 
 204, 297 
 
 230, 234, 431 
 
 159, IGO 
 
 410 
 
 118, 121, 12G, 132 
 
 .327 
 334, 425, 428, 477, 
 
 478 
 389, 438, 444,4 IG, 
 
 455 
 
 409 
 
 4G9 
 
 157, 159 
 
 147, 148 
 5, 35, 3G, 40, 41, 
 45, 50, 52, 53, G4, 
 G5, GG, G7, G8, 75, 
 184,510,520,521, 
 522, 525, 545, 548 
 
 139 
 
 157 
 
 104 
 268, 342, 343, 344, 
 345, 350, 352, 355, 
 35G, 357, 358, 3G0 
 
 435 
 
 441 
 
 108 
 
 25 
 
 13, 14, 15, 35, 75, 
 
 99, 184, 525, 528, 
 
 529 
 
 384 
 204, 205 
 
 398, 52G
 
 xlvii 
 
 TABLE OF CASES. 
 
 Names of Cases. 
 
 Magiiire r. Do J J 
 
 — c. Nicliolson... 
 
 Mail- r. (ilennie 
 
 Maitl.md r. liackliouse 
 
 — r. Irving ... 
 Makeown r. ArJagli ... 
 ^lalcolui r. Scott 
 
 :\lalet, Jie 
 
 Mallby r. K'lssell 
 MaiiJcr v. llanis 
 
 Mamlers ?•. Glanders 
 Manning c. tiill 
 
 Manton r. ]\Ioorc 
 Mara v. Ray 
 March, In ir ... 
 
 Mare w. Sandford 
 ^larine Mansions Co., 
 
 In re 
 
 Marker r. Marker ... 
 Markwell r. ilarkwell 
 Marler v. Tommas ... 
 
 ]\rarlow ?•. Orgill 
 i\Iarples ?•. Hartley ... 
 Marsden v. ^Meadows ... 
 
 Marsh, E.r parte 
 — V. Lord CJran-) 
 ville )' 
 
 ^Marshal /•. ('rut well ... 
 
 Marshall r. Marshall... 
 
 — r. Kutton ... 
 Marston c. (lowaii ... 
 Martin v. ]\Iartin 
 
 — r. Mitchell ... 
 
 — r. I'ewtress ... 
 
 — r. Podger 
 
 — r. Strachan ... 
 
 — V. Willyams ... 
 
 Martiiidale r. Hooth ... 
 
 Martyn v. M'Namara 
 Mason v. Mason 
 Massey r. Travers 
 Mather r. Fraser 
 
 Mathews r. Feaver ... 
 
 Matthew.«, Ji'e 
 
 — r. .lones ... 
 
 — 7'. 1/ e... 
 
 Maugham r. Sharpe ... 
 Mauusell r. Mauiiscll 
 
 — r. White ... 
 
 May r. May 
 
 Maynard v. I'auperes 
 
 de East Creenstod ... 
 
 WilEUE EeI'OKTED. 
 
 Facie. 
 
 ft Ir. Ch. Rep. 452 
 
 436, 440, 444 
 
 l!eatt.r>;i--' 
 
 365, 369 
 
 4 M. & y. -240 
 
 115 
 
 n; Sim. .>s 
 
 404, 504 
 
 1.') Sim. 4.'>7 
 
 404, 504 
 
 i. U. lU Kq. 44.5 
 
 444 
 
 3 Hare, 30 
 
 436, 437 
 
 30 Beav. 407 
 
 482 
 
 2S. &8. 227 
 
 108 
 
 , 27 Ch. 1). 166; 54 L. .T. (X.S.) Ch. 143; 
 
 
 32 W. K. 941 ; 51 L. T. (X.S.) 380; 
 
 
 24 Ch. D. 222 
 
 29 
 
 4 Ir. Eq. Rep. 434 ' 
 
 47, 50, 57, 517, 
 528 
 
 L. R. 13 Eq. 485: 41 L. J. (N.S.) Ch. 
 
 
 736; 20 W. R. 357 ; 26 L. T. (N.S.) 14 
 
 71, 473 
 
 7T. R.71 ... ... 
 
 115 
 
 W. N. (1872) 127 
 
 481, 406, 501,552 
 
 27 Ch. D. 166 ; 54 L. .T. (X.S.) Ch. 143 ; 
 
 
 32 W. R. 941 ; 51 L. T. (X.S.) 380 ; 24 
 
 
 Ch. I). 222 
 
 281, 203 
 
 1 Gill'. 288 
 
 104 
 
 L. R. 4 Eq. 601 ; 17 L. T. (X.S.) 50 ... 
 
 162, 525 
 
 9 Hare, 1 '.. 
 
 183 
 
 34 Reav. 12 ; .34 L. .T. (X.S.) Ch. 55 ... 
 
 167, 398, 427, 476 
 
 L. R. 17 Eq. 8 ; 43 L. J. (X.S.) Ch. 73 ; 
 
 
 22AV. K. 25 
 
 309 
 
 8 Jur. (X.S.) 820 
 
 99 
 
 .30 L. .]. (X.S.) g. B. 02 ; 1 B. & S. 1 ... 
 
 136 
 
 7 Q. B. I). 80: 50 L. J. (X.S.) Q. B 
 
 
 536; 20 W. R. 816; 45 L. T. (X.S.) 
 
 
 301 
 
 148 
 
 1 Atk. l.-)S 
 
 342, 348 
 
 24 Ch. I). 25; 31 W. R. 845; 48 L. T. 
 
 
 (N.S.) 047 
 
 258, 250, 315, 513 
 
 L. R. 20 Eq. 328 ; 44 L. J. (X.S.) Ch. 504 
 
 445 
 
 5 F. 1). 10; 48 L.J. (N.S.) F. 40 ; 27 
 
 
 W. R. 370 ; 30 L. T. (X.S.) 640 ... 
 
 306, 308, 310 
 
 8 T. R. 545 
 
 302, 303, 312 
 
 3 Fro. C. C. 170 
 
 305 
 
 2 Russ. & My. 507 
 
 102 
 
 2. lac. &AV. 413 
 
 306 
 
 4 Burr. 2477 
 
 171 
 
 2 W. Bl. 701 ; 5 JJurr. 2631 
 
 171, 172, 176 
 
 5T. R. 107, n 
 
 102 
 
 20L. T. (X.S.)352 
 
 252 
 
 2 F.. & Ad. 498 ■' 
 
 114,118, 119, 121, 
 122, 123, 126, 131 
 
 4 Dr. & War. 427 
 
 37, 45, 47, 315 
 
 Times l!ep. (ls,s6) 266 
 
 273, 276 
 
 10 Ir. C. L. R. 459 
 
 361 
 
 2 K. & J. 536; 25 L. .F (X.S.) Ch. 861 
 
 114, 135 
 
 1 Cox, 278 •' 
 
 84, 98, 244, 245 
 246, 274 
 
 1 Atk. 185 
 
 118 
 
 2 Aubtr. .506 
 
 166, 222, 333 
 
 1 Mad. 558 
 
 249 
 
 17 C. B. (N.S.) 443 
 
 I.'jO 
 
 1 L. R. Ir. 529 
 
 ."j02 
 
 L. R. 4 H. L. 1030 
 
 :)21, .384 
 
 3lBeav. 81 
 
 401 
 
 Duke (od. 1676), 64 
 
 205
 
 TABLE or CASES. 
 
 XllX 
 
 Names op Cases. 
 
 AVlIEUE liEI'ORTED. 
 
 j\fayor, E.r parte 
 Mayow, E.r ptirle 
 Mead, /;' /v 
 
 Meager /•. Pellew 
 ]\Ic'aj;lian, F..r parte .. 
 .Mcdwiii V. Saiulliam .. 
 
 Meek r. Kettle well .. 
 
 Meekei" v. AViisoii 
 Meggison r. lAistcr .. 
 :\lotrgnt r. IMills 
 .Meluiyh r. .Miltoii 
 
 Melvill 
 
 jMeJville r. 
 
 S trine 
 
 fiercer, Ex parte 
 — r. Potoi'son ... 
 
 Merchant Pianking Co. 
 
 r. SpofFcn 
 
 Merriman's Trusts, Ee 
 
 Merrilt v. Niles 
 
 Merry r. llyves 
 
 Merryweatber v. .Jones 
 
 Metcalfe's Trusts, Re 
 Metcalfe r. Pulvertoft 
 
 Meux ?•. Howell 
 
 Meyerstein v. Barber 
 
 Meymot, E.r 2'>nrte ... 
 
 Michael r. (lay 
 
 j\Iiildiecome r. Marlow 
 ^liddleton r. Parker... 
 
 — r. ]\liddleton 
 
 — V. Onslow... 
 
 ~ r. Pollock... 
 
 Mildmay r. ]\[ildmay 
 Miles r. Williams 
 Mill's Estate, la re ... 
 Miller r. Harrison ... 
 
 — r. j\IilI(T 
 
 ]\Iills r. Purtiiwick ... 
 
 — r. IMills ... , 
 Milner, J'lr p>arte 
 — r. II are wood 
 
 Milroy /•. l/ird ... 
 
 34L. .T. (N.R.)Bkcy. 25 
 
 ll.Tnr. (N.S.)4:!;; 
 
 la Ch. 1). (;-)l ; .-,() I,. .1. (N.S.) r;h. :i(); 
 28 A\'. i;. SIM ; 4;; L. T. (N.s.) iiy... 
 
 14(.). p. ]). <I7;5 
 
 1 Sell. & Ivcf. 171) 
 
 .'! Nw. 085 
 
 1 llarc, 470 J 
 
 1 (iallison (U.S.), 419 
 
 2 Y. & C. C. t'. :!;)(■) 
 
 1 \A. Pavjn. 'J8G 
 
 3 Ch. U."27; 45 L. .T. (X.S.) Ch. 836; 
 24 W. IC 892 ; 35 L. T. (N.S.) 82 ... 
 
 13 Q. P. I). 392 ; 53 L. .1. (N.S.) Q. B. 
 482 ; 32 W. 11. 890 ; .50 L. T. (N.S.) 
 774 
 
 17 Q. P. 1). 290 : 'A P. T. (X.S.) 720 \ 
 
 L. P. 3 Ex. 104 ; 3G L. .T. (N.S.) Ex. 218 ; 
 15 W. P. 1174 ; IG L. T. (N.S.) 792 • 
 P. P. 2 Ex. 304 
 
 L P. 11 Eq. 58G ; 54 L. T. (N.S.) 720... 
 10 W. P. .334 
 
 28 Chy. 346 
 
 1 Eden, 1 
 
 4 (iiir. 499 ; 10 .Tur. (N.S.) 290 ; 12 W. P. 
 
 524; 10 L. T. (N.S.) G2 
 
 2 Pe C. .J. & S. 122 
 
 2 V. & B. 200 ; 1 V. & B. 180 : 2 Spence, 
 
 Eq. Jur. 289 
 
 4 East, 1 ; 3 Cora. Dig. 297 ... ■' 
 
 4 L. E. H. L. 317 ; 39 L. .T. (N.S.) ('. V. 
 187 ; 18 W. P. 1041 ; 22 L. T. (N.S.) 
 808; L. P. 2 C P. G61 
 
 1 Atk. 196 
 
 IF. &E. 409 
 
 2 Atk. 520 
 
 29 L. T. (N.S.) G43 
 
 l.r. &W. 99 
 
 1 P. Wms. 768 
 
 2 Ch. D. 104 ; 45 L. J. (N.S.) Ch. 293 
 
 2 Vern. 53 
 
 IP. Wms. 249 
 
 7 W. R. 372 
 
 Tr. P. 5Eq. 324 
 
 3 P. Wms. .356 
 
 35 L. .). (N.S.) Cli. 31 ; 11 .Jur. (N 
 558 ; 13 W. P. 707 ; 12 P. T. (N. 
 600 
 
 Ir. P. 8Eq. 192 
 
 15 Q. B. D. 605 
 
 18Ves. 259 
 
 4 1). Y. & .J. 264 ; 31 P. .1. (N.S.) Ch. 
 798 ; 7 P. T. (N,S.) 178 
 
 Paoe. 
 
 3, 89 
 
 409, 410 
 
 26 
 
 •.V.\H 
 
 396 
 204, 390, 40.3, 404, 
 4.38, 443, 447, 448, 
 
 451 
 
 120 
 
 315 
 62, 131 
 
 498 
 
 1.38, 1.39 
 
 14, 38, 41, 47, .00, 
 
 57, 58, 59, 64, 70, 
 
 71, 73, 74, 75, 
 
 516, 521, 544 
 
 96, 131, 137 
 
 149 
 301 
 56 
 
 384 
 
 342 
 495, 503 
 
 218, 513 
 
 30, 50, 98, 107 
 
 109, 538, 541, 542 
 
 114 
 470 
 100, 110, 540 
 297 
 431 
 386 
 104 
 11, 12, 5S, 64, 84, 
 
 85, 97, 98, 99, 
 
 100, 104, 106, 109, 
 
 110, 111, 125, 526 
 
 574 
 
 25, 26, 27 
 
 440, 443 
 
 270, 273, 276 
 
 407 
 
 336 
 396 
 104 
 
 506 
 
 40.3,404,406.414, 
 
 416 .418, 42(t, 423, 
 
 424,'42."),4:i9, 44(1. 
 
 444, 457 
 
 (J
 
 TABLE OF CASES. 
 
 Names of Cases. 
 
 ^linister r. Price 
 3Iitchcll /•. Homfray 
 
 — r. licynolJs... 
 Mitchinson r. Hewson 
 Mitford r. lleynolds ... 
 
 Mizen v. Pick 
 
 Mocatta ?'. Murgatroyd 
 Mofiett t'. Whittaker... 
 
 Mole i\ Smith 
 
 Molony r. Kernan ... 
 Montacute v. Maxwell 
 
 Montague v. Sandwich 
 Monteliore '/•. Behrens 
 
 — V. Brown ... 
 Montefiori r. Monte- 
 
 liori 
 
 IMoodie r. Keid 
 
 jMoor r. Eycault 
 Moore & Piobinson's 
 Banking Co., J'J.c 
 parte 
 
 Moore v. Crofton 
 
 — V. Darton 
 
 — V. Hart 
 
 — V. Moore 
 
 — V. Mulligan ... 
 
 — V. Ulster Bank- 
 ing Co 
 
 Moravia v. Sloper 
 Morewood v. South 
 
 Yorks By., 
 &c., Co. ... 
 
 — V. Wilkes ... 
 Morgan \\ Brundrett... 
 
 — V. Malleson ... 
 
 — V. Minet 
 
 Morley r. Morlcy 
 Morrison, Ux parte ... 
 JMorse v. ^lartin 
 
 — V. lloyal 
 
 Mortimer 2'. Capper ... 
 Mortlock, Ex 2)urte ... 
 — V. Buller ... 
 Mountford v. Keene ... 
 Mowbray, Exparte{^Ex 
 
 parte Pye) 
 
 Moxon V. Payne 
 
 Muggeridge v. Stanton 
 Mulholland '/•. William- 
 
 Blullins r. Guilfoylo .. 
 
 Mulvany r. Dillon 
 Murphy, Ex parte . . 
 — 'i\ Abrahams 
 
 Wheue TIeported. 
 
 Page. 
 
 S.)Q. 
 T. (N. 
 
 ^.' 
 
 1 F. & F. G8G 
 
 8 Q. B. D. .087 ; .00 L. .1. (N. 
 
 400; 2it "\V. B. 558; 45 J.. 
 
 01)4 j 
 
 1 P. Wms. 181 
 
 7 T. B. 348 
 
 16 Sim. 130 
 
 3M. &W. 481 
 
 1 P. Wms. 393 
 
 1 Lang. &Town. 141 
 
 .Tac. 490 
 
 ■2 D. & War. 31 
 
 1 P. AVms. 618; 1 Stra. -JOG; Prec. Ch. 
 
 526 
 
 12 Ve.s. 148 
 
 L. B. 1 Eq. 171 
 
 7H. L. C. 241 
 
 1 W\ Bl. 363 
 
 1 Mad. 510 
 
 Prec. Ch. 22 
 
 14 Ch. D. 379 ; 49 L. J. (N.S.) Bkcy. GO ; 
 28 W. B. 924; 42 L. T. (N.S.) 443 ... 
 
 3 J. & Lat. 443 .. 
 
 4 De G. & Sm. 517 ; 20 L. J. (N.S.) 
 
 Ch. 626 
 
 1 Vern. 201 
 
 L. B. 18 Eq.474; 43 L. J. (N.S.) Ch.617 ; ) 
 
 22 W. B. 729 ; 30 L. T. (N.S.) 752 j" 
 
 W. N. (1884) 34 
 
 I. B. lie. L. 512 
 
 AVilles, 30 
 
 3 H. &V. 798; 28 L.J. Ex. 114 
 
 OC &P. 144 
 
 oB. &Ad. 289 
 
 L.B.10Eq.475;39L..J. (N.S.)Ch.680; 
 18 AV. B. 1125; 23 L. T. (N.S.) 336... 
 
 6 Ch. D. C38 ; 25 W. B. 744 ; 36 L. T. 
 (N.S.') 948 
 
 2 CIi. Ca. 2 
 
 28 W. B. 524 
 
 34 Beav. 500 
 
 12 Ves. 373 
 
 1 Bro. C. C. 156 
 
 W. N. (1886) nil 
 
 10 Ves. ?iM 
 
 19 W. B. 708 ; 24 L. T. (N.S.) 925 ... 
 
 18 Ves. 140 
 
 B. B. 8 Ch. 881; 43 L. J. (N.S.) Ch. 
 240 
 
 7 W. B. 638 
 
 14.Chy. 291 ; 12 C'liy. 91 
 
 2L. B. Ir. 95 -' 
 
 1 Ball & B. 409 [ 
 
 I Sell. & Lof. 44 
 
 15 Ir. Ch. Bc-p. 371 
 
 136 
 483,484,487,491, 
 493, 495, 5(12, 503, 
 
 506 
 
 469 
 
 25 
 472, 473, 477 
 
 302 
 
 197 
 
 327 
 
 514 
 
 504 
 
 372, 375, 383, 387 
 
 03, 05 
 
 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 
 
 20 
 
 454 
 173 
 
 160, 317, 325 
 71 
 101 
 
 410, 418, 441 
 
 484, 493 
 51 
 151 
 394 
 509 
 268 
 152 
 4 
 499, 502, 551 
 
 419 
 
 496, .'■)05, 507 
 425,431, 441 
 
 91 
 254, 260, 270, 357, 
 358 
 495 
 338 
 40,521
 
 TABLE OF CASES. 
 
 li 
 
 Namks op Cases. 
 
 WiiEitE Repouted. 
 
 TAflK. 
 
 MuiTiiy r. Gl.isse 
 
 — r. TiOi-d Elibaiil; 
 
 — v. Mackenzie... 
 
 — r. IMann 
 
 — ?•. Pal m or 
 Muskerry v. Cliiiinery 
 Mutton, Ex parte 
 
 MyJclletnn r. Lord 
 Kenyon 
 
 Myers v. Duke of 
 Leinster . . . 
 — l: Elliott... 
 
 Nab V. Nab 
 
 Naden, Ki-j^avte 
 
 Nairn r. Prowse 
 Naldred v. (iilliam ... 
 Nanney r. \Villiams . . 
 Nantes v. Corrock 
 National Lank, Ux 
 
 imrte 
 
 National Ciuardian ] 
 
 Assurance Co., Ex - 
 
 parta j 
 
 National Mercantile ] 
 
 Lank, Ex parte ) 
 
 National Provincial | 
 Lank v. Harle j 
 
 — ?'. Jackson ... 
 Naylor r. Laldwin ... 
 
 — ?•. "Winch 
 
 Neale v. Day 
 
 — V. Neale 
 
 Neate ?'. Latimer 
 Nedham r. Leaumont 
 
 Nedly r. Ncdly 
 
 Neeve v. Keck 
 
 Negus V. Lorster 
 Newitt, Ex parte 
 
 Newman v. Lusliam ... 
 
 Newport's Case (Smar- 
 tle V. Williams) 
 
 Newstead r. Searles ... 
 
 Newton r. Askew 
 Niclioll V. .Tones 
 
 Nichols V. Hall 
 
 Nicholson v. Cooper .. 
 
 2.3L. J. fN.S.)Ch. 12G 
 
 10\'os. 84 
 
 L. R. 10 ( '. P. 02.-, : 44 L. J. (\.S.) ( '. P. 
 
 31.3; -J.-i W. L. 595; 32 L. T. (N.S.) 
 
 I 777 
 
 2 Ex. 5:38 ; 17 L. J. Ex. 25G ; 12 .Tur. C34 
 
 2 Sch. & Lef. 474 
 
 .'5 CI. & F. 1 ; ;j Law Pvec. (N.S.) 200 ... 
 L. L. 14 Eq. 178; 41 L. J. (N.S.) ]?kcy. 
 
 57 ; 20 W. P. 882 ; 20 L. T. (N.S.) 
 
 'JIG 
 
 2 Yes. .Tun. .101 , 
 7 Ir. Eq. Pep. 14i 
 IGQ. L. 1). .ViG; : 
 
 L. .T. (N.S.) Q. B. 
 233; 34 \\. P.;j39; 54 L. T. (N.S.) 
 552 ... 
 
 10 Mod. 404 
 
 L. P. 9 VM. G70 ; 4:! L. J. (N.S.) Lkcy. 
 
 121 ; 22 W. 1!. O.JG 
 
 G Yes. 752 
 
 1 P. Wms. 577 
 
 22 Peav. 452 
 
 9 Yes. 182 
 
 2G W. P. 375 
 
 10 rii. D. 408 ; 27 \\. P. 498 ; 40 L. T. 
 (N.S.) 237 
 
 15 Ch. D. 42 ; 49 L. .T. (N.S.) Lkcy. 62 ; | 
 28 W. P. 848 ; 43 L. T. (N.S.) 3G / 
 
 6 Q. L. D. G2G; 50 L. J. (N.S.) Q. L. 
 437; 29 W. P. 504; 44 L. T. (N.S.) 
 585 
 
 33Cii. D. 1 
 
 1 Kop. Ch. GO 
 
 1 Sim. & St. 564 
 
 28 L.J. (N.S.) Ch. 45; 4 Jur.(N.S.) 1225 ■' 
 
 1 Keen, 672 
 
 2Y. &C. Ex. 257 
 
 3 Pep. 83 b 
 
 5 De (!. & Sm. 377 
 
 Mod. lOG 
 
 30 W. 1!. G71 ; 4G L. T. (N.S.) 675 ... 
 
 16 Ch. D. 522 ; 29 W. \X. 344 ; 44 L. T. 
 (N.S.) 5 
 
 17 Q. L. 723; 21 L. J. Q. E. 139; IG 
 Jnr. 350 
 
 Skin. 423 ; 3 Lev. 387 
 
 1 Alk. 2G5 
 
 11 Lcav. 145 
 
 L. P. 3 Eq. 709 ; 3G L. J. (N.S.) Ch. 
 ,544 ; 15 ^V. P. .303 
 
 L. P. 8 C. P. 322 ; 42 L. .1. (N.S.) M. C. 
 105 ; 21 AV. P. 570 ; 28 I.. T. (N.S.) 
 473 
 
 3 IJ. .K: X. 384 ; 27 L. J. U\.S.) Ex. 303 
 
 411 
 
 158, 150 
 
 531 
 
 514 
 
 28-1, 28G, 289 
 
 152 
 
 261, 2G2, 3G2, 380 
 
 182, 184,219,246, 
 
 247, 263, 322 
 
 139 
 
 444 
 
 312 
 
 223, 268, 341, 342 
 
 450, 474, 475, 47G 
 
 409, 501 
 
 18, 483 
 
 159, 160 
 
 142, 143, 145, 146, 
 150, 156, 159 
 
 412 
 
 480, 481 
 
 164, 220, 224 
 
 275 
 
 14, 22, 70, 86, 87, 
 
 534, 535 
 
 276 
 114, 126 
 ISS, L'18 
 
 40-i 
 
 363 
 
 313 
 
 148 
 
 187 
 
 315 
 
 100, 343, 346, 347, 
 
 348, 340, 350, 352, 
 
 353, 3,55, 357 
 
 300, 401, 476 
 
 281 
 
 538 
 
 1.-.7, 160 
 
 <J -2.
 
 lii 
 
 TABLE OF CASES. 
 
 Names op Cases. 
 
 Nicol <•. Nicol 
 
 Nitrhtingale i'. Earl 
 
 I'Virers 
 
 Xixon ;•. Hamilton ... 
 
 Norciitt /•. Dodd 
 
 North /•. Ansell 
 
 North Central Wagon 1 
 < o. /'. Manchester, '- 
 &c., Co J 
 
 North of England Co. | 
 r. Archangel Co. j 
 
 North Western Bank, I 
 E.r parte ... ) 
 
 "S orlon, Kr parte 
 — r. Relly 
 
 Nottidge r. Prince ... 
 
 Nunes r. Carter 
 
 Nunn r. Wilsmore ... 
 Nurse v. Craig 
 
 O'Brien /•. Lewis 
 
 Ockford *'. Barelli ... 
 O'Connor, Jn re 
 
 — V. Bernard... 
 Odell, E.c parte 
 
 O'Doherty v. The 
 
 Ontario Bank 
 
 O'Donovan r. Rogers... 
 Official Receiver v. 
 
 Taiiby 
 
 Ogden V. Hesketh 
 O'Gorman r. Comyn.., 
 Olliver c. King 
 
 Ord V. Johnstone 
 Oriental Banking Co. I 
 r. Coleman ... ) 
 Orlabar r. Harwar .. 
 Osborn v. (,'hurchnian 
 
 Osgood V. Strode 
 
 Osmond r. Fitzroy .. 
 (Jwen V. Body 
 
 — V. Braddell .. 
 
 — V. Owen 
 
 Oxley, Ex parte 
 
 — V. Lee 
 
 Where Reported. 
 
 Page. 
 
 31 Ch. I). 524 ; uu L. .1. (N.S.) Ch. 437 ; ! 
 34 W. R. -.'83 ; 54 L. T. (N.S.) 470 ... 1 
 
 3 P. Wms. L'oa 
 
 •-'Dr. & Wal. 301 
 
 Cr. & I'h. 1U(I ' 
 
 •2 P. Wms. 018 
 
 32 Ch. 1). 477 ; 34 W. 1!. 4;!() ; 54 L. T. 
 (N.S.) 48 
 
 L. R. 10 0. B. 249 ; 44 L. .1. (N.S.) Q. B. 
 
 121 : 24 W. R. 162 ; 32 L. T. (N.S.) 
 
 501 
 
 L. R. 15 Eq. 09 ; 42 L. .T. (N.S.) Bkcy. : 
 
 21 AV. R. 09 ; 27 L. T. (N.S.) 461 ... 
 L. R. 10 Eq. 397 : 21 W. R. 402 
 
 2 Ed. 2«0 
 
 2 Girt". 24(i ; 29 L. J. (N.S.) Ch. 857 ; 
 
 Jiir. (N.S.) 1000 
 
 4 Moo. P. C. C. (N.S.) 222 ; L. R. 1 
 P. C. 342; 30 L.J. P. C. 12; 15 W. R. 
 
 8T. R. 521 I 
 
 2 N. R. 148 
 
 32 L.J. (N.S.) Ch. 50ii; 9 Jnr. (N.S.) 
 528 ; 1 1 W. R. 318 ; 8 L. T. 179 ; 4 Gill". 
 
 2o'w. R. i'lO ; 2.5 L. T."('n.S.)'504 ... 
 
 llr.Jur. (N.S.) 198; 8 Ir. Jur. (O.S.) 
 
 198; 27 L. T. (N.S.) 27 
 
 2 .To. (L. Rep.) 054 -j 
 
 lOCh. D.70; 48L.J.(N.S.) Bkcv. 1; 27 
 W. R. 274 ; 39 L. T. (N.S.) 333 
 
 32C. P. 285 
 
 7 Ir. Ch. Rep. 1 
 
 17 Q. 15. D. 88 ; 54 L. T. (N.S.) 847 ... 
 2 C. & K. 772 
 
 2 Sch. & Lef. 148 
 
 8 J)e 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. 035; 9 
 W. R. 432 ; 4 L. T. 9 
 
 Comb. 348 
 
 Cro. Jac. 127 ... 
 
 2 P. AVms. 245 ■ 
 
 3 P. Wms. 129 
 
 5 A. & E. 28 ; 2 II. ^ W. 31 ; N. & M. 
 448 
 
 L R. 7 Eq. 358 
 
 3 II. & C. 88 ; 33 I.. J. Ex. 237 : 10 Jnr. 
 
 (N.S.) 884; 11 I.. 'J'. i;;7 
 
 1 I'.all & B. 257 
 
 1 Atk. 025 
 
 313. 314 
 
 19-J 
 
 2.55, 200, 304, 307 
 
 18, 19, 20, 31, 37, 
 
 50, 455, 517, 549 
 
 330, .342 
 
 149 
 
 411 
 
 149 
 102 
 495 
 
 495, 551 
 
 101 
 
 14, 50, 82, 98, 
 
 202, 243, 247, 250, 
 
 307, 310 
 
 302 
 
 o07 
 270 
 
 100 
 
 09, 70, 72, 70, 
 
 322, 531 
 
 147, 148 
 
 50 
 225, 320, 328 
 
 101 
 172, 173 
 222, 341 
 
 182, 183, 5.37 
 389 
 
 137, 252 
 
 70 
 
 100 
 
 342, 344, 352, 3G1, 
 
 303, 534 
 
 490, 494 
 
 32, 100 
 409 
 
 253 
 
 338 
 
 190, 203
 
 TABLE OF CASES. 
 
 Illl 
 
 Names op Cases. 
 
 Wheiik Reported. 
 
 Page. 
 
 Pack V. Batlmrst 
 I'adget r. I'licst 
 
 Page r. Home 
 
 Paget ih Paget 
 
 — V, PcrcbarJ 
 
 Parfitt r. Lawless 
 
 Parker /'. ( 'arfcr 
 
 — r. iSeijeant ... 
 
 — V. Stones 
 
 Parkes v. Deo 
 
 Parnell v. llingston ... 
 
 — r. Stcilman ... 
 
 Parr v. Eliasoii 
 
 Parry v. Cawarden ... 
 Parsons, Ej parte ... 
 
 Partridge ;•. Gopp 
 
 Partyn c. Roberts 
 Patch V. Shore 
 
 Patersou r. Murphy ... 
 
 Patterson's Estate, In ] 
 
 re ) 
 
 Patterson r. "Wilh'ams 
 Paul c. Paul 
 
 Pauncefbot »'. Blunt ... 
 Pawson 0. Brown 
 
 Paxton V. Douglas ... 
 Payne, Exj^urtc 
 
 — V. Mortimer ... 
 
 Peacock r. Monk 
 Pearce, Ej: imrtc 
 
 — V. Brooks 
 
 Pearson, E,i- j^nirte 
 
 — Ill re 
 
 — V. Amicable 
 Assurance Office ... 
 
 Peat V. Powell 
 
 Peckham r. Taylor ... 
 Redder v. Mosely 
 Penibld V. Mould ... 
 
 Penhall (\ Elwiu 
 
 Penn r. Baltimore 
 Peiinefather v. Penne- 
 father 
 
 41 L. .l.(N.S.)) 
 200 : -r, L. T. • 
 
 3 Atk. 269 
 
 2 T. R. 97 
 11 ]'.eav. -227 
 11 J.. R. Ir. •-'(; ... 
 
 1 Esp. 205 
 
 L. R. 2 P. & M. -UVl 
 
 P. t]8 ; 21 W. R. 
 
 (N.S.)2].^ 
 
 ■I Hare, loit 
 
 Find;, 140 
 
 38 L. J. (N.S.) ( 'h. 4(; I 
 
 3 Sw. 531 
 
 3 Sm. & (;iir. :]37 ; 2 Jur. (N.S.) 834 ... 
 1 ('. & K. 153 
 
 1 J':a.st, ;i2 
 
 2 Dick. 544 
 
 16 Q. B. D. 532; 55 L. .J. (N.S.) Q. B. 
 
 408; 34 W. R. 717 
 
 2 Amb. 506 | 
 
 1 Amb. 314 
 
 2 Dr. & Sm. 589; 32 L.J. (N.S.) Ch. 
 185; Jur. (N.S.) 63; 11 W. R. 142 
 
 11 Hare, 88 | 
 
 4DeCi.J. & S. 422; 33 L. J. (N.S.)Ch. 
 
 596 ; 12 W. R. 941 ; 10 L. T. 801 ... 
 
 LI. &G. (t. PI.) 95 
 
 20 Ch. D. 742; 51 L. J. (N.S.) Ch. 839; 
 
 .30 AV. R. 801 ; 47 L. T. (N.S.) 210 ... 
 
 3 Rep. 82 a 
 
 13 Ch. D. 202 : 49 L. J. (N.S.) Ch. 193; 
 
 41 L. T. (N.S.) 339 
 
 19 Ves. 225 
 
 11 Cb.'D".539 -. 27 "W. R. "368; 40 L. T. 
 
 (N.S.) 29(; 
 
 4 De G. & J. 447 : 28 L. J. (N.S.) Ch. 
 716; 5 Jur. (N.S.) 749; 1 Giff. 118 ... 
 
 1 Ves. 128 
 
 25 Ch. D. 656 ; 53 L.^J. (N.S.) Ch. 500 ; 
 
 32 W. R. 187 ; 49 L. T. (N.S.) 475 
 L. R. 1 Ex. 213; 35 L. J. (N.S.) Ex. 
 
 134; 12 Jur. (N.S.) 342; 14 W. R. 
 
 614; 14 L. T. 288 
 
 L. R. 8 Ch. 667 ; 42 L. J. (N.S.) Bkcy. 
 
 44; 21 W. R. 688; 28 L. T. (N.S.) 
 
 796 
 
 3 Ch. D. 807; 25 W. R. 126; 35 ( 
 L. T.(N.S.)68 1 
 
 27 Beav. 229 
 1 Amb. 387 
 31 Bcav. 254 
 31 Beav. 159 
 L. R. 4 E(i. 562 
 981 
 
 1 Sm. & Giff. 258 
 
 1 Ves. 453 
 
 36 L. J. (N.S.) Ch.) 
 
 L R. 7 E(j. 360 
 
 33 
 
 69 
 
 447, 492, 496 
 
 2(;8, 329 
 
 117, 129, 130, 131, 
 
 171, 176, 178 
 
 480, 485, 486, 488, 
 
 492,49.3,49.5,497, 
 
 498 
 
 237, 241, 284 
 
 202, 213, 222, 235 
 
 438, 439, 444, 446, 
 
 454, 4.55 
 
 108 
 
 420, 454, 455 
 
 91 
 
 315, 316 
 
 513 
 
 1.39, 140, Ur> 
 
 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, 
 
 4,50, 453 
 
 20, 34, 245, 270, 
 
 272 
 
 534 
 
 395, 396
 
 Iiv 
 
 TABLE OF CASES. 
 
 Names of Cases. 
 
 Where Repoiited. 
 
 Pennell v. Reynolds . . . 
 Penwaiilen r. Roberts 
 
 Perkins v. Bradley ... 
 
 — V. AValker ... 
 Perks V. Mylrea 
 Perrott /•. Perrott 
 Perry-Herrick /•. Att- 1 
 
 wood J 
 
 Perry r. Whitehead ... 
 Perssc r. Persse 
 Peter c. Nicolls 
 
 — r. Russell 
 
 Petre r. Espinasse ... 
 
 Pharmaceutical Soc. | 
 /■. London & Prov. - 
 Supply Assoc. j 
 
 Pholtiplace /•. Sayles... 
 
 J'liilips r. Philips 
 
 I'hiliips c. Barnet 
 
 — V. Earner 
 
 — V. Mullings ... 
 
 Phillip.son r. Kerry ... 
 Phillpotts V. Phillpotts 
 
 Phipps V. Ennismore... 
 I'ierce r. AVarinp; 
 PickarJ r. Marriage ... 
 
 I'ickcring ?;. The U- | 
 Iraconibe Ry. Co. j 
 
 Pickstock V. Lyster 
 I'ike V. Fitzgibbon 
 
 Pitt's Case 
 
 I'linvdon /'. Greene 
 I'lunib V. Craker 
 
 — r. Flintt... 
 Pollard r. Grenvil 
 I'oiisford r. Walton 
 
 — r. Widncll ... 
 Ponsonby v. Ponsonby 
 Popplewell, E.i^iarte. . . 
 
 Porter v. Boyle 
 
 — 2'. Clinton- 
 Pott r. 'J'odhunter 
 
 J 'otter r. Totter 
 
 Potlinger, Kr jtarte ... 
 
 Poulton 1 . AV'iseman... 
 Powell V, Evans 
 
 11 C. B. (N.S.) 709 ; 5 L. T. 286 
 9 Q. B. 1). 137; 52 L. J. (N.S.) Q. B. 
 .312 ; 30 W. R. 427 ; 40 L. T. (N.S.) 
 
 101 
 
 1 Hare, 21!» ; .Jur. (N.S.) 254 
 
 1 Vern. 97 
 
 W.N. (1884)04 
 
 14 East, 423 
 
 Pack. 
 
 2 DeCi. &-J. 21 
 
 V'es. 544 
 
 7 CI. &. F. 279 ; West's App. Cas. 210 
 L. R. 11 Eq. .391 ; 19 AV. R. 018; 24) 
 
 L. T. (N.S.) 381 / 
 
 2 Vern. 72(5 ; Gilb. Eq. Rep. 122 
 
 2 .My. & K. 490 
 
 5 App. Cas. 857 ; 40 L. .T. (N.S.) (,). P. 
 730; 28 W. R. 957 ; 43 i>. T. (N.S.) 
 
 389 
 
 4 Mason, 312 
 
 Coxc, MSS. B. B. 218 
 
 1 Q. B. D. 430; 45 L. .1. (X.S.) Q. B. 
 277 ; 24 W. R. 345 ; 34 L. T. (N.S.) 
 177 
 
 1 Esp. 355 
 
 L. R. 7 Ch. 244; 41 L. .1. (N.S.) Ch. ( 
 211; 20 AV. R. 12'J 
 
 32Beav. 028 
 
 10 C. B. (N.S.) 85 ; 20 L. .J. (N.S.) C. P. 
 11 
 
 4 Russ. 131 
 
 1 P. Wms. 120 
 
 1 Ex. 1). 304 ; 45 L. .T. (X.S.) Ex. .594 ; 
 24 W. R. 880 ; 35 L. T. (N.S.) 343 ... 
 
 L. R. 3 C. P. 235; 37 L. .1. (N.S.) C. P. 
 118; 10 W. R. 458 ; 17 J>. T. (N.S.) 
 050 
 
 8 Mau. & S. 371 | 
 
 17 Ch. U. 454 ; 50 L. J. (N.S.) Ch. 394 ; 
 29 W. R. 551 ; 44 L. T. (N.S.) 502 ... 
 
 1 Amb. 204 
 
 Co. Ent. 1()2, pi. 35 
 
 10 Q. B. i). 40 ; 55 L. .1. (N.S.) Q. B. 
 110 
 
 2 Anstr. 439 
 
 1 Ch. Ca. 10 
 
 L. R. 3 C. P. ir,7 : 37 L. .F. (N.S.) C. P. 
 
 113; 10 W. R. 303; 17 L. T. (N.S.) 
 
 511 
 
 W. N. (1809) 81 
 
 9 J'. D. 122 
 
 21 Ch. D. 73; 52 E. .T. (N.S.) Ch. 39; 
 
 31 W. R. ;35 ; 47 L. T. (N.S.) 274 ... 
 
 3 Law Rec. 181, 305 
 
 (Junib. 222 
 
 2 Coll. 70 ■[ 
 
 iVcs. 441 
 
 8 Ch. 1). 021 : 47 I>. .T. (N.S.) Bkcy. 43 ; 
 
 20 W. R. 048 ; 38 L. T. (N.S.) 432 ... 
 
 Noy, 105 
 
 5 Ves. 839 
 
 155 
 
 71, 170 
 
 213, 407 
 
 20 
 
 474 
 
 5, 116, 190, 197, 
 
 198 
 
 394 
 
 218, 2 to, 270, 279 
 
 193,241,31.5,511, 
 
 512, 550 
 
 199 
 
 470 
 
 113, 120 
 499 
 
 420 
 
 113 
 401,470, 480, .181, 
 485, 499,.5'Jt),50l, 
 
 .552 
 391, 481, 483, 502 
 
 470 
 
 199, 202, 338 
 
 494 
 
 151, 157, 100 
 
 220, 227 
 
 32, 99, 105, 100, 
 
 107, 110, 105 
 
 283 
 472 
 543 
 
 .545 
 
 131, 252 
 390 
 
 90 
 
 540, .548, 550 
 
 342 
 
 145, 147, 1.58, 159 
 
 38, 45 
 
 315 
 
 247, 251, 200, 270, 
 
 278, .522, 548 
 
 371 
 
 398, 399 
 
 203, 220, 542 
 
 61
 
 TABLE OF CASES. 
 
 Iv 
 
 Namks of Cases. 
 
 Wuiiui: IvEroRTEn. 
 
 Page. 
 
 Power V. Bailey... . 
 
 — ?'. Cook ... . 
 
 — V. Walker 
 Pownall V. Anderson. 
 IVatt r. Barker ... . 
 Prebble r. Boghurst . 
 Price, Ex parte... 
 
 V. Jenkins 
 
 — /•. Price 
 
 — r. Sands 
 
 Piidcaiix r. Lonsdale... 
 
 Prime v. Stebbing' 
 Prince r. Nicholson ... 
 Pringle v, Hodgson ... 
 
 Proby u. Landor 
 
 Procter v. Chegg 
 
 — V. Bobinson ... 
 
 — w. AVarrcn 
 Prodgers v. Langham 
 Prole 0. Soady 
 
 Prosser r. Edmonds ... 
 Pullen r. Ready 
 
 Pulvcrtoft V. Pulvertoft 
 
 Pimnctt, Ex parte ... 
 
 Pyc, Ex parte 
 
 — V. ButterficlJ 
 
 Padcliffe, I)i re 
 
 Baleigh's (Sir W.) Case 
 
 Piamsden r. Hylton ... 
 
 — V. Jackson ... 
 
 — V. Lupton ... 
 
 Eamsbire v. Bolton ... 
 
 Rancliffe v. Parkyns .. 
 JIand V. Cartwright .. 
 Kandal v. Randal 
 Randall ?;. Morgan .. 
 
 Raw V. Pote 
 
 Raworth o. Harriot .. 
 
 Read r. Potter 
 
 Reade v. laving.stone.. 
 Reader, Ex parte 
 
 1 Ball & B. 49 
 
 I. R. 4C. L'21 
 
 3 M. & S. 7 
 
 2 .Tnr. (xN.S.) 8.-)7 
 
 4Rnss. ."jOT ; 1 Sim. 1 
 
 1 Sw. ;)()9; 1 :\loo. 2,').S ; 7 Taunt. ; 
 21 Ch. ]). .').-):5 ; ;J1 W. j;. 10 1 ; .17 
 (N.S.)4()2 
 
 5 Cli. i). Ci;); 4C, L. .1. (N.S.' 
 805; 37 L. T. (iN.S.) 61 ..' 
 
 B. T. 
 
 2 
 
 14 Bcav. rm ; 21 L. J. (N.S.) Ch. 53 • 
 Cduidsb. lis 
 
 1 De G. J.& S. 433 ; 9 Jur. (X.S.) 507 ; 
 4Ciiir. 159 
 
 2 Vcs. 409 
 
 1 Mars. 280 ; 5 Taunt. 333 
 
 3 Ves. G17 
 
 28 Beav. 504 
 
 21 W. R. 240, n 
 
 15 W. R. 138; 15 B. T. (N.S.) 431 ; 35 
 Beav. 329 
 
 Sel. Ca. Ch. 78 
 
 Sid. 133 I 
 
 L. R. 3 Ch. 220 : 37 L. J. (N.S.) Ch. 
 24t; ; 1(3 W. R. 445 
 
 1 Y. & C. Ex. 481 
 
 2 Atk. 587 
 
 18 Ves. 90 -' 
 
 16 Ch. D. 226 ; .50 L. J. (N.S.) Ch. 212 ; 
 29 W. R. 129 ; 44 L. T. (N.S.) 226 ... 
 
 18 Ves. 140 I 
 
 5 B. & S. 829 ; 34 L. J. (N.S.) g. B. 17 
 
 7Ch. D. 733; 
 Lane, 42 ... 
 
 2 Ves. 304 
 
 26 W. R. 417 
 
 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. 98t>; 21 L. T. (N.S.) 
 50 
 
 6 Dow, 149 
 
 iCh. Ca. 59 
 
 2 P. Wm.s. 467 
 
 12 Ves. 67 
 
 2 Vern. 2.39 
 
 1 My. & K. 643 
 
 Cro. .lac. 140 
 
 3 Joh. Ch. Rep. .500 
 
 L. J{. 20 Eq. 7(33 ; 44 L. J. (N.S.) Bkcy. 
 
 139 i 32 L. T. (N.S.) ■:^ia 
 
 342 
 407 
 412 
 399 
 462, 495 
 342 
 
 523 
 203,218,221,247, 
 2.54, 257, 258, 259, 
 260, 342, 343, .344, 
 345, 346, 348, 349, 
 353, 355, 356, 357, 
 
 359, 360, 529 
 421,480,481,48.3, 
 
 485, 492, 490 
 315 
 
 477, 496, 551 
 336 
 
 108 
 
 19, 299 
 
 391 
 
 501 
 
 312 
 
 20 
 
 221, 31.5, 316, 318, 
 
 319 
 
 384, .386 
 383 
 
 273, 275 
 19.5, 208, ,341, .34.5, 
 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 
 
 219, 467 
 
 390 
 
 .368, 378, 380 
 
 183, 197, 332 
 
 497 
 
 166 
 
 53, 383, 521 
 
 103
 
 Ivi 
 
 TABLE OF CxlSES. 
 
 Names of Cases. 
 
 Keed i;. Blades 
 
 — V. O'Brien 
 
 — V. Thoyts 
 
 — V. Wilmot 
 
 Reese Eiver Silver | 
 
 3Iing. Co. i-. AtweilJ 
 
 Ixccves' Case 
 
 Iveeves f. Barlow 
 
 — r. Capper 
 
 — V. Reeves 
 Eejr. r. Creese ... 
 
 — V. Sinitli 
 
 — r. Townsliend ... 
 Eeid c. lleid 
 
 — r. Shergold 
 
 — V. Thompson 
 Kemmett v. La^\Tence 
 
 Rejncll r. Peacock .. 
 
 Reynev r. Powel 
 
 Reynolds, Ex imrte .. 
 
 — Ej: parte ... 
 
 Rex 1-. Bridger 
 
 — c. Inhabitants of 
 
 Laindon 
 
 — V. Inhabitants of 
 
 Northwingfiekl 
 
 — i\ Inhabitants of 
 
 Scammonden 
 
 — V. Nottingham ... 
 Rhodes v. Bate 
 
 — r. Cook 
 
 Rice V. Serjeant 
 
 Richards v. Delbridge 
 
 — r. French ... 
 
 — V. James 
 
 — ?'. Lewis 
 
 Richardson, Ta re 
 
 — r. Horton ... 
 
 — V. Richardson 
 
 — c. RhoduH ... 
 
 — v. Smallwood 
 
 Riches V. Evans 
 
 J{ickanls v. Att.-Gcnl. 
 Rider v. Kidder 
 
 Where Reported. 
 
 W. R. 601; 201 
 
 J. (N.S.) g. B. 
 50 L. T. (N.S.) 
 
 (N.S.) 
 L. T. 
 
 5 Taunt. 212 
 
 7 Beav. '.VI 
 
 6M. & W. 410; 8 D. V. C. 41(5 
 
 5 Moo. & P. 583 ... 
 
 L. R. 7 Eq. 347; 1 
 L. T. (N.S.) 1(33 
 
 2 Vent. 3G3 
 
 12 Q. B. D. 436 ; 53 I 
 192 ; 32 W. R. 672: 
 782; 11 Q. B. I). 600 
 
 5 Bing. N. C. 140 
 
 9 Mod. 132 
 
 L. R. 2 C. C. R. 105 ; 43 L. J. 
 
 M. C. 51 ; 22 W. R. 375 ; 29 
 (N.S.) 897 ; 12 Cox, C. C. 539 
 
 6Cox, 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 Vcs. 370 
 
 2 Ir. Ch. Rep. 26 
 
 15 Q. B. 1004; 20 L. J. Q. B. 25; 14 
 
 .Tm-. 1067 
 
 2 Ro. 105 
 
 2 Brownl. 79 
 
 15 Q. B. 1). 169; 54 L. J. (X.S.) (^). 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. 7.56 ; 
 
 30 W. H. 651 ; 46 L. T. (N.S.) 568 ... 
 1 M. & W. 145 
 
 S T. R. 379 
 
 1 B. & Ad. 912 
 
 ST. 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 ; 13 L. T. (N.S.) 778 ... j 
 
 2 Sim. & St. 488 
 
 7 Mod. 37 
 
 L. R. 18 Eq. 11 ; 43 L. J. (N.S.) Ch. ( 
 459; 22 W. R. 584 | 
 
 18 W. R. 636 ; 22 L. T. (N.S.) 329 ... 
 L. R. 2 Q. B. 285 ; 8 B. & 8. 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 
 
 30Ch. I). 396 
 
 7 Beav. 112; 13 L. J. (N.S.) Ch. 186; 
 
 7 Jur. (N.S.) 1144 
 
 L. W. 3 Eq. (WC) ; 36 L. J. (N.S.) Ch. ) 
 
 6.53 : 15 W. R. (JOO / 
 
 14 Rich. S. C. 95; 19 L. T. (N.S.) 106... 
 
 Jac. 552 ... 
 
 9 Car. & P. 642 
 
 12 CI. &F. 41 
 
 10 Ves, 360 
 
 Page. 
 
 118, 125, 126, 130 
 
 443 
 
 464 
 
 123 
 .32,70,72, 107, .522, 
 526, 527, 528, 529 
 
 148 
 
 122, 123 
 
 344 
 
 149 
 
 540, .543 
 
 147 
 
 284, 296 
 396 
 395 
 
 175, 177 
 .332 
 204 
 
 .523 
 
 539, 540 
 71 
 
 266, 267 
 
 469 
 
 266, 2('>7 
 71, 111, 169, 193 
 
 483,487,494,49.5, 
 496, 503, 504, 551 
 
 504 
 
 178, 179, 464 
 
 389,403,404,4(16, 
 
 416, 418, 423, 424, 
 
 439, 441, 447, 457 
 
 503 
 
 153 
 
 2.38, 2.39 
 408, 454 
 
 92, 166, 333,533 
 416, 418, 419,4.3K, 
 
 440, 447, 454, 455 
 
 54 
 38, 47, .5(», 54, 61, 
 62,64,70,7.5,516, 
 
 519, .520 
 
 99, 100,111, 122, 
 
 124, 126, 176, 17S 
 
 3 
 
 19, 58, 16a
 
 TAIUJ-: OF CASES. 
 
 Ivii 
 
 Names of Cases. 
 
 Ridgway, In re . 
 
 Xewstcad 
 Underwood 
 
 Kic 
 
 //* re 
 
 — i\ Punter 
 lii<;-(li'n r. VuUicr 
 lii])pon r. Norton 
 Ixoburts' Case 
 Ivoberts r. Lloyd.., 
 
 — r. Ivoberts 
 
 — r. Roberts 
 
 — V. Roberts 
 
 — V. Thomas 
 
 — V. Williams 
 Robertson c. St. John 
 Robinsun, J'Jx jxcrte 
 
 — 0. Briggs 
 
 — 0. Dickenson 
 
 — r. Macdonnoll 
 
 — c. i'ickeriuit 
 
 — r. Tucker . 
 Robson ?■. M'Creight. 
 Roche i\ O'Brien 
 lAOchl'ort r. Fitzmaurice 
 
 Rock r. Dade 
 
 Roddy r. Williams .. 
 Rudgers v. ^Marshall .. 
 Roe L\ Bradsbaw 
 
 — /;. Mitton ... 
 Rogers v. Ingham 
 
 — ('. .Jones ... 
 Rolfe r. Gregory 
 Rolls r. Miller ... 
 
 — V. Pearce ... 
 Rolph, Ex parte 
 
 Rooke r. Lord Kensing- 
 ton 
 
 liorke's Estate ... 
 Roscarrick /". Barton 
 Rose V. Haycock 
 — V. Rose 
 
 Rosher r. Willioms 
 
 Ross r. Army and Navy 
 
 Hotel Co. ... 
 
 • — c. Pope 
 
 WnEKE ReI'OIITED, 
 
 15 Q. B. D. 44G ; 54 L. J.(N.S) Q. B. 570 ; 
 
 ;UW. R. 80 
 
 r, DeC. F. & J. 4«;] 
 
 4 Wash. (Amer.) 1'2'.1 
 
 •22 Ch. 1). 71: ;y2 L. .1. (X.S.'^ Ch. f 
 :}4:i; ;!1 W. R. -j;;; is L. T. (.N.S.)-J 
 :5% 
 
 1 Cro. Eliz. 291 
 
 2 Ves. 2.5.S 
 
 2 Beav. (vJ 
 
 ;5 Atk. 30S 
 
 2 Beav. ?>'() 
 
 Dan. 14:5 
 
 15 W. R. 117 : 12 Jur. (N.S.) 971 
 
 n g. B. D. 7',n 
 
 GT. R. as 
 
 4 Hare, KJo 
 
 2 ]5ro. C. C. 1 10 
 
 1 Moll. 2itl 
 L. R. (3 Ex. 1 ; 2:! 
 ?, Russ. .'jgo 
 
 2 B. &Ald. \?A .. 
 
 16 Ch. D. (560; 
 527 ; 29 W. E. 
 165 
 
 IC. &E. 173 ., 
 25 Beav. 272 
 
 1 Ball & B. ;;.!o . 
 
 2 Dr. & War. 20 . 
 -Vpp. No. XIll. . 
 ;; .1. & Lnt. 1 
 
 17 Ves. 2'J4 
 L. R. 1 Ex. KHi; 
 
 14 W. ]!. 287 
 
 Page. 
 
 T. (N.S.) ;^95 
 
 50 L. J. Cs.H.) 
 385 ; 44 L. T. (N 
 
 Ch. 
 
 .S.) 
 
 . L..T. (N.S.) Kx. 
 12 Jur. (N.S.) 
 
 18 L. T. (N.S.) (;41 
 
 2 Wils. ;Jrdcd. 358 
 
 i 
 
 3 Ch. D. 351 ; 4G L. J. (N.SJ Ch. 322 ; 
 25 W. R. 338 ; 35 L. t. (N.S.) GG7 ... 
 
 7 Ch. ]). 345 ; 26 W. R. Dig. 65 ; 38 L. T. 
 (N.S.) 17 
 
 4 De G. J. & S. 57G ; 34 L. J. (N.S.) Cb. 
 274 
 
 27 Ch. D. 71 ; 53 L. J. (N.S.) Ch. 682 ; 
 32 W. R. 806 : 50 L. T. (N.S.) 597... 
 
 5 Ch. D. 730 ; 46 L. J. (N.S.) Ch. 791 ; 
 32 W. R. 899 ; 36 L. T. (N.S.) 438 ... 
 
 19 Ch. 1). 98 ; 51 L. J. (N.S.) Ch. 88; 
 30 W. R. 52 ; 45 L. T. (N.S.) 482 ... 
 
 2K. &J. 253 
 
 14 Ir. Ch. Rep. 442 
 
 1 Ch. Ca. 217 
 
 1 A. & E. 460, n. ; 3 N. & :\r. 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 L. T. (N.S.) - 
 387 ) 
 
 55 L. J. (N.S.) Ch. GUT 
 
 Plowd. 72 ... 
 
 407 
 
 508, 500 
 
 229 
 
 25, .32, 38, 40, 41, 
 
 42, 43, 49, 51, .•)7, 
 
 59, 60, GGJ 70, 73, 
 
 163, 193, 221,25s, 
 
 259, 51.5, .526 
 
 18, 24 
 
 56, 260 
 
 339 
 
 192 
 
 454, 4.55 
 
 470, 471, 472 
 
 431, 444, 445 
 
 139. 142, 14.5, 1G2 
 
 179 
 
 218 
 
 253 
 
 165, 171, 249 
 
 151 
 
 4G2, 178, 479 
 
 464 
 
 28 
 
 138 
 
 20 
 
 50G, 509 
 
 461 
 
 6 1, 348, 3i;S 
 
 316, .320 
 
 390 
 
 157 
 
 188,191, 19.3, 194, 
 
 247, 249, 260, 262, 
 
 277, 362, 538 
 
 275 
 
 532 
 
 501 
 
 1.35 
 409,410 
 143, 145 
 
 482 
 78, 2.58 
 345, 467 
 
 12 
 
 3(18 
 
 19.5,208,218,241, 
 
 246,2,54,327,511, 
 
 512, 513, 514 
 
 162 
 225
 
 Iviii 
 
 TABLK OF CASES. 
 
 Names or Cases. 
 
 IJoutb V. Koublol, 
 
 Kowley V. Eowlcy 
 Eufflcs c. Alston 
 
 Eummens i: ll;iic 
 
 IJusscl V. Il.immond 
 Iiussell, Ex parte 
 
 — V. Cuiuber 
 Eyall V. KoUe ... 
 
 — V. Iiowles ... 
 
 IJycroft V. riiristy 
 liyland v. Smith 
 
 St. Saviour's in South- 
 
 wark (Case ol) 
 St. Amand c. Jersey ... 
 St. John V. St. John... 
 Sackville West v. ) 
 
 Holmesdale ... J 
 Saffery, Ex parte 
 
 Saffron Walden, &c., ) 
 Society r. Kayner J 
 Sagitary r. Hide 
 Salmon v. Bennett 
 
 — r. James 
 Saltern r. Melhuish ... 
 Sandeman /•.Mackenzie 
 Sanders, In re 
 
 Sanger v . Sanger 
 
 Sanguinetti r. Messiter 
 Sarth v. Blanfrey 
 Saunders, lie, 
 
 — r. Dehew ... 
 
 — r. AVliarton 
 
 Savery v. King 
 
 Sayer v. Sayer 
 
 Scales V. Maude 
 
 Scarfe r. Hallifax 
 Scliolefield /•. 'I'enipler 
 Schreibcr r. Dinkel ... 
 
 Scot V. Bell 
 
 Scott /•. Davis 
 
 — /•. Perchor 
 
 — •/•. Scott 
 
 — r. Scott 
 
 — V. Spashett ... 
 
 — r. Tyler ' 
 
 Scottish Amicable Life '■ 
 
 Assur. Soc. V. Fuller 
 
 Where Reported. 
 
 1 E. & E. 850; 28 L. J. (N.S.) Q. B. 
 
 240 
 
 L. IJ. 1 H. L. Sc. 02 
 
 L. K. 19 Eq. 539; 44 L. J. (N.S.) Ch. 
 
 308 ; 23 W. K. 465 ; 32 L. T. (X.S.) 
 
 230 
 
 1 Ex. D. 109 ; 40 L. J. (N.S.) Ex. 30 
 
 24 W. B. 385 ; 34 L. T. (N.S.) 407... 
 
 1 Atk. 13 -' 
 
 , 10 Ch. D. .588 : 45 L. J. fNS.) Bkcy. 
 I 85 ; 21 W. B. 802 ; 34 L. T. (N.S.) 
 
 Face. 
 
 49 L. J. (N.S.) Ch. 465 
 43 L. T. (N.S.) 3 ... 
 
 295 
 
 1 Keb. 940 
 
 1 Atk. 105 ; 1 Yes. 348 ... 
 
 1 Ves. 348 
 
 3 Bcav. 2.38 
 
 1 My. & Cr. 53 
 
 Lane, 22 
 
 Com. Kcp. 25 
 
 11 Yes. .520 
 
 L. R. 4 H. L. 554 ; 39 L. J. (N.S.) Cli. 
 505 
 
 10 Ch. D. 008 ; 29 ^Y. B. 749 : 44 L. T. 
 (X.S.) 324 
 
 14 Ch. 1). 406 
 
 28 W. B. 081 
 2 ^'ern. 44 
 1 ( '<innect. licp. 525 
 
 1 Dowl. 369 
 
 1 Amb. 247 
 
 1 .1. & H. 013 
 
 47 L. J. (X.S.) Ch. 507 
 
 Holt, 327 
 
 L. B. 1 1 Eq. 470 ; 40 L. J. (N.S.) Ch. 372 ; 
 
 19 AV. B. 792 : 24 F. T. (N.S.) 649... 
 
 L. T. Dec. 12, 1885, 93 
 
 Gilb. Eq. 100 
 
 4 nift". 179 
 
 2 A'crn. 271 
 
 32 F J. (X.S.) Ch. 224 ; 1 X. B. 250 ... 
 
 5 H. L. C. (327 
 
 7 Hare, 387 
 
 De G. M. & G. 43 ; 25 F. J. (N.S.) 
 
 Ch. 433; l.Jur. (X.S.) 1147 
 
 7 M. &W. 288 
 
 Job. 1.55 ... 
 
 .54 F.J. (X.S.) Ch. 241 
 
 2 f-ev. 70 
 
 4 .Aly. & Cr. 87 
 
 3 Mer. 0.52 
 
 4 H. F. C. loi;.-,; IH Jur. (,N.S.) 755 ... 
 
 11 Ir. Eq. Kep. 487 
 
 3 Mac. &(i. o99 
 
 Wh. & Tu. F. C. 0th ed. vol. 2, 120 
 
 I. B. 2Eq. 53: IG AV. R. 274 ... 
 
 1.57 
 
 308 
 
 oOl, 313 
 
 408 
 30, 37, 45, 50, 67, 
 115,243,307,531, 
 
 534 
 
 1 1, 35, 30, .39, 42, 
 
 53, 54, 57, 59, 00, 
 
 64, 00,07,7.5, 171, 
 
 510,521, 540 
 
 170 
 
 3,4, 11, 17,99, 
 
 115, 110, 117, 120 
 
 115,110, 120,411, 
 
 452 
 425, 445, 446, 451 
 
 299 
 
 210, 342, 313 
 02 
 312 
 
 401 
 
 1.30, 152 
 
 70, 109, 183 
 
 54 
 178, 180 
 
 399 
 
 505 
 lOH, 435 
 109, 253 
 
 27, .30 
 
 492 
 
 390, 394 
 
 31 
 
 187 
 
 71 
 
 500 
 
 394 
 
 405, 440, 444, 447 
 171 
 504 
 292 
 221, 283 
 390 
 437 
 222, 254, 206 
 47() 
 301 
 409 
 
 411
 
 TABLI-: OF CASES. 
 
 IIX 
 
 Xamks of Cases. 
 
 Sciil r. Clarulgc 
 
 Se;il<i r. llaync 
 
 — r. Lowndes 
 
 Sear v. Asliwell 
 
 Seiirle /•. Law 
 
 vSeilgwick r. Place ... 
 Sciiling ''. Crawley ... 
 Selbv ''. .Licksou 
 Sclt'V. Maddox 
 
 St'idiousi; /■. Ivwlc 
 
 Scpalino r. Twitty ... 
 Scrconibc r. Sanders... 
 
 Sergcson r. Sealey ... 
 Sewell 0. Moxsy 
 Sexton r. Caniiey 
 
 — r. Wlieaton ... 
 
 Sliakespear, In re ... 
 
 Sliarp ?■. Tjeacli 
 
 — /•. Taylor 
 
 Sharpc r. JJircli 
 
 — V. Fox ... 
 Shattock V. Carden 
 
 Shaw, Ki- parte 
 
 — r. Bean ... 
 
 — r. .lake man 
 
 — '/). .Teft'ery ... 
 
 — ?'. Standisli 
 Shears v. Jacob ... 
 
 — r. Uogers 
 
 Shee r. French 
 
 Sheehy v. Muskerry . . . 
 
 Sheffield & Sdiith York- 
 shire Building Soc. v. 
 Harrison 
 
 Sheldon r. Handbury 
 
 Shelley o. AVright 
 
 Sheridan, In. re 
 
 Shewcn o. Yaiiderhorst 
 
 Shield, III re 
 
 Shine ?'. Gough 
 
 Shorland, E.c parte ... 
 
 Short r. Itidge 
 
 Shower /'. I'ilck 
 
 Sliubrick /■. Salniond... 
 
 Shurniur r. Sedgwick 
 
 Sibley r. Jliggs 
 
 Sibthorp y. Moxon ... 
 Siebert v. Spooner ... 
 Sig<'ers c. Evans 
 
 WlIEKE Eui'OIlTED. 
 
 ) Q. B. 
 
 • (N.s.) 
 
 51 L. J. (N.S.) Q. 
 428 ; 45 L. T. (N. 
 
 7 Q. B. D. rM ; .00 L. J. (N.S. 
 31(); 20 W. \\. iiOS; 44 L. 'I' 
 ,501 
 
 12 W. i;. 2;!'.i 
 
 17 L. T. (N.S.) 555 
 
 3Sw. 411 
 
 15 Sim. !)5 
 
 25 [;. T. (.\nier.) ;;(t7 
 
 2 \'ern. .'ist; ... ... 
 
 Heav. 1!I2 
 
 1 \cvn. 4,5',) 
 
 1 Ainb. 2S0 I 
 
 2 K(|. ('a. ,\b. 287 
 
 ;;4 Jioav. ;582 
 
 2Atk. 412 
 
 2 Sim. (X.S.) 181) 
 
 8 L. B. Ir. 22(5 
 
 8 Wheaton, 229 
 
 30 Ch. 1). 1(50: 5,-; L. .]. (N.S.) Ch. 44; 
 3;'. W. B. 744; 53 L. T. (N.S.) 145,.. 
 
 31 Beav. 491 
 
 2 Phil. 801 
 
 8 Q.B.I). Ill 
 
 04 : 30 W. B 
 
 7(30 
 
 17 W. II. 65 
 
 (5 Ex. 725 ; 2 L. M. & P. 4(30 ; 21 B 
 
 Ex. 200 
 
 46 L. ,]. (X.S.) Bkcy. 114; 25 W. 
 
 (i86; 36 B. T. (N.S.) 805 ... 
 
 1 Stark. 319 
 
 4 East, 207 ; 1 Eden, 2nd cd. 62, n. 
 
 13 Moo. P. C. 432 
 
 2 Vern. .326 
 
 L. B. 1 C. P. 523; 35 B. .1. (X.S.) C 
 
 241; 14 W. B. 609: 14 B. T. (X 
 
 286 
 
 3B. &Ad. 362 
 
 3 Drew. 71(; 
 
 7 CI. & F. 1 
 
 54 B. J. (X.S.) q. B. 15 
 
 F. Moo. 757 .. 
 
 Wille.s, 11 
 
 1 L. I!. B-. 54 
 
 2 Buss. & My. 75 
 
 53 L. T. (X.S.) 5 I 
 
 1 Ball &B. 444 
 
 7 Yes. 88 
 
 W.X. (1876)47 
 
 4 Ex. 478 ; 19 L. .T. Ex. 113 
 
 3 Burr. 1637; 1 Funbl. ¥a\. 342, n. ... 
 
 24 Ch. 1). 597; 31 W. B. 884; 14 f 
 B. T. (X.S.) 156 I 
 
 15 (I B. D. 619; .54 L. J. (X.S.) Q. B. 
 
 525; 33 W. B. 748 
 
 3Atk. 581 
 
 1 M. & W. 714 
 
 5 E. & B. 367; 3 C. L. K. 12(.)9; 24 
 L. J. g. B. 705; 1 Jur. ^X.S.) 851 ... 
 
 Page. 
 
 P. 
 
 .S.) 
 
 151, I.-,6 
 
 4 nil 
 
 477 
 
 47(i 
 
 413, 4.38 
 
 54, 77, 520 
 
 .301 
 
 4.S3 
 
 70 
 
 191,207,219,266, 
 
 3(59 
 
 459 
 
 495, 504 
 
 .395 
 
 16H, 417 
 
 17 
 
 54 
 
 282, 305, 309 
 
 495, 496, 499 
 
 469 
 
 l.")7 
 
 78 
 
 175 
 
 IIS 
 
 71, I (■■9 
 
 ;')77 
 
 4f;i, .170 
 
 191, 220, 513 
 
 19, l.-)9 
 
 37, 42, 47, 69 
 
 19, 69 
 
 28(3, 289 
 
 • 149 
 237 
 383 
 345, 355, 356, 360 
 
 110 
 
 406,430,439,440, 
 
 443 
 
 514 
 
 18 
 
 .551 
 
 11.!, 407 
 
 101 
 
 191,192,24.-), 2.<?.'), 
 
 292, 294, 295, 359, 
 
 367, 530 
 
 139 
 
 24, 33 
 
 12 
 
 107, 406, 408, 435
 
 Ix 
 
 TABLE OF CASES. 
 
 Xamks of Cases. 
 
 Where Ueporteu. 
 
 .Simmonds r. Kiniiaird i 4 Ves. 735 
 
 — r. Palles .. 
 Simmons r. Edwards 
 
 — r. Simmons 
 Sims V. Thomas... 
 
 — r. Tuffs ... . 
 
 Skarf i: Soulby ... . 
 
 Sken-att, Kr parte .. 
 Skidmore v. Bradford 
 
 Slack V. Tolson ... 
 Slingsby r. ]5ouUon ., 
 
 Sloane r. Cadogan ., 
 
 Sloper /■. Cottrell 
 
 Slownian /■. Back 
 Smalc r. Bun- 
 
 Smallconib /;. Iiuckin: 
 ham 
 — /'. Cross ., 
 Smartle v. Williams ., 
 Smith v. Ashton 
 
 — r. J'aker 
 
 — V. Battams 
 
 — V. Cannau 
 
 — V. Clierrill 
 
 — 7-. Cheese 
 
 — i: Cuff ... 
 . — v. Dresser 
 
 — r. French 
 
 — c. (iarland 
 
 — r. llurst 
 
 — r. Kay ... 
 
 — V. Keating 
 
 — r. Lync ... 
 
 — r. Matthews 
 
 — /•. .Mogford 
 
 — /•. Jloigan 
 
 — /•. J'ilgrim 
 
 — c. Jiussell 
 
 — V. Salzmann 
 
 — r. Taltou 
 
 — t\ Timms 
 
 — /-.Wall ... 
 
 — /•. ^V'arde 
 
 — V. White... 
 
 — V. Whitlock 
 Sucaiy r. Abdy ... 
 
 1 .lur 
 
 2 J. &Lat. 480 
 
 16M. &AV. 838 
 
 (■) Hare, .3.^2 
 
 r.' A. & K. 536; 4 B. & D. 22;i ; 
 llSl 
 
 Cr. & B. 207 
 
 1 II. &Tw. 42G; 1 M. & (J. 364 
 
 2 Eose, 384 
 
 L. B. 8 Eq. 134; 17 W. B. 1056: 21 
 
 L. T. (N.S.) 291 ' ... 
 
 1 Buss. 553 
 
 1 V. &B. 334 
 
 Sug. Y. & B. 11th cd. app. No. 24 -' 
 
 1 6 E. & B. 407 : 26 B. .1. (,). B. 7 : 2 Jur. 
 
 . (X.S.) 1046 
 
 : 3 B. & Ad. 103 
 
 I L. K.8C. B. 64; 42 L. .7. ('X.S.)C. B. 20; 
 21 W. B. 103 : 27 L. T. (N.S.) 555 ... 
 
 1 Salk. 320: .-> Mod. 375 
 
 1 Bd. Baym. 251 
 
 3 Lev. ,387 
 
 1 Ch. Ca. 264 
 
 1 Atk. 388 
 
 26 L. .T. Ex. 232 
 
 2 E. & B. 35; 22 L. J. Q. B. 201 ; 17 
 Jur. 911 
 
 L. B. 4 Eq. 300: 36 L. .T. (N.S.) Ch.) 
 738 ; 15 W. K. 910 ; 16 L. T. (N.S.) '- 
 517 ) 
 
 1 C. P. 1). 60 ; 45 L. .T. (N.S.) C. B. 156 ; 
 24 W. B. 368 ; 33 L. T. (N.S.) 670 ... 
 
 6 Man. & S. 160 
 
 L. B. 1 Ell. 651 ; 35 L. J. (N.S.) Ch. 
 
 385 
 
 2 Atk. 243 
 
 2 Mcr. 123 
 
 10 Hare, 30 ' 
 
 7 II. L. C. 750 
 
 6 C. B. 136 
 
 2 Y. & C. C. C. 345 ' 
 
 AV. B. 644 
 
 21 W. 1!. 472 
 5C.B. 1).337 
 
 2 Ch. 1). 127; 
 
 3 Taunt. 400 
 9 Ex. 535 ... 
 
 B.VCiE. 
 
 ■Io"'l. .1. (N.S.) '('•'. B.4ro 
 34 B. T. (N.S.) 408 ... 
 
 6L. B. Ir. 32 ' 
 
 7. Jur. (N.S.) 1015 
 
 18 L. t. (N.S.) 182 
 
 15 Sim. 56 ; 15 L. J. Ch. 105 
 
 L. B. 1 Eq. 626 ; .35 L..J. (N.S.) Ch. 454 ; 
 
 14 W. B. 510 ; 14 L. T. (N.S.) 350 ... 
 
 .55 L. J. (N.S.) g. B. 286 
 
 1 E.V. D. 299 ; 45 L. J. (N.S.) Ex. 803; 
 
 34 L. T. (N.S.) 101 ... 
 
 19 
 434 
 340 
 
 384 
 
 17, 18, 23, 33, 170 
 
 464, 470 
 20, 37, 38, 39, 40, 
 45, 47, .50, .02, 515, 
 
 516, 519 
 18 
 
 254 
 
 24,. 33 
 
 170 
 
 204, .304, 40.5,448, 
 
 440, 450, 458 
 
 453 
 
 180 
 
 154 
 
 174 
 174 
 315 
 304, 305 
 307 
 2()7 
 
 04, 05, 252 
 
 30, 41, l\fi, .312, 
 343, 361 
 
 160 
 
 545 
 
 460, 5.")3 
 
 210, 47(i, 512 
 
 .32, 7(;, 111, 320, 
 
 433, 434, 435, 531 
 
 485, 487, 504 
 
 434 
 
 425, 44.5, 459, 475, 
 
 476 
 
 443 
 
 271, 272, 273, 270 
 
 526 
 
 103 
 
 178, 180 
 
 104 
 
 64, 07, 519, 520, 
 
 ■521 
 
 2.')-2 
 
 152 ■ 
 437, 441 
 
 460 
 30 
 
 179
 
 TABLE OF CASES. 
 
 Ixi 
 
 X.VMKs OP Cases. 
 
 Whkue Rkported. 
 
 Sneed v. Snced 
 
 Snell /'. lloigliton 
 
 Snow /'. Hole 
 
 Sontliani, h'.r jtarlt; ... 
 
 Smith Wales Atlantic [ 
 
 Steamship C'o., In re] 
 
 Sowerby /'. Warder ... 
 
 Spaekman r. Timbrell 
 
 Sparkes v. Bell 
 
 Sparrow, Ex parte ... 
 Speneer c. Slater 
 
 Spicer V. Spicer 
 
 Spirett IK Willows 
 
 Spooner o. Sandilands 
 Spratley v. Wilson ... 
 Spurgeon v. Collier ... 
 Spurret /'. Spiller 
 Spurrier, Ex parte ... 
 Stackpoolc V. Stack- 
 
 poole 
 
 Stacpole V. l»eaumont 
 
 Stamford's Case 
 
 Standen c. Bullock .. 
 Standing v. Bowring ... 
 
 Stanes v. Stanes 
 
 Stanfield v. Miller .. 
 Stanford, Ex i^arte .. 
 
 Stansfield v. Cubitt ... 
 
 Stanton v. Hatfield ... 
 Stapilton ?'. Stapilton... 
 Staplehill r. J5ally ... 
 Stapleton v. Stapleton 
 
 Stead V. Nelson 
 
 Steel r. Brown 
 
 Steele v. Waller 
 Stent V. Bailis 
 
 Stephens v. Olive 
 
 — V. Trueman... 
 
 Stephenson v. Hayward 
 Stepney v. Biddnlph ... 
 Sterry v. Arden 
 Stevens, Ex parte 
 
 Stevenson v. Newnham 
 Steward v. Ijombe 
 Stewart w. Moody 
 Stilenian v. Aslidown 
 Stiles V. Attorney- ) 
 
 General j 
 
 Stilwell V. Mellersh ... 
 Stockley y. Stockley ... 
 
 1 Amb. 04 
 
 1 ('. & E. 9."i 
 
 L. \l. 17 Kq. r.7.s';"4:5 !..!/. (N.S.) Bkcy. 
 
 :J'.) ; •>■>. W. i{. 4-)6 ; ?,0 \.. 'W 132 ... 
 •1 Ch. D. 7(3;J ; 40 I.. J. (N.S.) Ch. 177 ; 
 
 .35 L. T. (N.S.) 294 
 
 2 (!ox, 208 
 
 8 Sim. 25;] 
 
 8 B. & C. 1 ; 2 M. & 11. 124 
 
 2 l)e(r. M. &(;. 907 
 
 4 Q. B. 1). 13 : 48 1.. J. (N.S.) Ch. 480 ; 1 
 
 27 W. R. 134 ; 39 L. T. (N.S.) 424 j" 
 
 24 Beav. 305 
 
 f 
 
 Page. 
 
 3 D. .T. & S. 293 ; 11 .Tur. (N.S.) 70 
 34L. J. Ch. 305 i 
 
 1 Y. & C. C. C. 39i) 
 
 V. Holt, 10 
 
 1 Eden, 55 
 
 1 Atk. 105 
 
 Mont. 240 
 
 4 1). &AVar. 320 { 
 
 3 Ves. 89 
 
 2 I.eon. 223 
 
 3 Bep. 82 b 
 
 31 Ch. D. 282 ; .55 L. .T. (N.S.) Ch. 218 ; 
 
 34 W. H. 204 ; 54 L. T. (N.S.) 197 ... 
 3 P. D. 42 ; 47 L. J. (N.S.) P. 19 ; 20 
 
 W. R. 238: 39 L. T. (X.S.) 40 
 
 App. No. VIll 
 
 17 Q. B. D. 259; 53 L. J. (N.S.) Q. P.. 
 
 341 ; 34 W. R. 501 ; 54 L. T. (N.S.) 
 
 894 
 
 2 De G. & J. 222 ; 27 L. J. (N.S.) Ch. 
 
 200 
 
 1 Keen, 358 
 
 1 Atk. 2 
 
 Prec. Ch. 224 
 
 14 Sim. ISO 
 
 2 Beav. 245 
 
 1 Taunt. 381 
 
 28 Beav. 400 
 
 2 P. Wms. 220; 3 Bl. Com. 437 
 
 2 Bro. C. C. 90 -' 
 
 1 Ves. 73 
 
 Prec. Ch. 310 
 
 13W. R. 570 
 
 12 Johns. 530 (Amer.) ... 
 
 L. R. 20 Eq. 780 ; 44 L. .1. (N.S.) Bkcy. 
 130 ; 23 W. R. 908 ; 33 L. T. (N.S.) 
 135 
 
 15 C. B. (N.S.) 297 
 
 1 Brod. & 15.500 
 
 1 C. M. & R. 777 
 
 2 Atk. 481 
 
 2 Atk. 152 I 
 
 20L. J. (N.S.) Ch. 350 
 
 IV. &B. 30 
 
 394, 396 
 147 
 540 
 
 147 
 
 47(1 
 
 531 
 
 333, 334 
 
 20 
 
 135 
 
 32, 41, 72, 87, 89, 
 
 98, 99. i 1 1 
 
 .372 
 
 13, 23, 3,S, 40, 47, 
 
 48, 49, 5U, 53, 7.3, 
 
 299, 300, 521 
 
 412 
 
 407 
 
 •^'75, 370, 383 
 
 104 
 
 '107 
 
 342, 355, 300, .301, 
 
 303, 513 
 
 296 
 
 19 
 
 210, 211 
 
 400, 432 
 
 308 
 389, 410 
 
 138, 140 
 
 154 
 
 547 
 
 192, 274, 270 
 
 344, 301 
 
 440 
 
 390 
 
 171, 181, 182, 404 
 
 391, 427, 438 
 
 .531 
 
 50, 57, 1C)3, 247, 
 
 301 
 
 274, 343, 303, 390 
 
 399, 534 
 
 105 
 22. 209 
 
 154 
 
 325, 320 
 
 114, 123, 124 
 
 ;i4 
 
 05, 00, 07, 87, 98 
 
 192,245,247,249, 
 
 255 
 
 31 
 
 273, 270
 
 Ixil 
 
 TABLE OF CASES. 
 
 XxjtEs OF Casks. 
 
 Stockton IroiiFurnace 1 
 Co., In re ... j 
 Stockwell r. Yeates ... 
 Stokes V. Stokes 
 Stokoe r. Cowan 
 
 Stone V. Civubham 
 
 — V. Lidilenlale ... 
 
 — V. Stone 
 
 Stratford v. Aldborough 
 Strathmore v. Bowes... 
 
 Stratton v. Mnrphy ... 
 Stray, Ex imrte 
 
 Strode v. Russel 
 
 Strong V. Bird 
 
 — V. Strong 
 'S>i\\\)hms, Ex parte ... 
 
 Stulz V. Sclifefle 
 
 Stump I'. Ciaby 
 
 Sturge V. Sturg(! 
 Sturgess v. Claude ... 
 Sturgis V. Champneys 
 Sturtevant v;. Ballard 
 Suffolk r. (iroenvill ... 
 Suggitt's Trusts, la re 
 
 Surcome ?■. Pinniger... 
 
 Sutton r. Bath 
 
 — ?'. Chetwynd ... 
 
 Swansea, The, v. Tbe1 
 
 Condor j 
 
 Swanston v. Lishman 
 Swift V. Pannell 
 
 — V. Swift 
 
 Swire r. Cookson 
 Sykes' Trusts, Jle 
 Sykes v. Bond 
 
 — V. Sykes 
 
 Symes v. Hughes 
 
 S}Tiimons, E.r parte ... 
 
 Symonds r. Ilallett ... 
 
 Syrinot r. Simpson ... 
 
 Tanner r. Byne 
 
 Tanquerayr. Bowles... 
 Tappenden r. Burgess 
 Tarback r. Marbury ... 
 
 Where Rei-orted. 
 
 10 Ch. IX 35G ; 48 L. J. (N.S.) Ch. 417 
 
 27 W. B. 4:53 ; 40 f,. T. (X.S.) 19 .. 
 
 17 \\. 1!. I'S ; ISi L. T. (X.S.) Sl'B .. 
 
 App. Xo. V 
 
 Jur. (X.S.) 901; ! 
 T. 095 
 
 Page. 
 
 29 Beav. G37 
 W. P. 801 ;4 1. 
 
 2 Buls. 225 
 
 2 Anstr. 533 
 
 P. P. 5 Cb. 74 ; 39 L. J. (N.S.) Ch. 
 IC.S; 18 W. P. 385; 22 L. T. (N.S.) 
 359 
 
 1 Ridgw. P. C. 281 
 
 1 Ves. 22 ; 2 Bro. C. C. ,345 ; 2 Cox, 28 ; 
 Bro. P. C. 427 
 
 I. P. 1 Eq. 361 
 
 L. P. 2 Ch. 374; 3G L. J. (N.S.) Bkcy. 
 7 ; 15 W. P. 600 ; 16 L. T. (X.S.) 250 
 
 2 Vern. 621 
 
 P.P. 18 Eq.315; 43 L.J. (X.S.) Cb. 814; 
 
 22 AV. P. 788 ; 30 L. T. (X.S.) 745 ... 
 
 18 Beav. 408 ' 
 
 17 Ch. D. 58; 50 L. J. (X.S.) Ch. 547 ; 
 
 2!) W. P. 653; 44 L. T. (X.S.) 877 ... 
 
 16 Jur. 909 
 
 2 I)e G. M. & G. 623 
 
 12 Beav. 229 
 
 1 Dowl. 505 
 
 5Mv. &Cr. 97 
 
 9 Johns. (X.Y. Pep.) 337 
 
 Xcls. 15 
 
 L. P. 3 Cb. 216; 37 L. J. (X.S.) Ch. 
 426; 16 W. P. 551 
 
 3 I)e G. I\r. & t;. 571 ; 22 L. J. Ch. 419 ; 
 17 Jur. 196 
 
 3 11. &X. 382 
 
 3 Mer. 249 / 
 
 4 P. D. 115 ; 48 L. J. (X.S.) P. & A. 33; 
 27 W. P. 748 ; 40 L. T. (^X.S.) 442 ... 
 
 45 L. T. (X.S.) 360 
 
 24 Cb. I). 210 ; 31 W. P. 543 ; 48 L. T. 
 
 (X.S.) 351 
 
 34 lieav. 266 ; 34 L. J. (N.S.J Ch. 209 ... 
 9 App. Cas. 653 ; 48 L. T. (X.S.) 877 ... 
 
 2J.&}[. 415 
 
 7 Jur. (X.S.I 1024 
 
 L. P. 2 P. &D. 163 
 
 L. P. 9 Eq. 475 ; 39 L. J. (X.S.) Ch. 304 : 
 
 22 L. T. (X.S.) 462 '. 
 
 14 Cb. T). 693 : 28 W. P. 803 ; 42 L. T. 
 
 (X.S.) 106 
 
 24 Ch. 1). 346; 32 W. P. 103 : 49 L. T 
 
 (N.S.) .380 
 
 5H. L. C. 121 
 
 1 Sim. 166... 
 
 L. R. 14 Eq. 151 
 4 East, 230 
 
 2 Vf-rn. 510 
 
 140 
 
 .338 
 
 301, 802 
 
 20, 31, 245 
 
 13, 50, 67,98,114, 
 
 117, 120, 127 
 
 383, 460 
 396 
 
 223 
 
 514 
 
 181 
 394, 395 
 
 389, 425, 431 
 
 56,62,7-8; 84, 214, 
 
 ,245 
 
 96, 102, 104 
 
 497 
 
 505, 506, 531 
 
 481, 495, 496 
 
 180 
 
 292 
 
 120 
 
 oL(9, 375 
 
 300 
 
 372, 373, .379 
 
 158, 160 
 
 342,343,361,389, 
 
 392 
 
 545 
 .''.41 
 
 138, 152, 153 
 
 469 
 
 137, 1.55 
 
 431, 475 
 
 7S 
 342 
 
 472 
 
 151 
 
 281 
 435, 436 
 
 267, 315 
 
 C)^, 184. 464, 524, 
 
 528, 54.5, 548 
 
 181 
 
 .32, 75, 76, in, 
 
 213,214
 
 TABLE OF CASES. 
 
 IXUi 
 
 Names of Cases. 
 
 Where Ueporteh. 
 
 Pacje. 
 
 
 
 
 45, 171, 192, 244, 
 
 Tarlctoii r. T,iildcll ... 
 
 17 Q. B. 3'JO ; 4 De V,. & Sm. o.^.S 
 
 ■ 
 
 245, 264, 26,5, 285, 
 
 315,318,320,329, 
 
 464, 5.'?0, 531 
 
 Tasker ?•. Small 
 
 3My. &Cr. G3 
 
 
 514 
 
 Tiite V. Hilbert 
 
 2 Ves. 120; 4Bro. C. C. 280 ... 
 
 
 407, 410, 430 
 
 — V. Leitliead 
 
 Kay, 658 
 
 
 443, 453 
 
 — i\ Williamson ... 
 
 L. R. 2 Ch. .5-) ; L. 1?. 1 E]. 528... 
 
 
 487, 49.5, .503, 551 
 
 Tatliam v. Vernon ... 
 
 29 Ilcav. 604 
 
 
 390, 391, 412 
 
 Taunton r. Morris ... 
 
 11 Ch. D. 779; 48 L J. (X.S.) Ch. 408; 
 
 
 
 27W. 1!. 718 
 
 
 300 
 
 Taw V. Bury 
 
 Dyer, 1(17 b; 1 Anders. 4 
 
 
 475 
 
 Taylor v. Atkinson ... 
 
 2 Atk. GOO 
 
 
 163 
 
 — V. Beecli 
 
 1 Ves. 297 
 
 
 372, 376, 381) 
 
 — V. Bowers 
 
 1 Q. B. 1). 291 : 4ii L. J. (N.S.) Q. B. 3 
 
 ); 
 
 
 
 24 W. B. 499 ; 34 L. T. (N.S.) 938 
 
 
 472 
 
 — V. Chester 
 
 lOB. &S. 237 
 
 
 469 
 
 
 
 j 
 
 20, 31, 38, 39, 40, 
 
 — r. Coenen 
 
 1 Ch. D. G3G ; 34 L. T. (N.S.) 18 
 
 41, 50, 53, 55, 60, 
 64, 75, 517, 519, 
 
 
 
 526, 528, 546 
 
 — V. Eckersley ... 
 
 5 Ch. D. 740 ; 2.j W. B. 527 ; 3G L. 
 
 r. 
 
 
 
 (N.S.) 442 
 
 
 152 
 
 — V. Johnston ... 
 
 19 Ch. I). G03 ; 51 L. J. (N.S.) T'li. 879 
 
 i" 
 
 484, 485, 486, 494, 
 
 
 30 W. B. 508 ; 4G L. T. (X.S.) 21S 
 
 f 
 
 497, .551, 552 
 19, 40, 41, .50, 56, 
 
 — V. Jone.s 
 
 2 Atk. GOO 
 
 1 
 i 
 
 62, 64, 117, 245, 
 368, 476 
 
 — V. Lendey 
 
 9 East, 49 
 
 
 437 
 
 — r. Stile 
 
 Sng. V. & P. 14th ed. 714 
 
 
 191 
 
 — V. Wheeler ... 
 
 2 Vorn. 5G5 
 
 
 230 
 
 Teasdale v. Braith-_,) 
 
 5 Ch. D. G30 ; 46 L. J. (N.S.) Ch. 725 
 
 T 
 
 284, 285, 289, 294, 
 
 waite... j 
 
 25 W. B. 54G ; 3G L. T. (N.S.) 601 
 
 J 
 
 295, 367 
 
 — V. Teasdale... 
 
 Sel. Ca. Ch. .59 
 
 
 183 
 
 Tempest, Ejc i)arte ... 
 
 L. R. 6 Ch. 70 ; 40 L. J. (N.S.) Bkcy. 22 ; 
 
 
 
 23 L. T. (N.S.) 650 
 
 
 102, 103 
 
 Tench's Trusts, In re 
 
 15L. E. Ir. 406 
 
 
 296 
 
 Tendril v. Smith 
 
 2 Atk. 86 
 
 
 491 
 
 Tennent v. Tennents... 
 
 L. It. 2 H. L. Sc. G 
 
 
 245, 248, 270 
 
 Teynhara r. Mnllins... 
 
 1 Mod. 119 
 
 
 189 
 
 Thackvvell v. (Jardiner 
 
 5 Dc G. & Sm. 58 
 
 
 396 
 
 Theobalds?-. Duffoy... 
 
 9 Mod. 102 
 
 
 447, 450 
 
 Tliomas v. Brennan ... 
 
 15L. .L (N.S.)Ch. 420 
 
 
 477, 478 
 
 — V. Freeman ... 
 
 2 Vern. 563 
 
 
 450 
 
 — V. Thomas ... 
 
 2 G. & D. 226 ; 2 Q. B. 851 ; G .Tnr. 645 
 
 257 
 
 Thompson v. Attfield 
 
 1 Vern. 40 
 
 
 390, 391 
 
 — r. Leach ... 
 
 2 A'ent. 198 
 
 
 40G 
 
 — V. Milligan 
 
 18 L. T. (N.S.) 809 
 
 
 550 
 
 — V. Towne... 
 
 Brec. Ch. 52 
 
 
 31 
 
 
 
 i 
 
 38, 39, 40, 46, 47, 
 
 — V. Webster 
 
 4 Drew. 632 
 
 50, 82, 247, 249, 
 
 
 
 250, 268, 522, 548 
 
 — V. Whitmore 
 
 l.T. &n. 268 
 
 
 393, 482 
 
 Thornber v. Sheard ... 
 
 12 Beav. 589 
 
 
 494, 496, 504 
 
 Thome v. Newman ... 
 
 Finch, 38 
 
 
 466 
 
 — V. Thorne 
 
 1 Vern. 141 
 
 
 213, 467 
 
 Thornhill v. Evans ... 
 
 2 Atk. 330 
 
 
 499 
 
 Thorp r. Browne 
 
 16 L. Ch. Bep. 365 
 
 
 1.57 
 
 — V. Creegen 
 
 55 L J. (xN.S.) y. B. 80 
 
 
 139 
 
 Thorpe v. Macaulay . . . 
 
 5 Mad. 229 
 
 
 539 
 
 — V. Owen 
 
 5 Beav. 224 
 
 
 419, 441 
 
 Throssel i\ Marsh 
 
 53 L. T. (N.S.) 321 
 
 
 158, 1.59 
 
 Thynne v. Glengall ... 
 
 2 n. L. C. 131 
 
 
 375
 
 [XIV 
 
 TABLE OF CASES. 
 
 Names of Cases. 
 
 Ticker r. Smith 
 Ticrney r. Wood 
 'J'oJil r. Stokes ... . 
 
 Tokcr /•. Tokcr ... . 
 
 Toilet *•. Toilet ... . 
 Toljuitt /•. Wells 
 Tonikin.* r. Saffery , 
 
 Torason c. Judge 
 Tonkins v. Knnis 
 Tope r. Hockin ... 
 Topliam, L'x parte 
 
 — r. Duke of 
 
 rortland 
 
 Towuend v. Toker 
 
 Townsend i-. Westa- ) 
 cott J 
 
 Where Keported. 
 
 Page. 
 
 Townshend 
 ham 
 
 Wind- 
 
 TrencharJ r. Wanley 
 'i'revelyan r. White ... 
 'iiimmer r. Danby ... 
 'i'roughton r. Trough- 
 ton 
 
 'JVousdale v. Sheppard 
 
 Trowell v. Shenton ... 
 
 Trye r. Corporation of 
 
 (lloucester 
 
 'i'ucker r. Finlayson ... 
 
 'I 'u<lor r. Anson 
 
 Tufnell V. Constable ... 
 Turbervill /•. Tipper... 
 Turnbul! r. Fornian ... 
 Turner's Estate, In re 
 
 'J'urner r. Collins 
 
 — /•. Hardcastlc... 
 
 — '/•. Vaughan ... 
 Tiirnley w. Hooper ... 
 Turijuand, E.c jjurte... 
 
 — r. Knight... 
 Tiirvil /'. Tipper 
 Tnton r. Sanoner 
 
 Twcddle '•. Atkinson... 
 
 Twync's Case 
 
 3 Sm. & (liff. 42 
 
 I'.i l?oav. \v:a) 
 
 1 Ld. Kaym. 444: Salk. UC 
 
 ■:, D. .1. .^ S. 487; .'il r.eav. O'.Mi 
 
 •2 P. Wnis. 480; Mos. 4('> 
 
 1 M. & S. 305 
 
 :j App. Cas. 21.']: 47 L. .T. (X.S.) Bkcy. 
 
 1 1 : 2G \V. i;. (V.' : ;J7 L. T. (N.S.) 758 ... 
 .'} Drew. 314 
 
 1 Eq. Ca. Ab. 334 
 
 7 B. &(". 101; 1 L. T. (N.S.) 449 
 
 L. P. 8 ("h. G14; 42 L. .T. (N S.) Bkcy. 
 
 ■u ; 21 AV. P. C55 ; 28 E. T. (N.S.) 7iG 
 32 L. J. (N.S.) C\\. TdI : 11 W. P. 507 ; 
 
 BE. T. (X.S.) 180: 1 N. P. 40t! 
 E. P. 1 Ch. 440; 35 L. J. (N.S.) Ch. ) 
 
 608; 12 .Tur. (N.S.) 477; 14 W. P. - 
 
 800; 14 E. T. (N.S.) 531 ... j 
 
 4 Beav. 58 ; 2 Beav. 340 •[ 
 
 2 Yes. 1 
 
 2 P. Wms. 107 
 
 1 Beav. 588 
 
 25 L. J. (X.S.) Ch. 424 
 
 3 Atk. 650 
 
 14 1r. ('. L. P. 370 
 
 8Ch. D. 318; 47 E. .T. (X.S.) C'h. 738 : 
 20 W. i!. 837 ; 38 E. T. (N.S.) 300 
 
 14 Beav. 173 
 
 24 W, P. .570 
 
 2 Vcs. 582 
 
 8 Sim. 00 
 
 Palm. 415, n 
 
 15 0. B. D. 2.34 
 
 AV. N. (1884) lyi 
 
 E. P. 7 Ch. 320 ; 41 E .T. (X.S.) Ch. 5.58 
 20 AV. P. 305; 25 E. T. (N.S.) 779.. 
 
 11 C. B. (N.S.) 083 ; 31 E. .1. (N.S.) C. P 
 
 103 
 
 2AVil.s. .339 
 
 2 .Jur. (N.S.) 1081 
 
 14 Q. B. D. 63C) ; 54 E. .T. ( X.S.) (.). B. 242 : 
 
 :;;!AV. It. 437; 53 E T. (X.S.) 570 ...' 
 
 14 Sim. 643 
 
 Latch, 222 
 
 3 Jl. & N. 280: 27 L. .T. Kx. 2113 ; 4 Jur. 
 (-N-^^-)-05 
 
 1 B. I't S. 303 ; 30 E. J. (X.S.) <,>. P,. 205 
 
 3 Rep. 81 1) 
 
 51 
 
 443, 446 
 
 302 
 
 405,401,400,5(10, 
 
 501, .552 
 
 394, 396 
 
 106, 109, 110 
 
 95, 102 
 
 493, 503 
 
 188, 193 
 
 181 
 
 102, 103 
 
 460 
 192,207,208,210, 
 247, 254, 256, 270, 
 466, 514, 532, .550 
 30, 45, 47, 52, 515, 
 
 516, 517, 545 
 
 5, 15, 19, 31, 33, 
 
 36, 37,45, 50, 63, 
 
 64, 65, 77, 191, 
 
 103, 217, 332 
 
 230 
 
 209 
 
 408 
 
 31 
 
 160 
 
 5, 187. 191, 195, 
 
 106,221,223,257, 
 
 370,371,372,381, 
 
 382 
 
 206 
 
 152 
 394, 305 
 
 455 
 
 62 
 
 .304 
 
 546 
 
 481,486,488,489, 
 
 406,497,506,507, 
 
 508, 540, 552 
 
 181 
 312 
 
 47 
 
 148, 155 
 
 545 
 71, 171 
 
 159 
 245, 365, 392 
 4,6, 18,23,36,39, 
 5(;, 84, 86, 05,07 
 00, 100, 113, ii<; 
 117,118,110, 122 
 124, 127, 130,1.32 
 KiO, 178, 101,104 
 204,211,245,246 
 252
 
 TABLE OF CASES. 
 
 [XV 
 
 Names of Cases. 
 
 Tyler v. Duke of Leeds 
 T}TC r. Lyttlctou 
 
 Ulmer v. Hills 
 
 Uiidcnvood c. llitch- 
 
 cox 
 
 Ungley w. Ungley ... 
 
 Uuiiicke v. Giles 
 Union Bank r.Lcnau- | 
 
 loa ) 
 
 U.S. of America v. Con- 
 yngham ... 
 
 — r. J loco 
 
 — r. M'Crae ... 
 
 Upton V. Basset 
 
 Vallence, Ex parte ... 
 Vandenherg v. Palmer 
 Vane r. Fletcher 
 
 — V. Kigdeu 
 
 Vausittart v. Vansittart 
 
 Vauxhall Bridge Co. v. 
 
 Earl Spencer 
 
 Veal 0. Veal 
 
 Verney's Case 
 
 Vernon v. Cooke 
 
 — V. Vernon 
 
 — V. Yaklen 
 Verplank v. Sterry ... 
 
 Villers v. Beaumont ... 
 Voisey, Ex imrte 
 
 Vorley v. Cooke 
 
 Voyle 0. Hughes 
 
 Wakefield v. Gibbon ... 
 
 Waker v. Snowe 
 Waldy 0. Gray 
 
 Wale v. Coramissrs. of 
 
 Inland Revenue 
 Walford c. Gray 
 
 W^alhampton Estate, ) 
 In re J 
 
 Walker v. Bradford ] 
 Old Bank ) 
 
 — v. Bunows ... 
 
 — V. Perkins 
 
 — T. Smith 
 
 Wall^U'ockrell 
 
 Wallingford v. Mutual I 
 
 Society J 
 
 WlIERK RePORTKU. 
 
 2 Stark. 218 
 
 •1 Browiil. IHll 
 
 8 Grecnl. (Maine) ;]■-'() 
 
 1 Ves. 280 
 
 5 Ch. I). 887 : 10 L. J. (N.S.) Ch. 854 ; 
 
 2-) W. 1!. 7:5;! ; :!7 L. T. (N.S.) 52 ... 
 
 2 .Moll. 2C>S 
 
 ?> C. P. I). 24;i; 47 L. J. (N.S.) C. P. 
 
 4(J9; 38 Fi. T. (.\.S.) 098 
 
 ;» Dallas (U.S.), IJaH ; Wallace, C. C. 178 
 
 ;; Cranch (U.S.), 73 
 
 L. It. ;'. ( 'h. 8.-? ; :58 L. J. (N.S.) Ch. 40G ; 
 17 W. li. 7G4 ; 20 L. T. (N.S.) 470 ... 
 
 Cro. Eliz. 445 
 
 2 Deac. Bkcy. 354 
 
 4 K. &.I. 204 
 
 1 P. Wms. 352 
 
 L. P. 5 Ch. 0G3; 39 L. J. (N.S.) Ch. 
 7U7; 18 W. li. 1092 
 
 2 De G. & .T. 249 ; 27 L. J. Ch. 290 ; 
 4 .Jur. (N.S.) 519 
 
 2 Mad. 350 
 
 27 Bcav. 303; 29 L. J. (N.S.) Ch. 321... 
 
 2 Dyer, 245 b 
 
 49 L. .T. (N.S.) C. P. 707 
 
 1 Pro. P. C. 207 
 
 App. No. VI 
 
 12 .Johns. (Amer.) 530 ; 1 Story, Eq. .Jur. 
 12th ed. 355 
 
 1 Vern. 100 
 
 21 Ch. D. 442 ; 52 L. .1. (N.S.) Ch. 121 ; 
 
 31 AV. 1;. 19 ; 47 L. T. (N.S.) 302 ... 
 
 1 Gitr. 230 
 
 2Sai.&Gifi:29 
 
 1 Gill. 401 I 
 
 Palm. 3.59 
 
 L. II. 20 Eq. 2.-58; 44 L. J. (N.S.) Ch. 
 394 ; 23 W. II. 076 ; 32 L. T. (N.S.) 
 531 
 
 4 Ex. D. 270 ; 48 L. .1. (N.S.) Ex. 574 ; 
 27 W. I!. 910; 41 L. T. (N.S.) 105... 
 
 13 W. P. 701 ; 11 .Jm-. (N.S.) 473 
 
 26 Ch. D. 391 ; 53 L. .J. (N.S.) Ch. 802 ; ( 
 
 32 W. I!. 874 ; 51 L. T. (N.S.) 280 1 
 
 12 Q. B. D. 511 ; 53 L. .1. (N.S.) Q. B. 
 280; 32 W. P. 597 
 
 I Atk. 93 
 
 3 Burr. 1508 
 
 29 Beav. :;94 
 
 7 .Iiir. (.N.S.) 29 ; .Tur. (.N'.S.) 768 ... 
 
 5 App. Ciis. 085; 50 L. .J. (N.S.) Q. B. 
 49 ; 29 W. P, 81 ; 43 L. T. (N.S.) 258 
 
 Page. 
 
 175 
 
 77, 210 
 
 120 
 
 21, 191, 201 
 
 .373 
 474, 475 
 
 149 
 
 12(1 
 120 
 
 5;;9 
 
 6, 79, 188, 191, 
 204, 218, 220, 317 
 
 17 
 
 420, 437, 441 
 
 395 
 
 107, 108, 109 
 
 281, 301 
 
 469 
 
 410 
 
 34 
 
 155 
 
 390, 399, 534 
 
 438, 476 
 
 54 
 446, 401, 470, 485 
 
 140 
 
 531 
 
 400, 450 
 
 32, 79, 93, 247, 
 
 263, 535, 549 
 
 192 
 
 198 
 
 155 
 
 369 
 208, 209, 254, 40.',, 
 445, 451, 4(56, 407, 
 
 529 
 
 411, 412 
 
 13, 14, 37, 46, 50, 
 
 63, 70, 190, 233, 
 
 244, 519 
 
 469 
 
 497 
 
 181 
 
 533
 
 LXVi 
 
 TABLE OF CASES. 
 
 Namks or Cases. 
 
 Wallis, In re ... . 
 
 — 11. Biddick 
 
 — V. Smith ... . 
 Walrond o. Goldmann. 
 
 — i\ Walvoiul . 
 Walsh V. Wason... . 
 
 Wahvyii v. Coiitts 
 Wankfoid c. Fotlierley 
 Waiburton v. Lovcland 
 
 Ward V. Aiidltuid 
 — i\ Booth 
 
 — V. Lant ... 
 
 — V Shallet... 
 
 — V. Turner . . . 
 
 — 0. Yates ... 
 
 Warden v. Jones 
 
 Ware v, Gardner 
 
 Warmoll v. Yonng 
 ^\'arrcnder r. Warren- 
 
 der 
 
 Warriner v. Borers ... 
 
 Wash r. Medley 
 
 AVaterhouse ?;. .Jamesou 
 Waters v. Thorn 
 Watkins, Ex parte 
 
 — V. Birch 
 
 — V. Stcevens 
 Watson, Ex parte 
 
 — V. Parker 
 Watt V. Grove ... 
 
 — V. Watt ... 
 Watts V. Brooks... 
 
 — V. BuUas ... 
 
 — 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. AVebster 
 
 Where EErouTED. 
 
 14 Q. B. D. 950 
 
 22 W. B. 1 
 
 W. N. (1882) 77 
 
 16 Q. B. L). 121 ; 55 L. J. (N.S.) Q. B. .323 ; 
 34 W. B. 272 ; 53 L. T. (N.S.) 9G3 ... 
 
 Johns. 18; 28 L. J. (N.S.) Ch. !I7 
 
 L. B. 8 Ch. 432 ; 42 L. J. (N.S.) Ch. 
 67G; 21 W. B. 554; 28 L. T. (N.S.) 
 457 
 
 3 Mer. 707; 3 Sim. 14 
 
 2 Vern. 322 ; Freem. Ch. 201 
 
 2 Dow. &C1. 487 ■' 
 
 IG ]\r. & W. 870 -' 
 
 L. B. 14 Eq. 105; 41 L. J. (N.S.) Ch. 
 729; 20 W. B. 880; 27 L. T. (N.S.) 
 364 
 
 Prec. Ch. 182 
 
 2 Ves. 17 
 
 2 Vcs. 442 
 
 1 Dr. & Sm. 80 
 
 2 De G. & .1. 76; 27 L. J. Ch. 100; ( 
 4Jur. (N.S.)269 ^ 
 
 L. R. 7 Eq. 317 ; 38 L. J. (N.S.) Ch. ) 
 348 ; 17 W. B. 439 ; 20 L. T. (N.S.) - 
 71 J 
 
 5 B. & Cr. GGO ; 8 D. & B. 442 
 
 2 (1 & F. ."j27 
 
 L. B.IG Kq. 340; 42 L. J. (N.S.) Ch.] 
 581 ; 21 W. B. 766 ; 28 L. T. (N.S.) 
 863 j 
 
 1 Dana (Kentucky), 2G9 
 
 L. B. 2 H. L. So. 29 
 
 22 Bcav. 547 
 
 L. B. 8 Ch. 520 ; 42 L. J. (N.S.) Bkcy. 
 
 50 ; 21 W. B. 530 ; 28 L. T. (N.S.) 793 
 
 4 Taunt. 823 
 
 Nels. 160 "I 
 
 5 Ch. D. 35; 46 L. J. (N.S.) Bkcv. 97 ; 
 25 W. B. 489 ; 37 L. T. (N.S.) 75 ... 
 
 GBeav. 283 
 
 2 Sch. & Lef. 501 
 
 3 Ves. 244 
 
 3 Ves. 612 
 
 IP. Wms. 60 
 
 3 E. & B. 743; 2 C. L. B. 1.5.53; 23 
 
 L. J. Q. B. 345; 1 Jur. (.N.S.) 133 ... 
 
 2 P. Wms. .364 
 
 24W. R.623 
 
 2 De G. J. & S. 365; 10 Jur. (N.S.)| 
 836 / 
 
 17 Beav. 2.52 
 
 3 C. B. (N.S.) 300 
 
 5 Ex. D. 23; 49 L. J. (N.S.) Ex. 250; 
 
 28 W. B. 336 ; 41 L. T. (N.S.) 715 ... 
 
 4 I'm). P. C. 170 
 
 22 Ch. D. 136; 31 W. !;. Ill 
 
 4 De G. M. & G. 437 ; 22 L. J. Ch. 857 ; 
 
 iSm. &Giff. 489 
 
 Page. 
 
 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, 3()1 
 
 13, 23, 299, 365, 
 
 369, 372, 373, 380, 
 
 382, 386 
 
 14, 50, 52, 57, 64, 
 
 ijij, 70, 75, 170, 
 
 521, .522 
 
 174 
 
 .",01 
 403, 404,414,416, 
 418, 420, 439, 440, 
 
 441 
 
 120 
 
 525 
 
 506 
 
 129 
 
 114, 1.33 
 
 191, 192, 193, 196, 
 
 --"1 """" 
 
 148 
 
 67, 1G8, 308, 400 
 
 26G 
 
 395, 396 
 
 470 
 394, 395 
 
 226, 227 
 
 70 
 
 .383, 512 
 
 452, 453, 458, 459, 
 
 472, 475 
 
 420, 430 
 
 123, 125, 252 
 
 541 
 
 199, 332 
 
 160 
 
 313
 
 TABLE OF CASES. 
 
 Ixvil 
 
 Namks 01' Cases. 
 
 Weeks v. Maillardet , 
 'W'eisc v. \\'anlle 
 'W'cklon /'. A\'inb^lo\v 
 
 Welles V. ^liddleton ... 
 Wellesley r. Wellesley 
 
 Welnian v. Welman ... 
 
 West V. Skip 
 
 — ?'. A\'est 
 
 Westlniry v. Clapp ... 
 Wcstby r. Westby ... 
 Wcstmeath v. Salisbury 
 
 — V. West- f 
 
 iiicatli i 
 
 Whaley v. Norton 
 
 Wheatley i\ Purr 
 
 Wheeler v. Caryl 
 AVhitaker, J a re 
 
 — V. Wisbcy... 
 
 Whitbread v. Smith ... 
 White V. Drake 
 
 — V. Garden 
 
 — V. Hussey 
 
 — V. Morris 
 
 — V. Sansom 
 
 — V. Small 
 
 — V. Stringer 
 
 — V. Thornhorough 
 
 — r. W^hitc 
 
 — V. Witt 
 
 Whitehead, Exxxirtc 
 
 Whittington v. Jen- 
 nings 
 
 Whitworth v. Gaugain 
 Whyte r. Meade 
 
 Wich r. I^arkcr 
 
 Wiggins V. Armstrong 
 
 Wilcocks V. Ilannyng- 
 
 ton 
 
 — r. AVatson ... 
 Wilding V. llichards ... 
 AVilkes v. Holmes 
 Wilkinson, Exparte... 
 
 — V. Brayfield 
 
 — V. Joughin 
 
 — r. Oliveira 
 
 — V. Wilkin- 
 
 son 
 
 WlIKKE ReI'OHTKI). 
 
 14 East, 568 
 
 L. K. 1!» Eq. 171 ; •-':] W. 1{. L'OH 
 
 13 Q. ]{. II. 7St; r.;! L. J. (N.S.) Q. U. 
 
 ry_'S; :i;! w. l{. -JUt ; -a l. T. (N.S.) 
 
 (M.'J 
 
 1 Cox, 119 
 
 10 Sim. 270; 4 My. & Cr. 5(il ; U L. J. 
 
 (N.S.) Ch. 21 
 
 15 Ch. 1). 570; 49 L. J. (N.S.) Ch. 73G; 
 4;] L. T. (X.S.) 145 
 
 1 Ves. 239 
 
 9 L. W. Ir. 121 
 
 12 W. K.oll ; 3 N. i;. G33 
 
 2 Dr. & War. 519 
 
 5 Bli. (N.S.) 339 
 
 Jac. 120; 5 151i. (N.S.) 339; 1 Dow. & 
 
 CI. 519 
 
 1 Vern. 483 
 
 1 Keen, 551 
 
 1 Amb. 121 
 
 21 Ch. D. G57 ; 51 L. J. (N.S.) Ch. 737 ; 
 30 W. E. 787 ; 4G L. T. (N.S.) 802 ... 
 
 12 ( ;. Vk (N.S.) 44 ; 21 L. J. (N.S.) C. P. 
 IIG; IGJnr. (N.S.) 411 
 
 3 De (J. M. & G. 727 
 
 3 Kcb. G 
 
 10 C. B. (N.S.) 919 ; 20 L. J. C. P. IGG; 
 15Jur. G30 
 
 Prec. Ch. 13 
 
 11 C. B. (N.S.) 1015; 21 L. J. C. P. 
 185; IG.Tur. 500 
 
 3Atk. 411 I 
 
 2Ch. Ca. 103 
 
 2 Lev. lOG I 
 
 Prec. Ch. 425 
 
 L. P. 15 Eq. 247; 42 L. J. (N.S.) Ch. 
 
 288; 27 L. T. (N.S.) 752 
 
 5 Ch. D. 589 ; 4G L. J. (N.S.) Ch. 5G0; ) 
 
 25 W. P. 435; 37 L. T. (N.S.) 110 )' 
 
 14 Q. B. D. 419; 54 L. J. (N.S.) Q. B. 
 240; 33 W. E. 471 ; 52 h. T. (N.S.) 
 597 
 
 G Sim. 493 
 
 3 ilaro, 41G 
 
 2 Ir. Eq. Pep. 420 
 
 22 P>eav. 59 
 
 2 Johns. Ch. Ca. 144 
 
 5 Ir. Ch. Pep. .38 
 
 1 Cro. Eliz. 405 
 
 1 Coll. G55 
 
 9 xMod. 485 
 
 22 (Jh. D. 788 ; 52 L. J. (N.S.) Ch. G57 ; 
 
 31 W. P. G49 ; 48 L. T. (N.S.) 495 ... 
 
 2 Vern. 307 
 
 L. P. 2 Eq. 819; 12 Jur. (N.S.) 330; 
 
 14 L. T. (N.S.) 394 
 
 1 B. N. C. 490 
 
 1 Y. & C. C. C. 057 ; G Jur. (N.S.) 921 
 
 Paoe. 
 
 340 
 
 304 
 483, 493 
 
 304 
 
 481 
 
 171, 174, 178 
 
 417. 441 
 
 391 
 253, 274, 311 
 
 313 
 
 301, 312, 313, 409 
 
 4G9 
 425,438,441,445, 
 
 449 
 250, 297, 332, 3G5 
 
 409 
 
 170 
 
 284 
 
 371,535 
 
 315 
 191,531 
 
 171, 172, 173, 4G4 
 
 31, G2, 191, 532, 
 
 54G 
 
 483 
 
 193, 190,343, 35G, 
 
 302, 534 
 
 221 
 
 482 
 
 38, 40, 4G, 50, 51, 
 
 Gl, 108, 522 
 
 382, 384 
 
 19, 31, 01 
 220, 22S 
 
 495 
 
 539 
 
 527 
 
 438, 44G 
 
 70 
 
 435 
 
 394, 39G 
 
 95 
 474 
 
 463 
 253 
 
 4G8
 
 Lxviii 
 
 TABLE OF CASES. 
 
 Names ok Cases. 
 
 Where Keported. 
 
 Page. 
 
 Willan V. Willan 
 AVillats r. Busby 
 Williams, Ex parte 
 
 — Ex iHirtc 
 
 — 1)1 re ... 
 
 — V. Bayley 
 
 V. Everitt ... 
 V. Fowler ... 
 V. Gonde ... 
 V. Kershaw 
 V. Mercier... 
 
 — V. Williams 
 
 — ?■. Williams 
 Williamson r. Codring- 
 
 ton 
 
 Willyams v. BuUraore 
 AVilmott /'. Barber ... 
 y\"\[&ou, Ex pufte 
 
 — V. Kirkwood... 
 
 — V. Metcalfe ... 
 
 — r. Muskett ... 
 
 — '■. Ivay 
 
 — • r. Wilson ... 
 
 AVimbish r. Tailboys... 
 
 Wind 17. .lekyl 
 
 AVingfield, Ex ]}arte ... 
 
 Wingrove r. Wingrove 
 W'miav, Ex parte 
 
 — V. Winter ... 
 
 Wise's Case 
 
 Wiseman's Case 
 AViseman v. Barnard... 
 
 — V. Roper ... 
 Witham v. Bland 
 Witherden r. .Jumper 
 AVolfe, Ex parte 
 
 Wollaston v. Triije ... 
 
 Wolverhampton, &c., 
 Banking Co. v. Mar- 
 ston 
 
 Wood, Jn re 
 
 — V. Abrey 
 
 — V. Bowrou 
 
 — V. Dixie 
 
 — V. Downes 
 
 — r. Irwin 
 
 Wooderman r. Baldock 
 AN'oodford v. Charnley 
 
 2 Dow, 274 
 
 5 Beav. 193: 12 L. .). (^N.S.) Ch. U)5 ' 
 
 L. R. 10 Eq. 57 ; 39 L. J. (N.S.) Bkcy. 1 ; 
 
 18 W. R. 400 
 
 7 Cb. 1). 138: 47 L. J. (N.S.) Bkcv. 20; 
 
 20 W. K. 274: 37 L. T. (N.S.) 704 ... 
 25 Ch. D. 050; 32 W. R. 187 ; 49 L. T. 
 
 (N.S.) 475 
 
 L. R. 1 H. L. 20U; 35 L. J. (N.S.) Ch. 
 
 717; 12 Jur. (N.S.) 875; 14 L. T. 
 
 (N.S.) 802 
 
 14 East, 582 
 
 Stra. 4U7 
 
 1 Hagg. E. 581 
 
 5 CI. & F. Ill 
 
 10 App. ("a.s. 1; 9 Q. B. D. 337; 51 
 
 L. J. (N.S.) y. B. 594; 30 W. R. 
 
 720 
 
 37 L. J. (N.S.) Ch. 854 ; 18 L. T. (N.S.) 
 
 783 
 
 L. R. 2 Ch. 294 
 
 iVes. 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. 104 
 
 48 L. T. (N.S.) 821 
 
 1 r>cav. 203 : 8 L. J. (N.S.) Ch. 33 ... 
 
 3B. &Ad. 743 
 
 10 A. & E. 82 
 
 5 H. L. 40: 1 H. L. 538 
 
 Plowd. 59 
 
 1 r. Wms. 574 
 
 10 Ch. D. 591; 27 W. R. 340: 40 L. T. 
 
 (N-«-)l^ 
 
 34 W. K. 340 
 
 29 W. R. 575 ; 44 L. T. (N.S.) 323 ... 
 
 9 W. R. 747: 4 L. T. 039 
 
 Sel. Ca. Ch. 40, 8vo ed. p. 128 
 
 2 Rep. 15 
 
 F. Moo. 195 
 
 1 Rep. Ch. 84 
 
 3 Sw. 270, n 
 
 App. No. XI 
 
 45 L. T. (N.S.) 208 ; 44 L. T. (N.S.) 321 
 
 L. R. 9 Eq. 44 ; 18 W. R. 83 ; 21 L. T. ( 
 (N.S.) 449 I 
 
 7 H. &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.) 047 ... 
 
 3 Mad. 417 
 
 L. R. 2 y. B. 21 ; 7 B. & S. 931 ; 30 
 
 L. J. (N.S.) M. C. 5; 15 W. R. 58; 
 
 15 L. T. 207 
 
 7 Q. B. 892; 9 Jur. 790 
 
 18 Ves. 120 
 
 18 Chy. 594; 10 Chy. 398 
 
 8 Taunt. 071 
 
 28 Beav. 90 
 
 248 
 
 202,241, .300,513, 
 
 514, 529, 550 
 
 30 
 
 140 
 
 137, 144 
 
 253, 309, 311 
 437 
 
 108 
 497 
 200 
 
 28 
 
 384 
 
 276, 391 
 
 107, 1 OH, 207,208, 
 
 390, 391, 398, 399, 
 
 400, 400 
 
 409 
 
 545 
 
 127 
 
 139 
 
 19 
 
 314 
 
 1(»4 
 
 307 
 
 4 
 
 450 
 
 128 
 
 480, 497 
 
 141, 142, 145 
 
 4(17 
 
 338 
 
 205 
 
 205 
 
 272, 390 
 
 72 
 
 413 
 
 157, 159, 160 
 
 343, 3.o0, .301,480, 
 
 490, 499, .002, 509, 
 
 534 
 
 108 
 
 95 
 
 248 
 
 469 
 
 72, 99, 100 
 
 494, 500, 509 
 
 78 
 
 123, 120 
 
 412, 429, 457
 
 TABLE OF CASES. 
 
 Ixix 
 
 Namks of Cases. 
 
 WlIlCRE KlCrOKTKl), 
 
 I'AGK. 
 
 Woodgate v. Godfrey 
 
 Woodham r. Baldock 
 AVoodliouse v. Shepley 
 
 \Voo(lie's Case 
 
 Woodman /•. ("liapman 
 AVoodrolJb V. .Tohnston 
 A\'oodward v. Wood- 
 ward 
 
 Wordall i'. Smith 
 
 Won-al V. Jacob 
 
 Worrall I'. Marlow ... 
 
 Worslc}' V. Demattos 
 
 Worthington v. Curtis 
 
 Wright V. Lord Cado- 
 gan 
 
 — V. Moor 
 
 — V. Proud 
 
 — V. Vanderplank 
 
 — V Wright 
 Wrixon r. Cotter 
 Wycheriey v. Wycher- 
 
 ley 
 
 Wyse V. Lambert 
 
 Xenos V. Wickham 
 
 Yates !'. Ashcroft 
 Yglesias i\ Yglesias ... 
 
 Young, Ex parte 
 
 — V. Peachey ... 
 
 — V. Timmins ... 
 
 — V. Waud 
 
 5 Ex. 1). 24 ; 49 L. J. (N.S.) Ex. 1 ; 28 
 
 W. 1?. 88 ; 42 L. T. (N.S.) 34 
 :} iMoo. 11 ; Gow, U 
 
 2 Atk. o4() 
 
 Cro. .lac. I'jS 
 
 1 Camii. 18S 
 
 4 Ir. Cli. Ifcp. ;il<» 
 
 ;5 DoG. J. & S. t;72 
 
 1 Camp. 3:32 
 
 3 Mer. 250 
 
 1 Cox, 153... 
 
 1 Burr. 4G8 
 
 1 Ch. 1). 419; 45 L. J. (N.S.) 
 24 W. R. 221 ; 33 L. T. (N.S 
 
 h. 259; 
 ) 828 ... 
 
 S.)Ch. 
 &.). 1 
 
 2 Eden, 252 
 
 1 l!ep. Ch. 84 
 
 13Ves. 138 
 
 8 De G. M.& G. 133 ; 25 L. J. (N. 
 
 753; 2 Jur. (N.S.) 599; 2 K. 
 
 1 Ves. 409 
 
 1 Pidgw. P. C. 302 
 
 2 Eden, 177 
 
 IG Ir. Ch. Pop. 378 
 
 L. R. 2 H. L. 29G; IG AV. P. 38; IG 
 L. T. (N.S.) 800 
 
 31 W. P. 156 
 
 4 P. i). 71; 27 W. P. 432; 40 L. T. 
 
 (N.S.) 37 
 
 27 W. P. 942 ; 41 L. T. (N.S.) 40 
 
 2 Atk. 254 
 
 1 Tyrw. 22G 
 
 8 Ex. 221; 22 L. J. Ex. 27 
 
 148 
 120, 170, 182, 183 
 409 
 245 
 25 
 252, 441 
 
 281 
 118, 128, 130, 131 
 301,302,304,459, 
 
 482 
 
 300 
 37,94,95,99, 115, 
 117, 100, 221,254 
 
 470 
 
 390, 397 
 401 
 490 
 491, 502, .500, 507, 
 508 
 447 
 50 
 
 274, 270, 389, 505 
 490, 504, 505 
 
 458, 472, 475 
 
 157 
 
 342 
 
 100, 250 
 
 474, 489, 490, 497 
 
 409 
 
 12, 252
 
 TABLE OF STATUTES CITED. 
 
 52 Hen. 3, c. G (W.anlships), ?>-22 
 
 50 Edw. 3, c. 6 (Frautlulent 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, 70, 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, 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, l(},i, 187, 190, 101, 
 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 
 6. 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. 0. 5 (Common Informers), 542 
 39 Eliz. c. 5 (Perpetuating 27 Eliz. c. 4), 20G 
 
 c. 18, 8. 32 : 1 
 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, 320 
 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
 
 Ixxii TABLE OF «TATUTES CITED. 
 
 & 4 Anne, c. 8 (Promissory Notes), 418 
 
 7 Anne, c. 20 (Middlesex Kegistry Aet), 19G 
 9 Geo. 2, c. 3(3 (Mortmain Act), 411' 
 
 9 Geo. 4, 0. 14 (Guarantee of" Promises), s. 5 : 370 
 
 51 Geo. 3, c. 04 (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. 20 : 202 
 s. 27 : 202 
 c. 74 (Fines and Piccoveries), 285, 299 
 s. 77 : 300, 484 
 s. 78 : 484 
 s. 80 : 484 
 c. 105 (Dower Act), 283 
 
 & 7 Will. 1, c. 4 (Irish Bankruptcy), 24 
 
 7 Will. 4 & 1 Vict. c. 20 (Wills Act), ss. 9, 10 : 394 
 
 1 & 2 Vict. c. 110 (.Judgment Act), 19, 22, 55, 80, 279 
 
 s. 11 : 18, 22 
 
 s. 12 : 20, 22 
 
 s. 13: 225,226,227, 234 
 
 s. 14: 227,234 
 
 8. 55 : 25 
 
 s. 56 : 25 
 3 & 4 Vict. c. 105 (Act to Abolish Arrest on Mesne Process in Civil Actions), 220 
 5 & 6 Vict. c. 45 (Copyright Amendment Act), 412 
 c. 100: 412 
 
 8 & 9 Vict. c. 18 (Lands Clauses Consolidation Act), 373 
 
 c. 19: 411 
 
 11 & 12 Vict. c. 43 (Criminal Information Act), s. 36: 542 
 
 12 & 13 Vict. c. 100 (Bankruptcy Act, 1849), 24 
 
 c. 107 (15ankruptcy Act, Ireland), ss. 78, 91 : 24 
 
 10 .S: 17 Vict. c. 137 (Charitable Tnists Act), 200 
 
 17 & 18 Vict. c. :;0 (P.ills of Sale Act, 1854), 130 
 
 c. 55 (Pills of Sale Registration Act, Ireland), 130 
 
 c. 125 (Common Law Procedure Act, 1854), ss. 60 et seq., 24, 33 
 
 18 & 19 Vict. c. Ill (Act to Amend Law of Bills of Lading), s. 1 : 410 
 
 c. 124 ((Jonveyance for Charity), s. 48: 200 
 20 & 21 Vict. c. 57 (Malins' Act), 299 
 22 Vict. c. 32 (Act to Amend the Law concerning the Remission of Pen:dties), 543 
 
 22 & 23 Vict. c. 35 (Trustees' Jlelicf Act), s. 12 : 394 
 
 c. 01 (Divorce Court Act— as to Settlements), s. 5: 342, 512 
 
 23 & 24 Vict. c. 120 (Common Law Procedure Act, 1800), s. 12 : 179 
 
 c. 134 (Charities Act), s. 8: 206 
 
 24 & 25 Vict. c. 134 (Bankruptcy Act, 1801), 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 
 8. 2 : 227 
 8. 4 : 227 
 
 29 & 30 Vict. c. 90 (Bills of Sale Registration Act, 1800, Renewal of), 136 
 
 30 & 31 Vict. c. 142 (County Courts Act, 1807), 545 
 
 c. 144 (Assignment of Life Policies), 411, 453 
 
 31 Vict. c. 4 (Sale of Reversions Act, ISOS), 24.S 
 
 31 cS: 32 Vict. c. 80 (Assignment of Marine Pulicies\ 111, 153
 
 TABLE OF STATUTES CITED. Ixxiii 
 
 32 & 33 Vict. c. 71 (Bankruptcy Act, 1809), 42, 59, GO, 522 
 s. G (1): 12, 94, 9G, 105 
 8. 14: 170 
 s. 15 (4) : 233 
 s. 15 (5) : 129, 135 
 s. 17: 233 
 8. 22 : 233 
 s. 32 : 399 
 8.72: 523 
 
 8. 83 (G), (7), (8) : 233 
 s. 89 : 25 
 
 s. 91 : 42, 43, 44, 51, 57 
 8. 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. 0. GG (Judicature Act, 1873), s. 3 : 532 
 
 s. 4 : 532 
 
 s. 11: 533 
 
 s. 16: 532 
 
 8. 24 : 527, 528, 532 
 
 8. 25 (G): 168,411, 456 
 
 s, 32 : 532 
 
 s. 34 : 482, 532, 533 
 
 37 & 38 Vict. c. 50 (Married Women'8 Property Act, 1870, Amendment Act, 1874), 25 
 
 8. 1 : 28 
 s. 2 : 28 
 8. 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 (G) : 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 
 
 8. 8 : 136, 141, 150, 153, 465 
 
 s. 9: 154 
 
 s. 10: 146, 153, 154, 155, 156 
 
 8. 10 (4) : 465 
 
 s. 11 : 155, 160 
 
 8. 20 : 152 
 
 8. 23: 136 
 
 42 & 43 Vict. c. 50 (Bills of Sale Act, 1879, Ireland), 136 
 
 c. 59 (Civil Procedure Act Itepeal Act, 1879), 542 
 44 Vict. c. 12 (Customs and Inland Kevenue Act, 1881), s 28: 459 
 s. 38 : 459, 502 
 
 44 & 45 Vict. c. 41 (Conveyancing Act, 1881), s. 1 (2) : 424 
 
 8. 50 : 420, 422, 424 
 s. 52 : 3G() 
 
 45 & 46 Vict. c. 39 (Conveyancing Act, 1882), s. G: 36G 
 
 /
 
 Ixxiv TABLE OF STATUTES CITED. 
 
 45 & 4r. Vict, c, 39, s. 8 : 412 
 6. 9 : 412 
 c. 43 (Bills of Sale Act, 1878, Amendment Act, 1882), 114, 127, 137, 14G, 
 161 
 8.2: 137, 152 
 
 8.3: 137, 140, 146, 153, 155 
 8.4: 162 
 8.5: 162 
 8. 6 : 149 
 8. 7 : 140 
 
 B. 8: 138, 140, 141, 152, 154, 465 
 8.9: 138, 140, 146 
 8. 10: 150 
 s. 11 : 160 
 8. 12 : 138, 140 
 8. 13: 138 
 8. 15: 153 
 8. 17 : 102 
 c. 61 (Bills of Exchange Act, 1882), s. 31 : 410 
 s. 31 (2) : 410 
 8. 38 : 410 
 8. 73: 410 
 8. 83: 410 
 8. 84 : 410 
 c. 75 (Married Women's Property Act, 1882), 281, 293, 294, 295, 306, 334, 
 342, 422, 509 
 8. 1 (1): 12, 90, 91, 250, 296, 303, 359, 360, 366, 420, 424, 442 
 8. 1 (2) : 282, 283, 303, 304, 305, 309, 310, 366, 483 
 8. 1 (3) : 303, 309, 483 
 s. 1 (4) : 303, 305, 309, 483 
 8. 1 (5) : 338, 339 
 8. 2 : 12, 29, 90, 91, 223, 250, 295, 296, 338, 339, 359, 360, 366, 
 
 367, 420, 424, 442, 492 
 8. 3 : 284 
 
 8. 5 : 12, 30, 223, 250, 284, 295, 296, 338, 339, 366, 367, 420, 
 424, 442, 492 
 
 8. 10: 21, 128, 483 
 
 8. 13: 28 
 
 8. 14: 31 
 
 8. 19 : 30, 90, 91, 282, 338, 339 
 
 8. 24 : 366 
 
 8. 25: 90, 91, 223, 284, 338, 339, 424, 442, 492 
 46 & 47 Vict. c. 52 (Bankruptcy Act, 1883), 12, 59, 60 
 
 8. 4 : 436 
 
 8. 4 (1) (A) : 12, 94, 105, 233 
 
 8. 4 (1) (C) : 102, 436 
 
 8. 6 : 436 
 
 8. 6 (1) (C) : 96 
 
 8. 18: 105 
 
 8. 19: 105 
 
 8. 40 (4) : 339 
 
 8. 40 (5) : 464 
 
 8. 44 (2), (3) : 128, 135, 233 
 
 8. 47: 12, 42, 43, 44, 92, 250, 460 
 
 8. 48 : 102
 
 TABLE OF STATUTES CITED. IxXV 
 
 •16 & 47 Vict. c. 5'-', s. 41) : 44 
 8. 53 : 25 
 8.56: 170 
 s. 57: 170 
 s. 92 : 522 
 s. 93 : 522 
 s. 168: 17 
 s. 102: 523,524 
 s. 146: 527 
 schedule 5 : 422
 
 ERRATA. 
 
 Page 12, note (n),for " Younrf v. Ward" read " Young v. Wcnid." 
 32, note {v),for " Beese," &c., read " lieese River,'" &c. 
 
 134, note {h),for "In re JenJcinson, 14 Q. B. D.," &c., read"l5 Q. 15. 1)., '&c. 
 139, note {I), for " Crasser v. Zon^ " read " Grosser and Lour/ v. Maxwell." 
 139, note {I), for '^ Ex parte Pearce" read " Jn re Williams." 
 139, note {m),_for ''Little v. Hughes " reo*^? "Hughes v. Little." 
 144, nolo (^•),/o?• " Ex parte " reofZ "/h re." 
 158, note (a), for " Halt on v.," &:c., rear/ " Hatton v.," &c. 
 
 223, note (7), /or " Baiocliffe," &c., reo</ " Jiancliffe," &c. 
 
 224, note {h), for " Shurmur v, CrossfieUl" read " 8]iurmur v. SedgwicJc." 
 241, two lines from bottom, yb?" "devisee'' rertf7 "deviso?'." 
 244, eleven lines from bottom, /or " C'urrie v. iV7;»Z " ?'ea<Z " Carrie v. Ji/s«." 
 252, note {p),for " Younge v. irV/wJ " reorf " loMn</ v. Tr«?<r/." 
 325, note (o),for "post, pt. iv. ch. iii." reo(/ " post, pt. v, ch. iv."
 
 THE LAW 
 
 OF 
 
 tloliintarij iinb ^fraiiiiultnt gisptr.sitions of ^lr0pcrfn 
 
 UNDER 
 
 THE STATUTES OF ELIZABETH. 
 
 PART I. 
 
 THE GENERAL OPERATION OF THE STATUTES OF ELIZABETH 
 AGAINST FRAUDULENT CONVEYANCES AND THE GENERAL 
 DISTINCTIONS BETWEEN THEM. 
 
 The statutes of Elizabeth now in force against fraudulent con- 
 veyances are the 13 Eliz. c, 5 {a), and the 27 Eliz. c. 4 (h). 
 
 The statute 13 Eliz. c. 5, is made for the protection of ere- 13 Eliz. c. 5, 
 
 protects 
 
 ditors. It declares all conveyances and dispositions of property, creditois. 
 real or ijcrsunal, made with the intention of defrauding creditors, 
 to he null and void against them. 
 
 The statute 27 Eliz. c. 4, is made for the protection of 27 Eliz. c. 4, 
 purchasers. It makes void, as against subsequent purchasers of jmicbaKcrs. 
 the same lands, tenements, or other hereditaments, all conveyances, 
 
 (a) See Appendix No. I., where it is or transfers of the debtor's jrooJs or r^'cci.? 
 
 given in full. The statute was con- shall bo void and of no cflect against his 
 
 firmed by 14 Eliz. c. 11, s. 10; made just creditors." Mills' Statute Law of 
 
 perpetual by 29 Eliz. c. 5, SB. 1, 2. Sections Isle of Alan, p. 238. Corktt v. RadcliJ'e, 
 
 5 and 7 are repealed by 26 & 27 Vict. 14 Moore, P. C. 121, 132. 
 c. 125. Other statutes had been pre- (h) See Appendix No. IF., where it is 
 
 viously passed on the same subject — viz., given in full. This statute was made 
 
 ,50 Edw. 3, c. G, 3 Hen. 7, c. 4, against perpetual by 39 Eliz. c. 18, s. 32; from 
 
 fraudulent gifts of goods and chattels. T,y a section 7 to the end of the Act is repealed 
 
 Man.x statute, " all fraudulent assignments by 2G & 27 Vict. c. 125, 
 
 B 
 
 V
 
 2 THE GENERAL OPERATION 
 
 &c., made with the intentiou of defeatmg them, or containing a 
 power of revocation. 
 
 Conveyances There is in each statute a proviso that nothing therein con- 
 prde^ration°arid tiiincd shall extend to defeat any estate or interest made on good 
 bona fiJe are consideration and hond fide to any person not liavincj at the time 
 
 excepted. ^ ■/ j. 
 
 any notice of such fraud (c). 
 
 What property Tlie statute 13 Eliz. c. 5, applies to all kinds of property, real 
 applies to. ^' ^^ personal ; but it does not enlarge the remedies of creditors, or 
 
 subject any property to execution which is not already in law or 
 
 in equity subject to the rights of creditors (d). 
 
 TMiat property The statute 27 Eliz. c. 1, applies only to real property and 
 
 27 Kiiz c 4 
 
 applies to. ' chattels real; it does not include personal property {e). 
 
 Ee-enactedin By the Irish Statute 10 Car. 1, sess. 2, c. o, both these statutes 
 ' are re-enacted for Ireland. 
 
 New York. They have also been substantially re-enacted in Xew York (/), 
 
 with some additional provisions and increased checks upon fraud. 
 The most material provision is as to conveyances intended to defraud 
 purchasers. It provides that " Xo such conveyance or charge shall 
 be deemed fraudulent 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, or 
 person to be benefited by such charge, was privy to the fraud 
 intended " {(j). 
 
 Statutes apply The Statute 13 Eliz. c. 5, is in force in Maine, Xew Hamp- 
 
 ' shire, Massachusetts, Delaware, Pennsylvania, Maryland, South 
 
 Carolina, and Iowa. Tlie various statutes in the other States are 
 
 modelled after it, and in the main are simply a re-enactment 
 
 of it (A). 
 
 The statute 27 Eliz. c. 4, has been adopted in many of the 
 States of America, with some modifications ; although it has 
 received a somewhat different construction (i). 
 
 (c) 13 Eliz. c. 5, s. G ; 27 Eliz. c. 4, s. 4. (</) See post, p. 19G. 
 
 {d) Story, Eq. Jur. 12tli ed. ss. 3G7, (h) Bump. Fr. Conv. (Amer.), 2nd ed. 
 
 3C8 ; Kent, Com. 12th ed. vol. 2, 443 ; 10 ; Story, Eq. Jur. 12tli ed. s. 353. 
 
 post, pp. 17, 18, 21. (i) Story, Eq. Jur. 12tb ed. ss. 427- 
 
 (e) Post, pp. 202 et seq. 434. 
 
 (/) New York Revised Statutes, part 
 2, ch. 7, tits. 1-3, vol. ii. pp. 68, 72.
 
 IH SO. 
 
 OF THE STATUTES OF ELIZABETH. 3 
 
 TliesG two statutes arc in force in Australia, Xcw Zealand, and Australia, 
 Upper Canada (ii). J^>^^ ^■;:''""'J- 
 
 It has been frequently observcnl tliat tlie slal iilc 1 o Eliz. c. 5. was m Eliz. c. r,, 
 merely declaratory of what was iireviously the coinnicn law of tlic •''■c''""<'"y "'' 
 
 ^ "^ I lie couiiuoii 
 
 land (Z). Lord Coke several times (I) comments on the word ^'^^• 
 " declare," which is used in the statute, as shewing that this was 
 the case. Lord ^Mansfield, indeed, said (m) that the ]irinci])les and 
 rules of the common law, as now universally known and under- 
 stood, are so strong against fraud in every shape, that the common 
 law would have attained every object proposed by the statutes 1 3 
 and 27 P:iiz. (n). 
 
 So it was said by the Supreme Court of the United States that 
 the Acts of the 13 and 27 of Eliz. were considered as only 
 declaratory of the principles of the common law (o). 
 
 As to the statute 13 Eliz. c. 5, it may well be doubted whether now far tliis 
 anything more was intended Ijy these expressions, than that " what- 
 ever offends against the order and good morals of society is an 
 offence against the law of England, and punishable at common 
 law " (2)) ; and that " the law abhors covin, and therefore every 
 covinous act shall be void " (fj). T>nt l)e this as it may, the 
 statute in question expressly laid down and more clearly defined 
 tlie law on the subject ; whereas the doctrine of the common 
 law was so general as to be vague and difficult of application. 
 
 As to the statute 27 Eliz. c. 4, the proposition here laid 
 down seems too extensive. The statute, indeed, as it is now 
 construed in favour of subsequent purchasers defeats any volun- 
 tary conveyance, whether fraudulent or not. Judicial decisions 
 in England have even gone so far as to avoid a voluntaiy 
 conveyance in favour of a subsequent purchaser who bought witli 
 full notice of that voluntary conveyance (r). 
 
 (ii) 3 Burge, Col. Law, 644; see Tlie (m) In Cadoganv.Kenneil, Cowp. 434. 
 
 Laws of the Australasian Colonies, by (») See also £f j;ar<e J/«^o?', 34 L. .1 . 
 
 J. D. Wood, 12 et seq. Bkcy. 25. 
 
 (/.) Per Lord Brougham in Richards v. (o) Hamilton v. liussell (Amer.), 1 
 
 Attorney- General, 12 CI. & F. 44; and Cranch, 309; Bump. Fr. Conv. (Amcr.), 
 
 Bee Barton v. Vanheytliuysen, 11 Hare, 2nd ed. 10. 
 
 126, 132 ; Byall v. llolle, 1 Atk. 178. (/>) Lofft, 385. 
 
 (0 Co. Lit. 76 a, 290 b; 3 Hep. (7) 3Com. Dig. p. 295. 
 
 82 b. (r) Post, p. 193. 
 
 B 2
 
 THE GENERAL OPERATION 
 
 Generality In One respect, however, both these statutes were moahled in 
 
 oHbe 'statutes^ stnct conformity with the rules of the common L^w. If " sim- 
 plicity was the striking feature of the common law " {s), it was 
 in an almost equal degree the chief feature of the statutes of 
 Elizabeth, which are couched in very general terms, so as to in- 
 clude, and allow their application by the Courts, to, any fraudulent 
 contrivances to which the fertility of man's imagination might 
 liave resorted, as a means of eluding a more precise and inflexible 
 law. 
 
 The statute 13 Eliz. c, 5, is expressed to be directed 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 some other direction (?/). 
 But the simplicity of the enactment (r) and — if the expression 
 may be allowed — its expansiveness, have enabled the judges to 
 bring within its scope, and extend its operations to, almost every 
 kind of transaction resorted to by debtors to the prejudice of their 
 creditors. 
 
 The constant 
 growth of 
 fraud ; 
 
 and the 
 suppression of 
 it by the 
 statutes ; 
 
 which are to 
 be construed 
 liberally. 
 
 Neither 
 Btatnte speaks 
 of voluntary 
 conveyances. 
 
 " These statutes," said Lord Mansfield, " cannot receive too 
 liberal a construction or be too much extended in suppression 
 of fraud " (vj). So in Twyncs Case (x) it was resoh'cd that 
 "because fraud and deceit abound in these days more than in 
 former times, all statutes made against fraud sliould be liberally 
 and beneficially expounded to suppress the fraud." 
 
 The word "voluntary" is not to be found in either of the two 
 statutes of Elizabeth (y). Both statutes are pointed at fraudulent 
 conveyances. 
 
 («) Sug. Pow. 8th ed. Introduction, p. 1. 
 
 (t) Appendix No. I. 
 
 (m) See Murtlock v. Duller, 10 Vcs. 
 300 ; Lnidcy v. Jlooj)cr, 3 Atk. 279 ; 
 Story, Eq. Jur. 12th ed. s. 180. 
 
 (v) In lii/ull V. Jiollc, 1 Atk. 105, 
 184-5, Lord llardwicke said, "tbe Act was 
 made in the fiimplicity of former times, 
 long before those large and airy notions 
 of credit prevailed which have been 
 
 since introduced ; " S. C. 1 Ves. 348, 
 374. 
 
 (»•) In (^'ailorian v. Kcnnett, Cowp. 
 434 ; et vide Moo. 017; see Bump. Er. 
 Conv. (Amer.), 2nd ed. 12. 
 
 (j-) 3 Eep. 82 a ; and see WimUsh v. 
 Tallboys^ Plowd. 59 ; Rob. Fraud. Conv. 
 542. 
 
 (y) IToUoway v. Millard, 1 Mad. 418 ; 
 Cump. Fr. Conv. (Amer.), 2nd ed. 263, 264.
 
 OF THE STATUTES OF ELIZABETH. 5 
 
 This limits the scope of llie statute 1'] Eliz. c. o ; for it follows 
 that a conveyance cannot be avoided under that statute mcrcbj 
 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 
 transaction bona fide, and where there is no imagination of 
 fraud " (a). 
 
 By the construction that the statute 27 Eliz. c. ■[■, has received ronsiinctldn 
 in England, a conveyance of real estate or chattels real is always in England, ' 
 void as against a subsequent purchaser for value, if it be voluntary, 
 because it is deemed fraudulent in law, though in fact it may 
 have been perfectly free from any taint of fraud (/'). J hit 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. I, has received a in America, 
 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 vjithoitt notice (c). 
 
 The statute 13 Eliz. c. 5, is directed not only against such <"<"ist'»ctive 
 
 fraiul under 
 
 transfers of property as are made with the express intention of 13 Eliz. c. 5. 
 defrauding creditors ; but, as has been justly remarked, extends 
 as well to such as virtually and indirectly operate the same 
 mischief, by abusing their confidence, misleading their judgment, 
 or secretly undermining 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 in the 
 
 (~) Post, pp. 30, 50. (c) Perrii-IIcrrich v. Attwood, 2 D. G. & 
 
 (<■() ('adoyan v. Kennetf, 2 Cowp. 4.14 ; .T. ;30. 
 
 Mackaif v. Jhinjlas, L. K. 14 Eq. 121; {d) Story, Eq.Jui-. 12th cd. ss. 427, 428 ; 
 
 post, p. 3(). iiterry v. Arden (Anicr.), 12 Johns. 536. 
 
 (b) TownsJicndv. Windham, 2 Ves. 10 \ (e) Cathcart v. liuhinson (Anier.), 5 
 
 Troirdl V. l^henton, 8 Ch. D., per James Pelcrs, 264, 280; Story, Eq. Jur. 12th cd. 
 
 and Cotton, L.JJ., 325. kr. 428, 429: Kent, Com. 12tli cd. vol. 4, 
 
 41) 1.
 
 6 THE GENERAL OPERATION 
 
 construction of the statute, althougli perhaps there was, in fact, 
 no actual fraud or moral turpitude. It is diflicult in many cases 
 of this sort to separate tlie ingredients which belong to positive 
 and intentional fraud from those of a mere constructive nature, 
 which the law thus pronounces fraudulent upon principles of 
 public policy (/). 
 
 To draw any definite invariable line of distinction between 
 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 invari- 
 ably avoid the conveyance. 
 
 The most ordinary form of constructive fraud against creditors 
 under the statute 13 Eliz. c. 5, is that a voluntary conveyance 
 made by a man deeply indebted is vuid (y). 
 
 By the construction the statute 27 Eliz. c. l, has received 
 in England, the mere fact that the settlor has executed a subsequent 
 conveyance of the same lands to a bona fide purchaser for value 
 is of itself conclusive evidence of a fraudulent intention in law 
 at the time he executed the voluntary conveyance {h). 
 
 27 Eliz. c. 4 The statute 27 Eliz. c. l, cannot, so far, at least, as regards its 
 decirrrtol^ of o]jeration in cases of constructive fraud, be considered as merely 
 common law, Jeclaratory of the common law, notwithstanding what Lord 
 :\Ianstield said in Cadogan v. Kcnndt (i) ; for it introduced 
 a perfectly new and distinct protection to purchasers which 
 was before unknown (A). This appears from UiAon v. JBasscit (/), 
 mentioned in Twpie's 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 former right, title, interest, debt, or 
 demand, as (33 Hen. G) a sale in open market by covin shall 
 not bar a right which is more ancient ; nur a covinous gift shall 
 
 (/) Story, Eq. Jur. 12tli cd. s. 340 ; (/) Cowp. 434 ; ante, p. 3. 
 
 liump. Fr. Conv. (Amer.), 2nd ed. 25. (/.) Ante, p. 5. 
 
 {<l) See post, pp. 35 et scq. (0 3 Rep. 83 a. 
 
 (//) See post, pp. 187 ct scq. (»0 3 Hep. 80 b.
 
 OF THE STATUTES OF ELIZABETH. 7 
 
 not defeat execution in respect of a former deLt ; Liit he wlio 
 liatli right, title, interest, debt, or demand more puisne shall not 
 avoid a gift or estate precedent, by the common law " (v). 
 
 It is only by virtue of the statute 27 Eliz. c. 4, therefore, that whidi it goes 
 a purchaser can avoid a ^^rw?' voluntary conveyance, &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 (n) ; for the 
 common law does not touch such a case of constructive fraud. 
 
 This, however, only refers to the doctrine that, in general, every except whcro 
 
 , , . . , • . 1 •, Ihcro is actual 
 
 volu ntar J/ coiiYejancc. is void as aganist a subsequent purchaser ; fraud, 
 the common law did not reach such cases, in which the fraud is 
 created, or rather definitely 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 pur- 
 chaser. Thus Lord Cranworth said, in Perry -Herrich v. Att- 
 v:ood (2)), that the jurisdiction of the Court in such cases existed 
 long before the statute 27 Eliz. c. 4, " which can only be in- 
 tended to give a more clear and distinct jurisdiction, and a more 
 extended remedy." 
 
 The statute 13 Eliz. c. o, is in very general words (q), and 13 Eliz. c. 5, 
 makes void against creditors all manner of alienations of property, 
 judgments, &c., had or made with the intention of delaying or 
 defrauding them. 
 
 In this it follows, not only the common law of England, but Mh-^-s the 
 also the Homan civil law. By tliat law it was provided that all 
 acts, of whatever nature, done by debtors to defraud their creditors 
 should be revoked (7-) ; as to voluntary alienations, whether the 
 donee knew of the prejudice done to creditors or not (s) ; and as 
 
 (n) Bartonv. Vanheythvijsen, 11 Hare, (7) Ante, p. 2. 
 
 12(5, 132-3; post, p. 204. (r) Dig. lib. 42, tit. 8, par. 1, ss. 1, 2 ; 
 
 (o) Jones V. Crouclier, 1 S. & S. 315 ; Domat's Civil Law, book 2, tit. 10, sec. 
 
 Bill V. Cureton, 2 My. & K. 512 ; infra, 1, par. 1 ; 1 Fonbl. Eq. 270. 
 
 p. 204. (s) "Simili modo dicinuis et ci ciii 
 
 (;>) 2 De G. & J. 21, 40. dcnatum est, non esse quicrendum an,
 
 THE GENERAL OPERATION 
 
 to alienations not voluntary, if the grantee knew of the fraud {t), 
 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 {it) ; 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 design 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 lo Eliz. 
 c. 5) any circuitous means by which a debtor attempted to defraud 
 creditors was declared void : viz., by giving up a security to a 
 person who owed liim money {lu), or suffering 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 
 voluntary diminution of his goods to the prejudice of his credi- 
 tors (y), everything done by such collusion was revoked, and the cre- 
 ditors restored to the first right of their debtor {z). So payment of 
 a debt by a debtor before it was really due {a), or putting himself 
 under obligation for what he did not owe (I), was liable to be 
 revoked. But, as with us, it was no fraud for a man to pay one 
 bona fide creditor in j)reference to others, although because of such 
 payment there did not remain enough to satisfy the other credi- 
 
 stiente eo cui donatum gestum sit ; sed 
 hoc tantum, An fraudentur creditores? 
 Ncc videtur affici injuriA is qui ignoraiit, 
 cum lucrum extorqueatur, non damnum 
 jnfligatur." Dig. lib. 42, tit. 8, par. 6, 
 see. 11. 
 
 (t) "Ait praetor, Qure fraudationis 
 causa gesta crunt cum eo qui fraudem 
 nou ignoraverit .... actionem dabo." 
 ILid. par. 1, sees. 7-8. 
 
 (m) Domat's Civil Law, book 2, tit. 10, 
 Bcc. 1, par. 3 ; see C'oi)is v. JIUhUeton, 2 
 Mild. 410-429, infra, p. 81. 
 
 (c) Domat, book 2, tit. 10, sec. 1, par. 
 5. "Quod ait prretor, scienter sic acci- 
 piinus te conscio ct fraudem parlicipante ; 
 non enim si simplicitcr scio ilium credi- 
 tores habere, hoc sufncit ad contendendum 
 tencri eum in factum actione : sed si par- 
 ticeps fraudis est." Dig. lib. 42, tit. 8, 
 par. 10, sees. 3 and 4. 
 
 (if) "Si pignora liberet." Ibid. par. 2. 
 (.»•) "Verum etiam si forte data, oper4 
 ad judicium non adfuit." Ibid. par. 3, 
 sec. 1. 
 
 (y) "Et qui aliquid fecit ut desinat 
 habere quod habet." Ibid. par. 3, sec. 2. 
 "In fraudem facere etiam eum qui non 
 facit quod debet facere." Ibid. par. 3. 
 
 (r) "Quodcumque igitur fraudis causi 
 factum est, videtur his verbis revocari, 
 qualecumque fuerit, nam late ista verba 
 patent. Sive ergo rem alienavit sive 
 acceptilatione vel pacio aliqucm libera- 
 verit." Ibid. par. 1, sec. 2. 
 
 (a) Ibid. par. 10, sec. 12. "Omnes 
 debitores qui in fraudem creditorum libc- 
 rantur per banc actionem revocantur 
 in pristinam obligationem." Ibid. par. 
 17. 
 
 (h) "Sive se obligavit fraudandorum 
 creditorum causa." Ibid. par. 3.
 
 OF TPIE STATUTES OF ELIZABETH. b 
 
 tors {(■), whether the payment was made willin,gly ur uii compulsion; 
 the other creditors oui^ht to bhime 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 (r). 
 
 It will be found that all these provisions are contained in, or 
 have, by judicial interxJietation and implication, been engrafted on, 
 the statute 13 Eliz. c. 5. 
 
 These two Statutes of Fraudulent Conveyances have been in Tlic long 
 operation for upwards of 300 years, and a vast number of cases thcTtatutes. 
 have been directly decided upon them, besides many others on 
 which they have exercised an indirect influence. 
 
 As to the statute 13 Eliz. c. 5, at least, which relates to the 13 Eliz. c. .5, 
 protection of creditors, it may be said that its effect has been, interests of 
 throughout this length of time, uniforndy beneficial. It has been crctli'ors. 
 well observed (/) that "it must be a fundamental policy of 
 all enlightened 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, bargaining and chevi- 
 sance between Man and Man, without the which no Common 
 AVealth 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 of activity. Extended to 
 
 other 
 coimtncs 
 (c) "Qui suum recipiat, nullam vlderi dum est, is obtulerit niihi, an ego illi 
 
 fraudem facere." Dig. lib. 42, tit, 8, par. c.\torserim invito ? Kt si cxtorserim invito, 
 
 6, sec. 6. " Qui debitam pecuniam recepit revocotur? Si non cxtorserim non rcvoce- 
 
 antequam bona debitoris possidcantur, tur? Sed vigilavi : niclioreni nieani con- 
 
 quamvis sciena prudensque solvendo non ditionem feci : jus civile vigilantibus 
 
 esse recipiat non timere hoc edictum ; scriptum est. Ideo non revocatur id quod 
 
 sibi enim vigilavit." Ibid. sec. 7. perccpi." Ibid. par. 24, apud fincni. 
 
 {(I) "Licet creditori vigilare ad suum (c) "Fraudis interpretatio semper in 
 
 consoquendum. Quid ergo si cum in eo jure civili non ex eventu duntaxat sed ex 
 
 assent ut bona debitoris mei venircnt, consilio quoquo desidcratur." Ibid. lib. 
 
 solverit mihi pecuniam ; an actione 50, tit. 17, par. 79. 
 revocari ea possit a me? An distinguen- (/) Story, Eq. Jur. 12th cd. s. 350.
 
 10 THE STATUTE 13 ELIZ, C. 5, 
 
 exercised a wholesome influence on tl)e commerce nnd industry, 
 and therefore on tlie prosperity,, of this country. Its adoption in 
 other countries, as Ireland ([/), the Isle of Man (Ji), and most 
 of the colonies of Great Britain (0, and its universal adoption in 
 America (Z), are proofs of its value and efhcacy. Its i^nciples 
 have likewise been adopted from the civil law by France, Holland, 
 and Spain (/). 
 
 13 Eliz. c. 5, The statute 13 Eliz. c. 5, extends to creditors a7ul others (m), and 
 
 applies to . . 
 
 others as well IS not in temis confined to fraudulent dispositions ; for it makes 
 void any disposition which is intended to delay, hinder, or defraud 
 creditors and others, &c. (n). 
 
 W(irks con- The statute 13 Eliz. c. 5,has always been, both in principle and 
 
 currently 
 
 with the practical operation, quite distinct from and independent of the 
 
 Acts "^"^'^^ bankrupt laws, but has worked concurrently and, for the most part 
 harmoniously, with the long series of Bankruptcy Acts which have 
 succeeded one another, with various provisions and amendments 
 which the growth of commerce and civilization 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 elective now as it was at its first 
 enactment, on account of its simplicity and comprehensiveness. 
 
 The difference The question whether a deed is void under the statute 13 Eliz. 
 
 between 
 
 IS Eliz. c. 5, c. 5, is a very different one from the question whether that deed 
 Jiankruptcy is void Under an}' of the successive Bankruptcy Acts. 
 
 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 preju- 
 dice of their creditors ; it, in fact, considers 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 legacies, the debts should first 
 be satisfied, for Lord Nottingham said he would not " make a man 
 
 (r/) 10 Car. 1, BCss. 2, c. 3. (/.) Story, E.|. .Tur. 12th cd. s. 353 ; ct 
 
 (A) Sec Mills' Stats, of Isle of Man, suj)ra, p. 2; 4 Kent, Com. 12th ed. 4G3. 
 
 p. 238. Corktt V. lladcVffe, 14 Moore, (/) 3 Burge, Col. Law, GIG. 
 
 !'• C. 121. (w) Section 1 ; post, pp. G4, G5. 
 
 (0 3 Burge, Col. Law, C44. (j?) Section 1 ; post, i)p. 17 et seq.
 
 COMPARED WITH BANKRUPTCY ACTS. U 
 
 sill ill liis grave " (o) ; so tlio statute 13 Eliz. c. 5, gives a pvicn-ity 
 to tluUs over vi)liiiitary and i'raiululeiit conveyances, and attempts 
 to prevent a man in his lil'etime from sinning against liis just 
 creditors. 
 
 The meaning of this statute, said Jesscl, ^l.ll., in Middktoii v. 
 Pollock (j)), "is that the debtor must not retain a benefit for him- 
 self. It has no regard whatever to the question of preference or 
 priority among the creditors of the debtor." A settlement, there- 
 fore, which preferred certain creditors and tended to defeat the 
 others, might be good under this statute of Elizaljeth. 
 
 The primary aim of all the successive Bankruptcy Acts how- 
 ever, 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 {(j) ; 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, 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. 
 
 Nor, ao-ain, is it material under this statute of Elizabeth whether Assignment of 
 
 ° 17 7 1- , i. T-holc property 
 
 the assignment by the debtor is of the whole of his property, present ^ot necessarily 
 or future, or of any part of it. So it was said by Thesiger, L.J., in i'3 'J.jJ'^|'^.'' 5 . 
 ExiMTte 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 tide — 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." 
 
 Under the Bankruptcy Act, 1883 {t), however, a debtor commits ^"|^jj^^^^^^-')[j 
 an act of bankruptcy if he makes a fraudulent conveyance, gift, ° 
 delivery, or transfer of his property, or of any part thereof. 
 
 (0) Bnmsdcn v. Stratton, Prec. Chan. (;•) 12 Cli. D. 321. 
 
 520. (s) L. R. 4 Ch. C2G ; Ii>/all v. lioUc, 
 
 {p) 2 Cli. D. I(,i8, 109; see AUon v. 1 Atk. 1G5, 180. 
 
 Harrison, L. R. 4 Ch. 622, and £x parte (0 Section 4 (1) C ; and sec section 4 
 
 Games, 12 Ch. D. 314. (1) A- 
 
 (q) Eximrtc liussell, 19 Ch. D. 588.
 
 12 
 
 THE STATUTE 13 ELIZ. C. 5, 
 
 DoeJ good 
 under 13 Eliz. 
 c. 5, but void 
 under Bank- 
 ruptcy AciB. 
 
 Voluntary 
 setllements 
 avoided by 
 Bankruptcy 
 Act, 1883. 
 
 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 fraudulent under the Bankruptcy Act, an act 
 of bankruptcy, and void against the trustee in bankruptcy (ii). 
 
 But the converse of tliis is not true. 
 
 A deed may be a good deed under the statute 13 Eliz. c. 5, 
 and yet may come ■within the Bankruptcy Acts, 
 
 Thus, an assignment by a man of his vjJwle property to a trustee 
 for creditors generally may be a good deed under the statute 13 
 Eliz. c. 5 (r) ; but is an act of bankruptcy under the Bankruptcy 
 Act, 1883, if impeached within three months of its execution (w) ; 
 and was under the Act of 18G9, even though for valuable considera- 
 tion (x), unless also bona fide (y). 
 
 Again, a deed may be a preference of one creditor over others, 
 and yet be a good deed under this statute of Elizabeth (z) ; 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 (h). 
 
 By the Bankruptcy Act, 1 883 (c), all voluntary settlements made 
 by any settlor within two years before bankruptcy are void against 
 the trustee in his bankruptcy ; and if made within ten years they 
 are also 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 «i right of his v:ife" 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 
 
 (w) See BiUiter v. Younr/, 6 E. & B. 1 ; 
 Ymnff V. Ward, 8 Ex, 221, 234, where 
 Lord Wensleydale classified fraudulent 
 deeds whicli are acts of bankruptcy; 
 Devon V. Watts, 1 Doug. BG, and Ilassells 
 V. tilmjison, 1 Doug. 80, 02 ; Com. Dig. 
 tit. Bankrupt (C.) 8; and Ej: parte Cluip- 
 Un, 26 Ch. D. 319. 
 
 (r) Post, pp. 00 et seq. 
 
 (//•) 46 & 47 Vict. c. 52, s. 4 (1) (A) ; 
 32 & 33 Vict. c. 71, 8. 6 (1); Robson, Bkcy. 
 iilh ed. 154 ct seq. ; post, p. 04. 
 
 [x) See post, p. 04 ; and tSiebert v. 
 >Sj)ooner, 1 M. & W. 714. 
 
 iy) Baxter v. Pritchard, 1 A. & E. 
 456 ; Bose v. Jlancoch, 1 A. & E. 460 ; 
 EobsoD, Bkcy. 5th ed. 156 et seq. 
 
 (z) Midilkton V. Pullocl; 2 Ch. D. 104. 
 
 (a) 46 &47 Vict. c. 52, s. 48 : post, p. 100 ; 
 and see liobsou, Bkcy. 5th ed. 167 et seq. 
 
 (b) 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,
 
 COMPARED WITH BANKRUPTCY ACTS. 13 
 
 that of property belonging to the husband in his own right (< ). A 
 question therefore may possibly arise as to whether such a settle- 
 ment, 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 invali- 
 dates 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. 1, has no relation to the Bankruptcy 
 
 Acts. 
 
 The statute 27 Eliz. c. 4, it will be seen (/), makes void as against Purchasers 
 subsequent purchasers all transfers of real estate or chattels real ?; Eliz. c. 4. 
 made to defraud them, nearly in the same terms as are employed 
 by the statute 13 Eliz. c. 5, in favour of creditors. 
 
 It is clear, however, that the operation and construction of these Difference 
 two Acts must be materially different. J^oTalu^es. 
 
 Under the statute 13 Eliz. c. 5, the fraud against creditors, if Under 13 Eliz. 
 any, exists, theoretically at least, at the time the conveyance, &c., cre^ditorr"^^ 
 is made (g). As soon as that is executed, an act has been done ^?"^^ " ??™' 
 
 •^^ plete at the 
 
 upon which the statute is capable of operating at once. The time convey. 
 
 &nc6 is cxc- 
 
 ground on which a disposition of property has been held fraudu- cuted. 
 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. Gnilham (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, whatsoever 
 
 (c) Warden v. Jones, 2 De G. & J. 7G ; (/<) So also, under the earlier lanknipt 
 
 Spirett V. JMUows, 3 D. J. & S. 293. statutes, the settlor must have been a 
 
 (/) Post, pp. 180 et seq. trader at the time when he made the 
 
 (g) Wallcer v. BurroicB, 1 Atk. 93 ; voluntary settlement ; see Lilly v. Onborn, 
 
 Holloway v. Millard, 1 Mad. 420; In re 3 P. W. 298 ; 1 Jac. 1, c. 15, s. 5; this 
 
 Johnson, 20 Ch. D. 389, S. C. 51 L. J. distinction does not exist under 4G & 47 
 
 (N.S.) Ch. 503 ; In re Maddever, 27 Vict. c. 52 ; see post, pp. CI et seq. 
 Ch. D. 523, 526, 530 ; Story, Eq. Jur. {() 2 Buls. 225. 
 
 12th ed. s. 353, n. ; post, pp. 15, 35, 67.
 
 14 
 
 STATUTES OF ELIZABETH 
 
 Intention of 
 the conveyer, 
 whether the 
 fraud is actual 
 or merely con- 
 Btructive. 
 
 Under 27 Eliz. 
 c. 4, against 
 purchasers, 
 the fraud 
 not complete 
 until tlie 
 second 
 conveyance. 
 
 he shall say afterwards will not anyways salve and amend the 
 matter, but the same shall be fraud, and shall be within the statute." 
 
 A conveyance which is constructively fraudulent under the 
 statute 13 Eliz. c. 5, and for that reason void, is so because, from 
 the construction to be put on all the circumstances of the case, 
 it must be 2'>^^csumccl that the conveyance was made with the 
 intention of defrauding creditors (/.). 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 the deed, 
 whether or not his intention was to defeat creditors (/). 
 
 On the other hand, it is evident that there must be two sepa- 
 rate acts to constitute a fraud cognizable by the statute 27 Ehz. 
 c. 4 ; first, a conveyance fraudulent by being set up against the 
 subsequent purchaser ; and secondly, the conveyance to that 
 purchaser. 
 
 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 statute {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 convey- 
 
 <J:) IIohiHS V. Fenney, 3 K. & J. 90, 
 99 ; Freeman v. Pope, L. R. 5 Ch. 538, 
 543 ; Inre Johnson, 20 Ch. D. .S89, S. C. 
 51 L. J. (N.S.) Ch. 503 ; In re Maddever, 
 27 Ch. D., per North, J., at p. 52G ; but see 
 Ex parte Mercer, 17 Q. 13. I). 2D0, post, 
 pp. 38, 41. 
 
 (/) Kunn V, Wilsmore, 8 T. R. 521, 
 530 ; JTenderKon v. JJo7/d, 3 F. & F. 7 ; 
 Ware v. Gardner, L. IJ. 7 Eq. 317 ; Jn 
 
 re Pearson, 3 Ch. D. 807 ; Fx parte Mer- 
 cer, 17 Q. B. D. 200. The principle, how- 
 ever, is to be collected from a general 
 Bun'ey of all the authorities, rather than 
 by any express dicta : see also French v. 
 French, 6 D. M. & G. 95, 101 ; Keale v. 
 I>aij, 28 L. J. Ch. 45, 47, post, pp. 
 78, 84. 
 
 (w) IVcdlcr V. Pvrrous, 1 Alk. 94,
 
 DIFFERENCE BETWEEN THEM. 15 
 
 ance was made ; it is sufficient if it was subsequently made a 
 nieans of attempting to deceive a purchaser. 
 
 This distinction is in liarniony ^viLh all tlio authorities. It L'ndernEHz. 
 may, therefore, be stated as a settled principle that in order to eiim'stanccs at 
 decide whether a disposition of jiroperty is void as to creditors, ^^^^""j^^j^^p 
 under the statute 13 Eliz. c. 5, tlie state of circumstances at the to be rc{jarcle'l ; 
 time the conveyance is executed must be regarded (n). 
 
 In order to determine, under the statute 27 Eliz. c. 4, whether imt unJtr 
 
 27 Eliz. c. 4 
 
 a disposition of property is void as against a subsequent pur- at time of 
 chaser, tlie circumstances at the time wlicn the purchaser g||j^;'^^"*^"* 
 assumed that character must be looked at, and considered in 
 relation to the previous disposition which is impeached as fraudu- 
 lent. It will be found that these two propositions will give the 
 key to eliciting a satisfactory and harmonious piinciple from 
 many decisions which might otherwise appear unintelligible or 
 contradictory. 
 
 The practical effect of the distinction, so far as regards IIow the 
 constructive fraud under the two statutes, was clearly laid operates 
 down by Lord Hardwicke in Towmhcnd v. Windham (^^), irc'onsuiR-th-o 
 where he said : " There is certainly a difference between fra"J- 
 the Statutes of Fraud of the 13 Eliz., which is in favour of 
 creditors, and the 27 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 conveyance for 
 valuable consideration, though no fraud in that voluntary con- 
 veyance, nor tlie 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 difference between that and the 13 Eliz. is this : if there 
 is a voluntary conveyance of real estate or chattel interest by 
 one not indebted at the time, though he afterwards becomes 
 indebted, if that voluntary conveyance was for a child (7), and 
 
 (n) See ante, p. 13 ; post, pp. 35, 67 ; (0) 2 Yes. 1, 10. 
 
 In re Johnson, 20 Ch. D. 389, S. G. 51 (/;) See post, pp. 187 et scq. 
 
 L. J. (X.S.) Ch. 503 ; Li re Maddever, (</) See post, pp. 7G, 77. 
 27 Cb. D. 523.
 
 IQ STATUTES OF ELIZABETH. 
 
 no particular evidence or badge of fraud to deceive or defraud 
 subsequent creditors, that will Ije good ; but if any mark of fraud, 
 collusion, or intent to deceive subsequent creditors appears, that 
 will make it void ; otherwise not, but it will stand, though after- 
 wards he becomes indebted."
 
 PART II. 
 
 THE BIGHTS OF CREDITORS UNDER THE STATUTE 
 13 ELIZABETH, CAP. 5. 
 
 CHAPTEE I. 
 
 WHAT KINDS OF PROPERTY ARE WITHIN THE STATUTE, AXP 
 WHAT KINDS OF CONVEYANCES. 
 
 The preamble of the statute 13 Eliz. c. 5, declares it to be made 13 Eliz. c. ■>. 
 " for the avoiding and abolishing of feigned, covinous, and fraudu- 
 lent 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 profit or charge out 
 of the same lands, tenements, hereditaments, goods and chattels, 
 or any of them " (h). 
 
 Under this description are included all kinds of property real Includes all 
 
 . property liable 
 
 and personal, legal and equitable (c), vested, reversionary (d), or to claims of 
 contingent (e), which are subject to the payment of debts, or ^^ 
 liable to be taken in execution at the time of the fraudulent con- 
 
 (a) Bills of exchange {Hornlloiver v. 536. Cboses in action were goods and 
 
 Proud, 2 B. & Aid. 327; Edwards v. chattels within 2 1 Jac. 1, c. 19 (R>/(dl v. 
 
 Coojyer, 11 Q. B. 33), shares in joint Bolle, 1 Atk. 1G5, 182, 183, S. C. 1 Ves. 
 
 stock and other companies (Ex parte 348), though not always comprised bj the 
 
 Burhrkhje, 1 Deac. Bkcy. 131; Ex parte words: Hertford \. Loivther, 7 Bcav. 1 ; 
 
 Vallence, 2 Deac. 354), and stock [Broivn see 46 & 47 Vict. c. 52, s. 168. 
 
 V. Bellaris, 5 Mad. 53) have been held to (h) 13 Eliz. c. 5, s. 2 : Appendi.x No. I. 
 
 he goods and chattels within other (e) AslifieUl v. Aslificld, 2 Vern. 287. 
 
 statutes; see also Humble v. Mitchell, 11 (d) Ede v. Knoioles, 2 Y. & C. Ch. C. 
 
 A. & E. 205. Bonds are goods and 172 ; Sexton v. Canney, 8 L. K. Jr. 216. 
 
 chattels: Sims v. Thomas, 12 A. & E. (e) Frenchy. French, <jV>.^l- ^^■%' 
 
 C
 
 18 WHAT KINDS OF PROPERTY 
 
 veyance (/) ; but, in fjeneral, not any not so liable ((j). The 
 reason of this is, that a settlement of property which creditors 
 could not have got at puts no property out of tlieir reach, and 
 cannot be fraudulent against them (h); and consequently, 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 the 
 
 formerly not, ^^^^^^.g^ j^ Mcdlmcs V. Fecivcr (k) Lord Kenvon (then Sir Lloyd 
 
 but now are. •^^•- <■ ^^ v / ^ \ j 
 
 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 
 fraudulent against creditors." 
 
 By 1 & 2 Yict. c. 110, s. 11 (the Judgment Act, which came 
 into operation on October 1, 1838), copyholds were 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 
 EHzabeth (/). 
 
 Money, bonds, So likewise money (//<), bonds, and choses in action of all kinds 
 action Tnd "^'^'^^^' ^0* formerly within the statute, because they could not be 
 stock lormerly readied bv an execution (n). 
 
 no " ^ ^ 
 
 Thus, a settlement or transfer of stock, which was not liable 
 to debts or execution in the absence of any lien (o), could not be 
 
 (/) Sims V. Thomas, 12 A. & E. 536; Yin. Abr. tit. Fraud. (F.), 22, vol. 13, p. 
 
 Tuniley V. Hooper, 2 Jut. (S.S.) lOSl. 522; £x j^^rte Shorland, 7 Yes. 88; 
 
 {g) Sims V. Thomas, 12 A. & E. 536 ; Kensinaton v. Chantler, 2 ilau. & S. 36 ; 
 
 Turnley v. Hooper, 2 Jur. (N.S.) 1081 ; Ex inirte Skerratt, 2 Rose, 384. But see 
 
 and liidler v. Punter, 1 Cro. Eliz. 201 ; Purtrid(je v. Gopp, Arab. 596 ; et post, 
 
 but see post, p. 23. p. 22. 
 
 (Ii) HceJIuthev-sv.Feaver,! Cox, 278; (w) Korcuttv. Dodd, Cr. & Ph. 100; 
 
 Turnley v. Hooper, 2 Jur. (N.S.) 1081; Edfjell v. Haywood, 3 Atk. 352, 356; 
 
 1 Story, Eq. Jur. r2th ed. s. 367. Uuffin v. Furness, Sel. Ca. Ch. 77 ; Ashe 
 
 (/) See Sims v. Thomas, 12 A. & E. v.Loic,lla.ycs&J.2S7;Sims\.7'homas, 
 
 536, 554; and see Bump. Fr. Conv. 12 A. &.E. 536; Adames \. Hallctt, h. U. 
 
 (Anier.), 2nd ed. 236. 6 Eq. 468. 
 
 {k) 1 Cox, 278 ; and see Hasselh v. (o) Cochrane v. Chambers, note to Horji 
 
 Simpson, 1 Doug. 89-03. v. Horn, Arab. 79; Xu)ites v. Corrorl; 
 
 (l) See Scriven, 5th ed. pp. 39-40. Yes. 189 ; JJank of England v. Lunn, 
 
 Tiajne's Case, 1 Sm. L. C. 8th ed. pp. 38, 15 Yes. 569-577 ; McCarthy v. Goold, 
 
 39. 1 Bali & B. 389. But see Guy v. Pearkes, 
 
 (m) Fletcher V. Scdley, 2 Yem. 490 ; 18 Yes. 197, and^/Zorn v. //orw, Amb. 79.
 
 ARE WITHIN 13 ELIZ. C. 5. 19 
 
 set aside as fraudulent against creditors (p); and altliougli, under 
 tlie peculiar circumstances of tlie case in liider v. Kidder {q), 
 Lord Eldon, the settlor being dead, allowed the transfer to he 
 made (?•), he seems to have been of opinion tliat stock was not 
 within the statute of Elizabeth, and assented to Lord Thurlow's 
 opinion to tliat effect in Bundas v. Dutius (.s). In Taylnr y. 
 Jones (t), however, the point does not seem to have been raised, 
 and a settlement of a sum of stock was set aside at the suit of 
 creditors. 
 
 Even before this Act, however, though a settlement of stock BePurc .TuJ-- 
 could not be impeached during the debtor's life, except under a "tilemenia of 
 commission of bankrui)tcy (u), it could be got at after his death (v) ^^^'^^ °^ •, 
 
 ± Ki \ y o V /> money vom 
 
 in the one case, the Court of Bankruptcy, and in the other the °" bankniptoy 
 
 ^ "^ or death ol 
 
 Court of Chancery, taking the whole estate into possession for settlor, 
 the purpose of administration. After the debtor's decease, also, 
 his creditors could sue the persons claiming under the fraudulent 
 deed as executors de son tort, the property settled being assets in 
 their hands (ic) ; from which it may be inferred that a settlement 
 of stock, &c., made before 1 & 2 A^ict. c. 110, might be void 
 against creditors if the debtor had become a bankrupt or died. 
 
 And in the same manner, a settlement of monc// could be set 
 aside at the settlor's death (';), and though, in his life, it could 
 not be reached by creditors before this Act by any process at 
 law, it seems cp.iestionable whether, in some cases, ecpiity could 
 not have reached it. In Partridge v. Goiip (y), children were 
 
 (p) DundasY. Diitens, 1 Yes. Jun. 19G- (u-) See 2 Eoll. Kep. 173; 2 Ben. & 
 
 198. Dal. 94, pi. 16 ; Yin. Abr. tit. Fraud (C), 
 
 (q) 10 Yes. 3G0. pi. 5, 7, 8, 11 ; Kitcldn v. Dlxson, Gouldsb. 
 
 {r) 10 Yes. 370 n. (50), 2nd ed. See IIG, pi. 12 ; Howes v. Leader, Cro. Jac. 
 
 also Eider v. Kidder, 13 Yes. 123 ; 271 ; Edicards v. llarhen, 2 T. E. 587 ; 
 
 Primjle v. Hodgson, 3 Yes. 617. Stamford's Case, 2 Leon. 223; Towns- 
 is) 1 Yes. Jun. 198; 2 Cox, 235, 240. Jiend v. Windham, 2 Yes. 11; S/iears 
 (t) 2 Atk. 600. As to sequestration v. Jiorjers, 3 B. & Ad. 3G2 ; SItee v. 
 
 of clioses in action, see Slmmonds v. French, 3 Drew. 71G. 
 
 Klnnalrd, 4 Yes. 735 ; Wilson v. Metcalfe, (./•) Whittuujton v. Jcnnlmis, C Sim. 493. 
 
 1 Beav. 263. As to clioses in .iction, see per Lord 
 
 (m) Pringle v, Hodgson, 3 Yes. 617 ; Cottenliam in Norcutt v. Dodd, Cr. &. Ph. 
 
 Eider v. Kidder, 10 Yes. 360, 368. 100, 102. 
 
 {v) McCarthy v. Goold, 1 Ball & B. (y) Anib. 596. See also East India 
 
 387, 390; Eider v Kidder, 10 Yes. 3G0, Co. v. Clavel, Gilb, Eq. Eep. 37 ; Tree. 
 
 368-9. Ch. 377. 
 
 C 2
 
 20 
 
 WHAT KINDS OF PROPEllTY 
 
 ordered to refund £500 eacli paid to tliem by their father, an 
 insolvent executor, for their maintenance. 
 
 So it was laid down by Lord Cottenham in Nomitt v, Dodd (z), 
 that a chose in action, after the death of the assignor, because it 
 was assets in the hands of the executor, could be reached by 
 creditors. 
 
 Policies of 
 assurance 
 formerly not. 
 
 Purchase in 
 naran of cliild 
 or third per- 
 son formerly 
 not : 
 
 Lord Manners doubted, in Grogan v. CooJcc (((), whether policies 
 of life insurance were within the statute ; but it is now settled 
 that they are securities for money within the meaning of the 
 1 & 2 Vict. c. 110 (b), and it follows that they are subject to 
 the claims of creditors under the statute 13 Eliz. c. 5, and it 
 has in fact several times been so decided (c). 
 
 It was at one time held ((/) that, as money could not then be 
 taken in execution, a purchase in the name of a cliild or third 
 person was not within the statute. If the 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 tliat the debtor might have f/iven the money to the child 
 or third person, who might himself have made the purchase ; and 
 that unless, as Lord St. Leonards expresses it (r), the purchase 
 itself was substantially aflected with fraud, the mere fact that the 
 money of the debtor v/as laid out in the purcliase of land for the 
 benefit of a child would not be a reason for bringing the purchase 
 within the statute. 
 
 or joint Thus, also, a purchase by a husband in the joint names of 
 
 names'of self liii^^i^elf and liis wife, though, perhaps, open to more suspicion (/), 
 
 and wile. 
 
 (z) Cr. & Ph. 100, 102. 
 
 («) 2 Ball & B. 233. 
 
 (h) Section 12. Jycno v. London, <Cy., 
 Pulley Company, 1 K. & .T. 223 ; liohson 
 V. McCreiylit, 25 Beav. 272; /Stokoe v. 
 Cowan, 29 Beav. 037. 
 
 (c) Stohoe V. Cowan, 29 Beav. 637 ; 
 Jenl-yn v. Vauylian, 3 Drew. 419 ; 
 Sharf V. &Hlhy, 1 Mac. & G. 3G4 ; 
 Penhall v. Elwin, 1 Sm. & Giff. 267 ; 
 Freeman v. Pope, L. l\. 9 Eq. 206, S. C. 
 
 L. R. 5 Ch. 538 ; TayJor v. Cocncn, 1 Ch. 
 D. G3G. 
 
 {(l) Fletcher v. Scdlcy, 2 Vern. 490; 
 Gluifiicr v. Jlewer, 8 Yes. 199 ; iJvffin 
 V. Furness, Sel. Ca. Ch. 77; Proctor v, 
 Warren, Sel. Ca. Ch. 78 ; Barrack v. 
 McCuUoch, 3 K. & J., per \.C. Wood, 
 117-118; and see Dart, V. & P. 5th ed. 
 938. 
 
 (e) Sug. V. & P. 14th ed. p. 70G. 
 
 {/) Christ's IlospUul V. Budijin, 2 
 Vern. G83.
 
 ARE WITHIN 13 ELIZ. C. 5. 21 
 
 has been considered not within the statute (y), though the question 
 was never fully settled (It). 
 
 But now by the Married Women's Property Act, 1882 (i), 
 s. 10 (extending the Act of 1870, s. G), it is jmjvided 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 luisband 
 or to any deposit or other investment of moneys of tlie husband 
 made by or in the name of liis 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 
 creditors, in considering the validity of any deposit or investment 
 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 trustees in rurcl)a.--o 
 trust for such persons, &c., as he should appoint, an appointment trustees to 
 by him in favour of wife and children was, of course, held ^^^^^^^^ "'^ 
 voluntary, and within the statute ; for he had in him an equitable arp'^i"f- 
 estate (/). 
 
 Since January 1, 1838, the date of the operation of 1 & 2 Purchase in 
 
 name of chil'l, 
 
 Vict. c. 110, money can be taken in execution, and it therefore wife, or third 
 follows that a purchase in the name of a child, or wife, or third |^.^J[,j^ gJaiute. 
 person on or after that date would be within the statute (in). 
 
 The same seems now to be the settled law in America, where the 
 point has been much discussed (n). 
 
 ((/) Kinr/don v. Jji-khjefi, 2\ern. Cj7. see Barton \. VauJic>/tJniijsc)i, 11 Hare, 
 
 (A) See Lord Hardwicke's observa- 126, 130; post, p. 200. 
 tioDS, Undenvood v. Hitchcox, 1 Ves. {m) Barrack v. 3IcCuUocIi, 3 K. & J. 
 
 280. 110 ; but see Brew v. Martin, 2 H. & M. 
 
 (0 4.5 & 40 Vict. c. 75, s. 10. 130. 
 
 (/■) lie Eijhjn, G Ch. I). 115. (») Bump. Fr. Couv. (Aiucr.\ 2ud cd. 
 
 (/) Ashfield V. Ashjield, 2 N'eni. 287 ; 237, 238.
 
 22 
 
 WHAT KINDS OF PROPERTY 
 
 Sale of pro* 
 perty and 
 settlement of 
 purcliase- 
 money within 
 the statute. 
 
 So, too, purchase-money received upon a sale of property cannot 
 now be settled so as not to be within the statute. So Lord 
 Hatherley, then Sir AV. P. AVood, Y.C., said in Barrack v. 
 McCiiUoch (p) : " The late case of French \. French (jj) shows that pro- 
 perty 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 contingent annuity to his "wife if 
 she survived him ; and it was held that the annuity so purchased 
 for liis wife was a gift to her from her husband, which v;as void 
 under the statute, as against his creditors." 
 
 Judgment 
 Act. 
 
 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 (7). 
 
 But it seems that money voluntarily spent l)y a husband on 
 his wife's property in redemption of the land-tax (r), in building 
 improvements, or the enfranchisement of copyholds, even if the 
 husband was then insolvent (.s), cannot be followed by his 
 creditors ; and therefore is not within the statute. 
 
 But by 1 & 2 Vict. c. IIU (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-notes (w), 
 
 cheque's, bills, whether of the Bank of England, or of any other bank or bankers, 
 notes, bonds, ,^^^^ ^^^^ cheques, bills of exchange, promissory notes, bonds. 
 
 (o) 3 K. & J. 117, 118. 
 
 (p) 6 D. M. & G. 95. 
 
 (q) French v. French, 6 D. M. & G. 
 95 ; Xecde v. Day, 28 L. J. Ch. 45. 
 
 (r) Jjurrovf/h's Case, 17 Ves. 267. 
 
 (.s) Campion \. Cotton, 17 Ves. 2(33; 
 .•i!id see JJamcr v. Tihcy, 1 John. 48G ; 
 Stepney v. Biddulph, l?y W. I^. 57G ; fSug. 
 \. & P. 14th ed. 707 ; Dart, V. & P. 5tli 
 cd. 938, 939. The contrary is the law in 
 America: see Bump. Fr. Conv. (Amer.), 
 2nd cd. 239, 240. 
 
 (0 1 & 2 Vict. c. 110, s. 11 ; and see 
 Bott V. Smith, 21 Beav. 511. 
 
 {u) Section 12 ; Barrack v. JlcCiiIlorh, 
 3 K. & J. 110 ; Stoloe v. Coivan, 29 Beav. 
 637. Money, &c., is suhject 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 he gone through : Collin f/r id yc 
 V. Paxton, 11 C. B. 683.
 
 ARE WITHIN 13 ELIZ. C. 5. 23 
 
 specialties, or other securities for money (v), and stock and stockp, and 
 shares in public funds and public companies (/r), are to Ik- C(.ii- "'orwiSn 
 sidered as "goods and chattels" within the meaning of this ^''° ""''"'''• 
 section (,-»,■) ; even where, in the case of stock or shares, the 
 provision of the Act as to obtaining a charging 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 execution is not Tropcrtj now 
 within the statute. After the conveyance is made, alterations oll'iyirSc'to 
 of the law, subjecting the property comprised in it to execution e^''";'"'''"- ^rif 
 
 ... ^ ' ' settlor dead or 
 
 do not bring it within the statute of Elizabeth (::). Lut, wlietlier bankrupt. 
 
 the property be capable of being taken in execution or not, if the 
 
 settlor dies or becomes bankrupt, the property is then brought 
 
 within the statute (a). 
 
 The principle is, that to convey away any property against 
 wdiich execution can issue is a fraud on creditors, but not a 
 conveyance of that which they could not (but for the conveyance) 
 have touched ; so that, by successive 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 the law, Improvement 
 a better and more effectual or a different mode of affecting the reaching 
 property by way of execution has been created, it is immaterial so P'^P'^''^- 
 long as there was at the date of the settlement cmij 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). 
 
 (v) Mortgages of realty: >Si)trctl v. 536-554; Story, Eq. Jnr. 12tli cJ. ss. 
 
 Willoirs, 3 D. J. & S. 293. 360, 367. The same is tlie law in Upper 
 
 (w) Sections 14 and 15 ; Warden v. Canada : see Bank of U, C. v. Shick- 
 
 Jones, 2 De G. & J. 76 ; Goldsmith v. hina, 107 Chy. 157. 
 
 liussell, 5 D. M. & G. 547. («) See ante, p. 19; and see notes to 
 
 (.r) 13 Eliz. c. 5, s. 1 ; ante, p. 17, as Twi/ne's Case, 1 Sm. L. C. 8th ed. 38. 
 
 to what are goods and chattels, note (a). (b) Sec Bump. Fr. Conv. (Amer.), 2nd 
 
 (//) Goldsmith v. Russell, 5 D. M. & ed. 236. 
 
 G. 547-553. (r) Blenlcinsopp v. Blcnhinsopj^, 1 D. 
 
 (z) Sims V. Thomas, 12 Ad. & E. M. & G. 495-500.
 
 24 
 
 WHAT KINDS OF PROrERTY 
 
 Term held as 
 administrator. 
 
 Case in Ire- 
 land : estate 
 tail resettled 
 on self and 
 issue. 
 
 A term to wliicli a man was entitled in right of liis wife 
 as administratrix of her first husband, or whicli he held himself 
 as executor, has been held not within the statute {d). 
 
 A settlement by a tenant in tail, by which he opened and re- 
 settled his estate on himself for life, with remainders over, has 
 been held (r) not to be within the statute, because " the property 
 was in his dominion either to leave it as he got 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 
 bankrupt, 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 authority on the point. 
 
 Contingent A contingent reversionary interest is within the statute, and so 
 
 interest°given is the Settlement of an annuity purchased with the proceeds of the 
 as part of g^|g ^f ^ bankrupt's stock in trade, when the settlor was in 
 
 consideration '- ' 
 
 on sale of insolvent circumstances {h). 
 
 business. 
 
 Debts. The forgiveness by a debtor of a debt due to him would, of 
 
 course, be within the statute (/) ; or entering into a covenant not 
 to enforce a bond (A) ; for debts due to a man are now available to 
 his creditors (/), and within the statute. 
 
 Leaseholds. Leaseholds are within the statute, and an assignment of 
 
 leaseholds for no consideration is not within the exception in 
 
 (<Z) liidler V. Punter, Cro. Eliz. 291. 
 (e) Clements v. Eccles, 11 Ir. Eq. Hep. 
 
 (/) Ibid. L'38-0. 
 
 (f/) The Irish bankrupt law was then 
 regulated by 12 & 13 Vict. c. 107 ; see s. 
 78, re-enacting (j & 7 Will. 4, c. 4, ss. 78, 
 ;»1, &c., as to property vesting in assignees, 
 and their powers. And by the English 
 law they then had the same power by 12 
 & i;5 Vict. c. 10(3, s. 208, incorporating 
 
 the provisions of the Fines and Recoveries 
 Act. See 1 Griffith & Holmes, 2G1. 
 
 (Ji) Ante, p. 22 ; French v. French, 6 
 D. M. & G. 95, followed by Neale \. 
 Day, 28 L. .1. Ch. 45. See Burrach v. 
 McCuUoch, 3 K. & J. 110, 117-8. 
 
 (i) tSibthorp v. Jlo.com, 3 Atk. 581 ; 
 Henderson v. Lloyd, 3 F. & F. 7. 
 
 (/.) >S7ocZ; v. Tolson, 1 Russ. 553. 
 
 (/) See Common Law Procedure Act, 
 1854 (17 & 18 Vict. c. 125), ss. GO et seq.
 
 ARE WITHIN 13 ELTZ. C. 5. 25 
 
 tlie statute by the mere fact that the grantee becomes liable for 
 the rent (rn). 
 
 The pay or half-pay of officers is not assignalJe, nor is an Officers' i-ay 
 office of trust ; and therefore no question with regard to them can "ta'totc!"" 
 arise under the statute (n) ; for nothing can be taken in execution 
 which is not assignable (o). 
 
 Before the Married AYomen's Property Acts of 1870, 1871, and Wife's 
 1882, the wife's separate property not subject to a restraint on pojcjly wl.en 
 anticipation became under certain circumstances liable to the 2h /t^rc 
 payment of her debts contracted before marriage. V>y tlie marriage, 
 common law, indeed, the husband was supposed to take all the 
 wife's property (under certain restrictions as to real property), 
 and for this reason he was liable for her debts (})) — they became 
 his — during coverture (q) ; and this princijDle applied whether the 
 wife had or had not property at the time of her marriage (/•)• 
 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 cover- 
 ture, 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 of recoverincr auainst the wife after the husband's 
 death (t). 
 
 (m) In re Midler, 22 Ch. D., per [q) Loclnvood v. fialter, 5 B. & Ad. 
 
 Cotton, L.J., 82. 309. But see now the Married Women's 
 
 {n) Stone v. Lidderdale, 2 Anstr. 533 ; Property Act, 1870, s. 12 ; the Amendment 
 
 McCarthy v. Goold, 1 B. & B. 390; Act of 1874, ss. 1, 2, 5; and the Married 
 
 Bariuich v. Eeade, 1 H. Bl. 627, and Women's Property Act, 1882, ss. 11, 
 
 cases in note; see also 1 & 2 Vict. c. 110, 15. 
 
 ss. 55, 56. But see the Bankruptcy Acts, (r) Bell v. Stoclcer, 10 Q. B. D. at 
 
 1869 (32 & 33 Vict. c. 71), s. 89, and p. 130. 
 
 1883 (46 & 47 Vict. c. 52), s. 53, under (.s) Jlitchinson v. Jlewson, 7 T. 11. 
 
 which part of an officer's pay may he 348. 
 
 appropriated to paying his debts in his (t) Miles v. Williams, 1 P. Wms. 240 ; 
 
 bankruptcy. Lochwood v. Salter, 5 B. & Ad. 303, 
 
 (o) Bing. on Executions, 104. 309 ; Woodman v. Chapman, 1 Camp. 
 
 (/;) j\t William's Case, 1 Sch. & Lef. 188. 
 169 ; Chuhb v. Stretch, L. E. 9 Eq. 555.
 
 2G MARRIED women's PROPERTY 
 
 Separate But the reason of this has been broken in upon l)y the juris- 
 
 rnuisband'' ^ cliction which the Court of Chancery has exercised in protecting 
 imnble to 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 principle that such property was liable to her debts, if the 
 or bankrupt, liusband could not pay them (?/), was recognized (r). In equity, 
 though the wife was not and is not personally liable (/c), after the 
 husband's bankruptcy, a creditor of hers, even if he has proved 
 his debt in the bankruptcy, could obtain satisfaction out of the 
 Settlement to wife's separate property (.«). As every settlement which takes 
 liability.' property out of the reach of creditors of the settlor savours of 
 fraud, a case may be put where a woman being 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 pre- 
 served 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). 
 
 Biscoe V. In the old case of Biscoe v. Kennedy {z) personal estate was, on 
 
 Kennedy. ^^^^ marriage of B., settled to her separate 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 
 dismissed because the creditor had not done his best to get the 
 money from the husband, but afterwards, the husband having 
 aljsconded 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. 
 
 (u) Biscoe V. Kennechj, 1 V>vo. C. C. J7?//recr,W. N. (1884) 64, overruling i/oorc 
 
 17, n.; cited in Chulh v. >S7re<cA, L. R. x.IMligan, W.N. (1884)34; Glovcester- 
 
 9 Eq. 5G1. shire Banldnf] Co. v. Fhlllips, 12 Q. B. D. 
 
 {v) Sparles v. Bell, 8 E. & C. 1 ; 533; Bursilly. Tanner,!^ Q.H.D.^j'dl; 
 
 Loclai-ood V. Salter, 5 B. & Ad. 303, 312 ; Mearier v. Pelhir, 14 Q. B. D. 973. 
 Clnibh V. Stretch, L. E. 9 Eq. 555, 561. (.>) Chuhh v. Stretch, L. E. 9 Eq. 555 ; 
 
 (w) Hulme v. Tenant, 1 Bro. C. C. 20, infra, 
 and note 3; Francis v. Wigzell, 1 Mad. (//) Per Parker, C.J. (Lord Jraccles- 
 
 258-264; Atwoodv. Chichester, d Q. B. field), in Miles v. Williams, 1 P. Wnis. 
 
 D. 722. A married woman cannot now 249, 257-8. 
 
 be made personally liable as for a debt, {z) '^oteto Hulme v. Tenant, 1 Bro. C. 
 
 although final judgment can be signed C. 17 ; 1 Wh. & Tu. L. ('. 6th ed. 536; 
 
 against her under the Married Women's 2 Eop. Husb. & W. 2nd cd. 240. See the 
 
 Property Act, 1882, s. 1 (2). See Broivn decree in Chihb v. Stretch, L. E. 9 Eq. 
 
 V. Morgan, 12 L. E. Ir. 122, and Bcrls v. 562.
 
 WHEN WITHIN 13 ELTZ. C. 5. 27 
 
 In CMilh V. Stretch {a) a widow, being indebted, married Mr. ,S., c%nhh v. 
 and on their marriage a small freehold estate of hers and certain ' '''^''^ '' 
 sums of money were vested in a trustee for her separate use durin*"- 
 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 bankru])t ; 
 the creditors proved in the bankruptcy 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 ]\lr. and 
 Mrs. S. and the trustee of the settlement, for the pur2)ose of 
 having the sej^arate interest of Mrs. S. under the settlement 
 applied in payment of their debt. Sir E. ]\Ialins, V.C., held that 
 debts incurred by a married woman might be enforced against her 
 separate estate, and that though personally discharged at law {tj) 
 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), extended Married 
 the rights in equity of tlie ante-nuptial creditors of a woman liability for 
 married on or after the 9tli of August, 1870, to all her separate ^'^'' '^"J^' , , 
 
 C5 ' ' i- nuptial ilobts 
 
 property ; and expressly released the husband from any liability ^'^Aav^ the Act 
 in respect thereof. But, by this Act, a woman, by merely 
 marrying without any settlement, could defeat the claims of such 
 creditors altogether; as her property by the act of marriage 
 became her husband's. 
 
 In Sanger v. Sanger (d) a woman remarried, in 1871, without a Smu/er v. 
 settlement, who had incurred a debt before 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 ad- 
 ministered by the Court, and a fund had been set apart in Court 
 to meet this annuity. Judgment had been entered up against lier 
 after her marriage for this debt, and subsequently an order had 
 been obtained charging the fund with the debt, and interest. On 
 
 (a) L. R. 9 Eq. 555. (c) 33 & 34 Vi'ct. c. 93, s, 12. 
 
 (b) iViles V. Willkms, 1 P. Wins. (r/) L. E. 11 Eq. 470. 
 249; Atwoodw. Chichester, 3 Q. B. D. 
 
 722 ; Aylett v. Ashton, 1 My. & Cr. 111.
 
 28 MARRIED women's PROPERTY 
 
 an application for a stop order, it was held that section 12 extended 
 to property subject to a restraint on anticipation, and that the 
 charfjino- order was a i-'ood incumbrance. 
 
 London and go in London and Provincial Bank v. Bofjie (c), a woman then 
 
 Provincial . . -,n-" 771 j.j-1 
 
 BunlcY. in debt settled on her marriage, ni 18/ o, all her property to ner 
 
 ^°^^' 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 tlie debt and costs. Bacon, Y.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 anti- 
 cipation, the amount of their judgment debt and costs." 
 
 Under the Act 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 husband 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 restraint on 
 anticipation could be taken in execution to satisfy the claims of 
 her ante-nuptial creditors {(j). 
 
 Under the Under the Married Women's Property Act, 1882 {h), a woman 
 
 Act of 1882. j^^^j,j,-g^-^ Qj^ Qj. g.f(-gj, January 1, 1883, after her marriage continues to 
 
 be liable in respect and to the extent of her separate property for 
 
 all her ante-nuptial debts, as if she were still unmarried. For, it 
 
 should be observed that by this Act (/) the term separate property 
 
 (e) 7Cb. D. 773; and see Williams v. Jiohinson v. PicJccrinf/, 16 Cli. D. 660; 
 
 Mercier, 9 Q. B. D. 337, S. C. 10 App. Williams v. Mercier, 9 Q. B. D. 337, S. C. 
 
 Cas. 1. 1^ ^^PP- Cas. 1. 
 
 (/) 37 & 38 Vict. c. 50, ss. 1, 2, 5. (A) 45 & A^ Vict. c. 75, s. 13. 
 
 (ry) Ex parte Jones, 12 Cli. 1). 484 ; ('') 45 & 46 Vict. c. 75, s. 2.
 
 WHEN WITHIxNT 13 ELIZ. C. 5. 29 
 
 acquired an enlarged meaning. It now means, witli reference to a 
 woman wlio has married since the date of tlie operation of the Act, 
 all property, real or personal, which belongs to her at her marriage', 
 which she acquires or which devolves on her afterwards (/.). 
 
 As by the husband's death or bankruptcy, or by the disso- Settlements 
 lution of the marriage (/), the wife's sole liability revived so that ^7'°""^", 
 her separate property became liable to satisfy her debts it '^'''f" '"''V'-i'ig'*, 
 seemed to follow that any voluntary dealing witli licr separate againsVanto- 
 property by a woman, so as to put it out of the reach of her "rSrs. 
 creditors (7/;), would be void within the statute of Elizabeth 
 against 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 com- 
 pelled to satisfy the debts. Such a settlement, however, would 
 probably have Ijeen made on the valuable consideration of 
 marriage. 
 
 It followed from this that a wife's equity to a settlement which Eq.jiiy to 
 only attached to property which her husljand took in right of her {,1) suiljecrt''.* 
 would not generally be enforced against her creditors before her a"te-'i"rt'al 
 
 debls. 
 marriage ; at least not if her husband was bankrupt, and her debts, 
 
 contracted before her marriage, exceeded the property on which her 
 
 equity attached (0). 
 
 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 independently of her husband; and therefore 
 the question of voluntary alienation of property by her, not settled 
 to her separate use, cannot arise. Neither can tliis question arise 
 as to the property acquired on or after that day by any woman who 
 
 (Z-) 3Iander v. Harris, 24 Ch. D. at pp. now the Married "Women's Propcrt}- Act, 
 
 229-230. 1882, ss. 1 (1) and 10. 
 
 (0 Cq^'e^v. PoweZU7C.B. (N.S.)743; (») Knight v. Knigid, L. E. 18 Eq. 
 
 EoU. Ab. 337 ; Chubb v. Stretch, L. E. 9 490 ; and see Murray v. LordHlibanl; 10 
 
 Eq. 555 ; Bell v. StocJcer, 10 Q. B. D. Ves. 84 ; 1 Wli. & Tu. L. C. Gth ed. 
 
 128. 493 et seq. ; post, p. 29G et seq. 
 
 (?n) Of course a gift to her husband (0) Bonner v. Bonner, 17 Beav. 8G ; 
 
 would not have had that effect ; but see Barnard v. Ford, L. E. 4 Cii. 247.
 
 oU MARRIED WOMEN S PROPERTY. 
 
 lias married before January 1, 1883 (p). The husband, moreover, 
 is by the Act of 1874 only liable to the extent of the assets he has 
 or might have received through or in right of his wife {q), and by 
 the Act of 1882 to the extent only of all property Mhatsoever 
 belonging to his wife which he shall have acquired or become 
 entitled to from or through his wife (r). 
 
 ivr.irriecl The Married Women's Property Act, 1882 (rr), provides that 
 
 Property^ct, " ^"^0 restraint against anticipation contained in any settlement, 
 ^^^^' or agreement for a settlement, of a woman s own i^i^ojjcrty, to he 
 
 made or entered into hy 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 regards the woman's own property, and also 
 only if made or entered into ly her. A settlement, therefore, made 
 on her by a stranger will still lie 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 by This section gives to a settlement made by a woman of her 
 woman under own property the same validity against her creditors as a similar 
 Act ot 1882, settlement made by a man ; it will be valid or invalid under 
 
 when void "^ ' "^x^AVyj. 
 
 against her precisely the same circumstances, and is equally now within 
 
 creditors. 
 
 reach of her creditors. Although execution cannot issue against 
 a married woman's property generally, but is limited to her 
 
 {p) 45 & 4G Vict. c. 75, s. 5. {t) But see Sanger v. Sanger, L. R. 11 
 
 (q) See above, p. 28. Eq. 470 ; above, pp. 27-28. 
 (r) 45 & 4G Vict. c. 75, s. 14. (m) PauU. Paul, 20 Ch. D. 742; Hodges 
 
 (rr) 45 & 4(3 Vict. c. 75, s. 19. v. Hodges, 20 Ch. D. 749. 
 (n) Smith V. Wldtlocl; 55 L. J. (N.S.) 
 Q. 13. 286.
 
 WHAT SETTLEMENTS WITHIN 13 ELIZ. C. 5. 31 
 
 separate property to which a restraint on anticipation is not 
 annexed (r), yet where that restraint on anticipation is imposed 
 by a settlement, or agreement for a settlement, made l,y Uvr of 
 luT own property, execution may issue against that property (?r). 
 
 The statute 13 Eliz. c. 5, extends to all kinds of property which includea 
 may be the subject of a settlement, including, of course, a fjmcml P''j'i"^'"^^ 
 power of appointment by deed, and indeed any power whicli i''!'"''''''.!'"''''''" 
 
 J 1 11 , of appoint- 
 
 is not a bare, naked power, but an ownership, so that the mcnt by iiccd. 
 alienation of it would be prejudicial to creditors (,/). 
 
 But a rjmcral power of appointment by deed exercisalde by a 
 married woman is not her separate property {xx), and tlierefore is 
 not within the statute ; nor is property subject to a ixiHicular 
 power of appointment, as among certain persons ; for, as the 
 debtor cannot appoint to himself, his creditors cannot claim the 
 benefit of it (y). 
 
 As to the hhul of settlement or alienation wldch may be set What A/../.- of 
 aside as void under the statute, the Ist section enumerates n'IfboTe't 
 " feoffment, gift, grant, alienation, bargain, and conveyance of lands, '''•^'''• 
 tenements, and hereditaments, 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 hinds of settlements have been held to be within Settlements 
 the meaning of the statute. A voluntary settlement {z), a post- ^atut'e.^''' 
 nuptial settlement (a), a voluntary assignment ih), a voluntarv ^'"'""^'^'■y 
 
 ° ^ ^ -^ settlements. 
 
 assignment after the commission of felony, but before conviction (c), 
 a voluntary settlement reserving to the settlor a life estate deter- 
 minable on bankruptcy {d), a voluntary settlement which the settlor 
 
 {v) Gloucestershire Banlcing Co. v. (v.,) In re Armstronrj, 17 Q. I?. D. 
 
 PMlUps, 12 Q. B. D. 532; Bursill v. ICn, S.C. Ex parte Gilchrist, 11 (.1 W.D. 
 
 Tanner, 13 Q. B. D. G91. 521. 
 {w) BursillY. Tanner, nQ.li.T). mi. (y) See Toionshend v. Windham, '2 
 
 {x) Wiite V. Sansom, 3 Atk. 411; Ves. 9; and see Bump. Fr. Conv. 
 
 Troughton v. Troughton, 3 Atk. 056; (Amer.), 2nd ed. 241. 
 
 Townshend v. Windham, 2 Ves. 1, 11 ; (z) Holmes v. Penney, 3 K. & J. 00. 
 
 Whittington v. Jennings, 6 Sim. 493 ; («) Taylor v. Coenen, 1 Cb. D. GSC. 
 
 Bainton v. Ward, 2 Atk. 172; Stilwell (b) Norcutt v. Dodd, Cr. & B. 100; 
 
 V. Mdlersh, 20 L. J. Ch. 356, 360; Stohoe v . Cowan, 2'M\Qa.\ . mi . 
 
 Thompson v. Towne, Brec. Ch. 52; {c) Re Saunders, A G'l^. 11 'd. 
 
 Lassells v. CornwaUis, Brec. Ch. 232. (d) In re Pearson, 3 Ch. D. 807.
 
 32 WHAT SETTLEMENTS 
 
 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 property (Ji). It would seem that a volun- 
 tary settlement of an equity of redemption when the mortgagor 
 covenants to pay the interest on the mortgage, and to pay off the 
 principal, is within the statute (i). 
 
 Settlements A settlement, though made for valuable consideration, may be 
 01 va ue. affected by mala fides, but those who undertake to impeach for 
 mala fides such settlement, have a task of great difficulty to 
 discharge (l). The mere fact that a bona fide creditor may be 
 defeated is not of itself sufficient to set aside a deed founded on 
 valuable consideration (/). So an ante-nuptial settlement has been 
 held fraudulent and void (m), an assignment of a share in a partner- 
 ship 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 (j>), a separation 
 deed (q), money paid for redemption of the land-tax of land settled 
 by the settlor or himself and others (?■), 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 selling the business (f). An assignment for the general benefit 
 of creditors is not of itself within the statute (u), but it is if made 
 for the purpose of defeating an expected judgment (r). 
 
 (e) Tarhitchx. iVarhunj, 2 Yern. 510] (p) Cornish v. Clarl; L. E. 14 Eq. 
 
 Smith V. Harst, 10 Hare, 44. 184 ; but see In re Johnson, 20 Cb. D. 
 
 (/) See 3 Eep. 826 ; Uav. Free. 3rd ed. 389, S. C. 51 L. J. (N.S.) Ch. 503 ; Ex 
 
 vol. 3, G79. parte Eyre, 44 L. T. (X.S.) 922. 
 
 {(j) See Bidler v. ^Vaterhonse, 2 Jo. (ry) CJourjh v. Lambert, 10 Sim. 174; 
 
 94, decided on 27 Eliz. c. 4 ; Sug. A\ & P. Framjjton v. Frampton, 4 Beav. 257. 
 
 14th ed. 721. (,•) Emhj v. Guy, 3 Mer. 702. 
 
 {h) InreRidhr,1'lVh.'D.lA. (s) Qwen v. Body, 5 A. & E. 28; 
 
 [i) Ex parte HuxtaUe, 2 Ch. D. 54. Spencer v. Slater, 4 Q. B. D. 13. 
 
 (/j) Barman \. Richards, 10 Hare, per {t) Boldero \ . London and Westminster 
 
 Turner, L.J., 89. I^oan and Discount Co., 5 Ex. D. 47. 
 
 {I) In re Johnson, 20 Ch. D. at p. 390. (t,) PicTcstocl v. Lrjster, 3]\Jau. & Sel. 
 
 {in) Bidmer v. Hunter, L. E. 8 Eq. 46. 371. 
 
 {n) Ex parte Mayow, llJur. (N.S.)433. [v) Beese Silver Mining Co. v. Aticell, 
 
 (o) French v. French, 6 De G. M. L. E. 7 Eq. 347. 
 & G. 95 ; Walefield v. Gihbon, 3 Jur. 
 (X.S.) 356.
 
 ARE WITHIN 13 ELIZ. C. 5. go 
 
 The exercise of a general power of appointment by deed, either Powo.b of 
 over land (iv) or a sum of money {x), may be fraudulent and void ''PP"^"^"'"^"^- 
 under the statute, 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 avail- 
 able to a creditor, or by which he could have obtained credit (//). 
 
 A disposition of property is equally within the statute, wliether Cause of,],. 
 it is by voluntary settlement or by gift, whether it is in anticina ^''^r^'^'t'"" "<' 
 tion ot death or bankruptcy, or by the free will of the donor, or ^^ ^^« ''ei'to"- 
 whether it is at the 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 effected, it 
 will be held within the statute, which is general, for the suppres- 
 sion 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 judg- Judgments, 
 ment (/), therefore, or a confession of judgment, for a debt really 
 due (g), and k fortiori where no real debt (A); a fraudulent judg- 
 ment and execution (^) ; entering into a covenant not to enforce a 
 bond (k) ; or a transfer or forgiveness of debts due to him by a Release of 
 person indebted (/), are within the statute ; for as debts due to a '^''^''* 
 debtor can now be made available for payment of his debts (m), the 
 release or alienation of them is an injury to his creditors. 
 
 But any process by which an alienation of property liable to debts Fnin.luloiit 
 is effected will be within the statute ; so that where judgment was ""'''"''''■>• 
 
 (w) Townshend v. WindJiam, 2 Ves. 1. 96 ; Barrack v. M'Chdhch, 3 Kay & J. 
 
 (a;) Pack v. JBathurst, 3 Atk. 269. 110. 
 
 (y) See Sims v. Thomas, 12 Ad. & E. (/) Clavey v. Eayhy, 2 Cowp. 427. 
 
 536; Hockley v. Mawbey, 1 Ves. Jun. 148, (g) Holhird v. Anderson, 5 T. K. 235 ; 
 
 150 ; ante, p. 31. Meux v. Howell, 4 East, 1. 
 
 (s) Cornish v. Clark, L. R., 14 Eq. (A) Billiter v. Young, 6 E. & B. 1. 
 
 189. The same is the law in America : (i) Ivway v. 31agnny, 11 M. & W. 
 
 see Bump. Fr. Conv. (Amer.), 2nd eJ. 235. 267 ; Hunt v. Hooper, 12 M. & W. 664 ; 
 
 (a) 3 Co. 82 a; see also Lord Mans- and see post, pp. 171 et seq. 
 
 field in Cadogan v. Kennett, Cowp. 434, (Z) Slack v. Tolson, 1 Eiiss. 553. 
 
 and ante, p. 4. (/) SibtJiorj) v. lloxom, 3 Atk. 581 ; 
 
 (b) FitzerY. Fitzer, 2 Atk. 511. Henderson v. Lloyd, 3 F. & F. 7 ; 
 
 (c) Adames v. Halletf, L. R. 6 Eq. Bekher v. Prittie, 10 Bing. 408. 
 
 468. (»;) Common Law Procedure Act, 1854 
 
 (f^) Christy v. Courtenay, 1 Beav. (17 & 18 Vict. c. 125), sb. 60 et seq. 
 
 D
 
 34 
 
 WHAT SETTLEMENTS ARE WITHIN 13 ELIZ. C. 5. 
 
 Forfeiture. 
 
 given against one in debt, and he suffered himself to be outlawed in 
 felony to the intent to defraud liis creditors, and afterwards 
 purchased a pardon and had restitution, the creditor was allowed to 
 sue out execution on account of the manifest 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 (^j). 
 
 Family Settlements which are honest family arrangements are regarded 
 
 ^*t'^^^t°all ^^^^ favour by Courts of Equity (q), and are not within the statute, 
 withiu statute, although not founded on actual valuable consideration, unless the 
 rights of existing creditors are thereby directly interfered with (r). 
 Such settlements, if founded on an inadequate consideration, will 
 not therefore be held void {rr) ; for the Court, in such a case, does 
 not regard the inadequacy of consideration as a badge of fraud (s). 
 
 (n) Beverley's Case, 2 Dyer (Vail, ed.), 
 245 b, n. 
 
 (o) Vemey's Case, 2 Dyer, 245 b. 
 
 Ip) Anon. Vent. 257 ; Vin. Abr. tit. 
 Fraud (F.), pi. 14. 
 
 {q) Penhall v. Ehvin, 1 Sm. & G. 258, 
 269. 
 
 (r) Penhall v. Elioin, 1 Sm. & G. at p. 
 270. 
 
 (rr) Post, pp. 270 et seq. 
 
 (s) In re Johnson, 20 Ch. D. 389, S. C. 
 51 L. J. (N.S.) Ch. 503; post, pp. 271, 
 272.
 
 CHAPTER TL 
 
 WHAT VOLUNTARY CONVEYANCES ARE VOID AS ACAINST 
 EXISTING CREDITORS. 
 
 In considering whether a conveyance is void under 13 Eliz. c. 5, Oircum^tancM 
 all the circumstances at the time that the conveyance is made The dee.TiH 
 must be looked at, and not subsequent events, except such as must f "'i'^"'!'''^ '" ^ 
 be taken to have been in the contemplation of tlie transferor at 
 the time of transferring the property, and from which a fraudulent 
 intention at that time may be gathered (/). 
 
 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 transfer are 
 fatal to the validity of a transfer ? 
 
 What transfers are fraudulent against creditors in which the 
 fraudulent intention at the time of the transfer is shewn by sub- 
 sequent acts or events which may in fact have been, or must, in 
 law, be taken to have been, then in tlie transferor's contempla- 
 tion ? {tt). 
 
 As to the first class of cases, it may be stated generally tliat All voluntary 
 
 . , , , „ convevancei 
 
 aU voluntary transfers of property by a person " mdebted by pornons _ 
 according to Lord Hardwicke's meaning, as explained by sub- ^^'"j ^p^'j^.t 
 sequent cases, are void against creditors. The mere fact of a c"^^'^""- 
 man " indebted " giving away part of his estate is, by presumption 
 and construction of law, a fraudulent act. 
 
 The principle, as stated by Lord Hatherley, L.C., in Freeman v. 
 
 {t) Ante, p. 15, and see Mackay v. 20 Ch. D. 389, S. C. 51 L. J. (N.S.) Ph. 
 Douglas, L. R. 14 Eq. at p. 120 ; Ex parte 503 ; In re Madderer, 27 Ch. D. 523 ; 
 Bussell, 19 Ch. D. 588 ; In re Johnson, Ex parte Mercer, 17 Q. B. D. 290. 
 {tt) Post ch. iii. ; and see pp. 51-45. 
 
 n 1
 
 36 VOLUNTARY CONVEYANCES 
 
 Pope (u), 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 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 consideration 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 dispossessed himself of all his goods, 
 a/ud 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 settlement 
 
 "^iidebtTd ''^°'^ by a person not indebted, and not meaning a fraud, is clearly good 
 and not mean- against future Creditors. The law is perfectly settled that if a 
 
 iiig a fraud 
 
 good though man is solvent at the time and after the time of taking away the 
 property which is put into the settlement he remains solvent, and 
 does not at the time contemplate doing anything which could lead 
 to insolvency, that settlement will be good (w). Fraud, however, 
 of course vitiates the transaction — 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 (3/), and cannot be shaken by subsequent 
 debts. 
 
 Agreement It has never been decided whether a settlement by a man 
 
 indebted, indebted, in pursuance of an agreement entered into when he was 
 w>y!n™^^<.i>f iiot indebted, would be good against his creditors. If it were a 
 binding agreement, which could be enforced against him, or if 
 there was an actual completed trust, such a settlement would, 
 
 (u) L. E. 5 Ch. 540 ; and see Ex 588. The same is the law in Upper 
 
 parte Williams L. E.. 10 Eq., per Bacon, Canada: see Bank of British North 
 
 C.J.B., 61. America v. Rattenburg, 7 Chy. 383. 
 
 {v) Twyne's Case, 3 Eep. 81 b. (y) Sir T. Plumer, in Battersbee v. 
 
 (iv) Machay v. Douglas, L. R. 14 Eq., Farrington, 1 Sw. 106 ; Hardwicke, 
 
 per Malins, V.C. 121 ; post, pp. 45, 53. L.C., in Russel v. Hammond, 1 Atk. 13 ; 
 
 (x) Mackay v. Douglas, L. R. 14 Eq. Townskend, Lord, v. Windham, 2 Ves. 
 
 106; Ex parte Russell, 19 Ch. D. 11,12. 
 
 when in debt.
 
 BY PERSONS INDEBTED. 
 
 37 
 
 doubtless, stand; but it can hardly be thought that the per- 
 formance, when indebted, of a mere voluntary agreement 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 constructive or 
 presumptive fraud under the statute : first, the conveyance must 
 be voluntary ; secondly, the conveyer must be indebted. 
 
 The question what conveyances are voluntary will be hereafter 
 discussed (a). 
 
 The subject of this chapter is, the nature of the indebtedness What is 
 which vitiates such a transaction. In TovmsJmid v. Windham (b) '"^eltedn.jss? 
 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. Haynmond (c) 
 the same learned judge observed, that the only voluntary con- 
 veyances 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 " (e) simply. What is meant 
 
 . , ,„..„. . . , 1 • ty the word 
 
 Without any definition oi its precise meaning, and several varymg "indebted'' 
 decisions have resulted from different interpretations of his words. Lord Hard- 
 Sir R. P. Arden (/) thought the debtor must be in insolvent cir- "^icke, &c. 
 cumstances, and in this he was followed by Lord St. Leonards ((/) ; 
 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 transfer, and remaining unsatisfied, is 
 
 (s) See Houghton v. Tate, 3 Y. & J. same sense in Wor»leij v. Demattos, 1 
 
 486 ; and see post, pt. v. ch. i. Burr. 468. 
 
 {a) Post, pp. 248 et seq. (/) In Lush v. Willdnson, 5 Ves. 384. 
 
 {h) 2 Ves. 1, 10. See also Shears v. Rogers, 3 B. & Ad. 
 
 (c) 1 Atk. 13. 362 ; Norcutt v. Dodcl, Cr. & P. 100 ; 
 
 {d) 1 Atk. 94. Skarfv. Soulhy, 1 M. & G. 364. 
 
 (e) The word is used in precisely the {g) Martyn v. McNamara, 4 D. & 
 
 War. 427.
 
 38 VOLUNTARY CONVEYANCES 
 
 enough to avoid the transfer (h). But, as Lord Cottenham 
 said (i), the word " indebted," as used by Lord Hardwicke in 
 these cases, cannot be considered as meaning only that the settlor 
 owed some debts. It must be remembered 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 particular state of 
 circumstances (k) ; and therefore the question is never, whether 
 there is any one circumstance which has in other cases been 
 looked upon as an argument against the deed (/), 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 
 creditors by placing the property out of their reach (in). 
 
 If settlor owes In the absence of any such direct proof of intention, if a 
 
 debts, and ve- 
 
 cessary result pcrson oiuing debts makes a settlement which subtracts from the 
 
 to defeat exis- Property which is the proper fund for the payment of those 
 
 Co^rt'^'^ f""'^' d^btS' ^^ amount without which the debts cannot be paid, then, 
 
 fraudulent since it is the necessary consequence of the settlement that some 
 
 intention. 
 
 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 property left out of settlement is 
 ample to pay all debts then owing (o). 
 
 pjile for But where a debtor sells property for an adequate consideration, 
 
 ful value. 
 
 no one is injured {p), for his estate is not diminished by the 
 
 (//) Porter v. Boyle, 3 Law Eec. 181, {n) Freeman v. Pojoe, L. E. 5 Ch. 
 
 365 ; Spirett v. Willoics, 3 D. J. & S. 538 ; Taylor v. Cremer, 1 Ch. D., 636 ; 
 
 293 ; Freeman v. Pope, L. R. 5 Ch. 538. Be Ridler, 22 Ch. D., per Cotton, L.J., 
 
 And see post, p. 46 et seq. 82 ; Ex parte Chaplin, 26 Ch. D. 319; 
 
 (i) In *S/tar/v.>S'o2<%,l Mac. &G. 374-5. In re 3Iaddever, 27 Ch. D. at p. 526; 
 
 (A-) See the preamble and operative Green v. Paterson, 32 Ch. D., per 
 
 part: Appendix No. 1. Cotton, L.J., 105; post, p. 50; but see 
 
 (/) See Clements v. Eccles, 11 Ir. Eq. Ex jiarte Mercer, 17 Q. B. D. 290; 
 
 229, 237. post, p. 74. 
 
 (to) Richardson v. Smallwood, Jac. (o) Kent v. Riley, L. R. 14 Eq. 190 ; 
 
 552 ; Thompson v. Webster, 4 Drew, at ^^llite v. Witt, 24 W. R. 727. 
 p. 632 ; In re Johnson, 20 Ch. D. 389, {p) Copis v. Middleton, 2 ]\Iad. 430 ; 
 
 S. C. 51 L. J. (N.S.) Ch. 603; Ex parte and see In re Johnson, 20 Ch. D., per 
 
 Chaplin, 26 Ch. 1). 319 ; Ex parte Mer- Fry, J., 397. 
 cer, 17 Q. B. D. 290.
 
 BY PERSONS INDEBTED. on 
 
 transaction ; he still has as large a fund as he before had for the 
 satisfaction of claims, though in another form. 
 
 Lord Langdale, in Townscnd v. Westacott (q), put the rule as Townsendy. 
 to what is indebtedness on its true principle, and has been ^';^'«^«"- 
 repeatedly followed and approved. He said that the real and .^.tb'tEdnLV' 
 just construction of the statute does not warrant the proposition 
 that the existence of a7iy debt at the time of the execution of the 
 deed was sufficient to induce the Court to set it aside ; because 
 there is hardly any man who can avoid being indebted 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 
 contrary 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 intention. 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 inconsistent with the principle of the Act and with the 
 judgments of the most eminent judges. 
 
 It is not, then, necessary to shew actual insolvency, but the Insolvency 
 mere existence of a debt at the time of the settlement is not ""^ i"-'*^e!>8ary. 
 sufficient (s) ; so that proof of isolated debts is not what is One debt not 
 required, except so far as they are material as evidence of an^"°"^'' 
 intention to defraud creditors, 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 indebted 
 to the extent of insolvency, or that he became so by the 
 abstraction of the property comprised in the settlement (/), this 
 is enough to invalidate the settlement. 
 
 (fj) 2 Beav. 340, 344. See Sir E. T. worthy, L. K. 12 Eq. 167 ; Kent v. 
 
 Kindersley's judgment to the same effect Riley, L. R. 14 Eq. 190. 
 
 in Thomjoson v. Webster, 4 Drew. 628, (0 /Smith v. Cherrill, L. R. 4 Eq. 
 
 632. 390, 395 ; Hollamby v. Oldrieve, W. N. 
 
 {r) See infra. (1866) 94 ; Denison v. Tattersall, 18 
 
 is) Cottenham, L.C., in Sl;arf v. L. T. (N.S.) 303; Freeman v. Pope, 
 
 Suulhy, 1 H. & Tw. 4->G; and see L. R. 5 Ch. at p. 545 ; Twyor v. rbeweH, 
 
 Kidney v. Coussmnher, 12 Ves. 148. In 1 Ch. D. per Malins V.C., at pp. 641, 642 ; 
 
 Tiryne's Case, 3 CIo. 81 b, the expression Ex parte Huxtahle, 2 Ch. D. 54 ; Ex 
 
 is " greatly indebted ;" Crossley v. El~ parte Bmsell, 19 Ch. D. 5SS.
 
 40 VOLUNTARY CONVEYANCES 
 
 Presumption The extent of indebtedness fatal to a voluntary conveyance as 
 hitention from against creditors may shortly be stated as that from which it 
 emban-assed ^^^^^^ -^^ presumed that the intention of the donor was, not to 
 
 circumstances ^ 
 
 of settlor. 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 intention " (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 i;iv). 
 
 Sir W. Fortescue, also, in Taylor v. Jones (a;), said : " It is not 
 material in the present case what the circumstances 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 Freeman v. Pope (y) 
 that, if at the date of the settlement the person making the settle- 
 ment was not in a position actually to pay his creditors, the law 
 would infer that he intended by making the voluntary settlement 
 to defeat and delay them (2). 
 
 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 from all the circumstances of 
 
 (u) Skarf V. Soulhy, 16 Sim. 344, {x) 2 Atk. 600-602. 
 
 S. C. 1 Mac. & G. 364; Holloivay v. (y) L. E. 5 Ch. at p. 545. 
 
 Millard, 1 Mad. 414; Kent v. Eiley, (s) See Tlrn/Zor v. Coe?ien, ICh.D. p. 641. 
 
 L. E. 14 Eq. 190 ; White v. Witt, 24 (o) See Freeman v. Pope, L. E. 5 Ch. 
 
 "W. E. 727. 538, 540; Crossley v. Abcortliy, L. E. 12 
 
 (v) 3 K. & J. 90, 99. Eq. 158 ; 3Iackay v. Douglas, L. E. 
 
 {iv) See also per Sir E. T. Kindersley 14 Eq. at p. 120; Cornish y. Clark, L.'R. 
 
 in Thompson v. Webster, 4 Drew. 628, 14 Eq. 184; In re Pddler, 22 Cb. D. 
 
 632 et seq. ; Freeman v. Pope, L. E. 9 74; In re Maddever, 27 Ch. 1)., per 
 
 Eq. 206, S. C. L. E. 5 Ch. 538. North, J., 526.
 
 BY PERSONS INDEBTED. 
 
 41 
 
 the case that the effect might be expected to be, and has in fact 
 been, to do so, and that it is not within the proviso (h), the 
 Court will attribute the fraudulent intention to the person exe- 
 cuting the deed (hh). It lies on the settlor to prove that he was not 
 only solvent, but in a position which justified his making a volun- 
 tary settlement (c). Where the settlor is shewn to have been Whetlicr in 
 indebted, he must be taken to have known the state of his circum- fj^^ Jj""'" *"* 
 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 other purpose Fraud over- 
 appears, this is sufficient of itself to bring the case within the colSdeJati'ons. 
 statute, and to override all 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 
 settlor, 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 creditors was evidenced by the trust in 
 his own favour (e). 
 
 The cases (/) in which it has been said that it is necessary to insolvency 
 shew that the voluntary settlor was insolvent may be, in a great ^ou" ^ pro- 
 measure, reconciled with these authorities by interpretincj the word P^^y !'^'!^ 
 
 J i- >^ unsettled for 
 
 " insolvent " in the sense given to it in Jackson v. Boivley {g), where payment of 
 a voluntary assignment made by a testator in his lifetime was 
 impeached by a creditor, in an action against the executor, on the 
 ground of fraud, suggesting, as proof of fraud, that the testator 
 was insolvent when he made the assignment. Mr. Justice Erskine, 
 in summing up, said : " The question is, what is meant by insol- 
 vency ? If by the act of assignment the party makes himself 
 
 (6) 13 Eliz. c. 5, s. 6. See post, pp. 78 at p. 164 ; 31ackay v. Douglas, L. R. 
 
 et seq. 14 Eq. at p. 119; Taylor v. Coenen, 1 
 
 (bb) Smith v. Cherrill, L. R. 4 Eq. 390 ; Ch. l3. G36. 
 
 Cornish v. Clark, L. R. 14 Eq. 184 ; (d) Christy v. Coiirtenay, 13 Beav. 96, 
 
 Spencer v. Slater, 4 Q. B. D. 13; In re 101. 
 
 Ridler, 22 Ch. D., per Cotton, L.J., at p. (e) Acraman v. Corbett, 1 J. & H. 
 
 82; Ex parte Chaplin, 26 Ch. D. 319; 410, 423; Taylor v. Coenen, 1 Ch. D. 
 
 Green v. Paterson, 32 Ch. D., per Cotton, 636 ; In re Pearson, 3 Ch. D. 867 ; and 
 
 L.J., 105 ; ante, p. 38 ; but see Ex parte see Learmouth v. Miller, L. R. 2 II. L. 
 
 Mercer, 17 Q. B. D. 290. Sc. 438. 
 
 (c) Taylor v. Jones, 2 Atk. 600, 603 ; (/) lush v. Wilhinson, b Ves. 384 ; 
 
 Denison v. Tattersall, 18 L. T. (N.S.) and other cases, ante, p. 37. 
 
 303 ; Croasley v. Elworthy, L. R. 12 Eq. (g) Car. & M. 97.
 
 42 
 
 VOLUNTARY SETTLEMENTS 
 
 Test whether 
 voluntar}- 
 settlement 
 void under 
 Bankruptcy 
 Act, 1869, 
 
 or under 
 Bankruptcy 
 Act, 1883. 
 
 Yohintary 
 
 settlements 
 
 within two 
 
 A ears of 
 
 bankruptcy 
 
 absolutely 
 
 void 
 
 insolvent — that is, if the property left after the conveyance is not 
 enough to pay his debts — that is insolvency sufficient for the pur- 
 poses 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 
 liis existing debts and liabilities (z), and such property must be 
 then actually available assets for that purpose {k). 
 
 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 settlement {I) ; that is to say, the settlor must 
 have been able without such property to pay his debts out of 
 actually available assets in the way in which he proposed to pay 
 them — that is, by continuing his business (/»). 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 traders or non-traders ; 
 and in addition to uphold the settlement it must be shewn that 
 the interest of the settlor in the property passed to the trustee of 
 the settlement on the execution thereof. 
 
 The 47th section enacts that "any settlement of property not 
 being a settlement made before and in consideration of marriage, 
 or made in favour of a purchaser or incumbrancer in good faith 
 and for valuable consideration, or a settlement made on or for the 
 wife or children of the settlor of property which has accrued to 
 the settlor after marriage in right of his wife, shall, if the settlor 
 
 [h] See also per Lord Tenterden, in 
 filiears v. Rogers, 3 B. & Ad. 362, 360 ; 
 and Clements v. Ecdes, 11 Ir. Eq. 237. 
 
 (i) Freeman v. Pope, L. R. 5 Cb. at p. 
 545 ; Kent v. Riley, L. R. 14 Eq. 190 ; 
 Taylor v. Coenen, 1 Ch. D. 636; AV: 
 prtrtc Fhij-t'tUe, 2 Th. D. 54. As to how 
 to estimate these, see post, pp. 57 et seq. 
 
 (/.-) Ex parte Russell, 10 Ch. D. 588 ; 
 In re Ridler, 22 Ch. D. 74. 
 
 (/) Ex parte Hurtahle, 2 Ch. D. 54 ; 
 and see 32 & 33 Vict. c. 71, s. 91. 
 
 {m) Ex parte Rmsell, 19 Ch. D. 
 588. 
 
 (h) 46 & 47 Vict. c. 52, repealin;; 
 32 & 33 Vict. c. 71 ; see schedule 5.
 
 UNDER BANKRUPTCY ACTS. 4-. 
 
 becomes bankrupt within two years after tl.e date of tlie settle- 
 ment, be void against the trustee in the bankruptcy, and sliall if 
 the settlor becomes bankrupt at any subsequent time within ten W.hin ..-n 
 years after the date of tlie settlement, be void against the trustee ^' '"* '"'''"'''''• 
 in the bankruptcy, unless the parties claiming und^'er the settlement 
 can prove that the settlor was at the time of mahinc, the scttlnncnt 
 able to pay all his debts witliout the aid of the property eomprised 
 in the settlement, and that the interest of the settlor in such pro- 
 perty had passed to the trustee of such settlement on the execution 
 thereof. Any covenant or contract made in consideration of 
 marriage for the future settlement on or for the settlor's wife or 
 children of any money or property wherein he had not at the 
 date of his marriage any estate or interest, whether vested or 
 contingent, in possession 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 covenant, 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 exception Saving of 
 is made in favour of all and any dealings with the bankrupt for Fo'/vahrwith- 
 valuable consideration before the date of the receivin'^ order bv a *'"' """'^'^• 
 person who has not then had notice of any available act of bank- 
 ruptcy committed by the bankrupt before that time. 
 
 In section 91 of the Act of 1869 the word purchaser was held to p„rclia.er, 
 mean a buyer in the ordinary commercial sense, and not a purchaser B^nir""'!" 
 in the legal sense, of the word ; so that a trustee of a post-nuptial ^''^■ 
 settlement of leaseholds, though liable to pay the rent and perform 
 the covenants in the lease, was not a purchaser for value within 
 the section (0). The same meaning will apply in section 17 of the 
 Act of 1883. 
 
 It has been held (79) that the Act of 1869, section 91, applied Bankruptcj 
 to settlements executed before as well as after tlie Act came into gp^cti^e."^ 
 operation. The corresponding section of the Act of 1883 {q) will 
 be also, it is conceived, deemed to be retrospective. 
 
 (o) Er parte ffillmav, lU Ch. D. 622 ; (;)) Erpnrtc Dairson,\.. T\. 10 Idj. loJ. 
 
 In re liidler, 22 Ch. D. 74. {q) AQ, & 47 Vict. c. 52, s. il.
 
 44 
 
 VOLUNTARY SETTLEMENTS 
 
 Covenant. 
 
 Casefl section 
 47 will cover. 
 
 A covenant by a trader, in a settlement in consideration of mar- 
 riage, 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 mar- 
 riage, withdraw from his creditors any future property 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, 
 
 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 settlor in the pro- 
 perty passed 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 Bisliop (s), where a covenant is contained in a post- 
 nuptial or other voluntary settlement to pay a sum of money or to 
 transfer securities 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 sec- 
 tion 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 settlement is voluntary. In that 
 case a trader by ante-nuptial 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 to be divested by an appointment, it 
 was not within section 91. 
 When A settlement, however, may still be voluntary, and, whether 
 
 TtUemeDt ^^^^dc by a trader or a non-trader, if only it is not impeached 
 pood under within ten years of the date of its execution, will be a good settle- 
 Act's ;TutLt ment under the Bankruptcy Act ; but under the statute of Eliza- 
 of SLabeth.^ beth such settlement is liable to be impeached at any time, until the 
 le^al right of the creditor is barred by the Statutes of Limitation (w). 
 
 (r) Ex parte BoUand, L. R. ] 7 Eq. 115. 
 («) L. K. 8 Ch. 718. 
 
 (t) 7 Cli. D. 635. 
 
 («) Ante, p. 42 ; post, pp. 96, 184.
 
 KNOWLEDGE OF VOLUNTEERS. 45 
 
 In cases of voluntary conveyances it matters not wliotlior or i„ volunfnry 
 not the donee liad knowledge or notice of tlie fraudulent intent, for co"vi;v.u,c.;(; 
 they are not within the exception in favour of bouci fide purchases "/"'^orls"^ " 
 by persons " not having, at the time of such conveyance or assurance ""'^*-""'- 
 to them made, any manner of notice or knowledge of such covin, 
 fraud, or collusion " (iv). Where the conveyance is voUmtari/ 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 (?/), 
 But the Court will not allow a volunteer 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 (s). 
 
 A voluntary settlement may, however, be rendered void Ijy 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 settlement was Voluntary 
 not executed under such circumstances as to shew that fraud was when"good. 
 intended, or to induce the presumption of such intention, the mere 
 fact of its being voluntary, and not even supported by meritorious 
 considerations (b), will not make it void against creditors, either 
 existing or future (c). 
 
 (w) 13 Eliz. c. 5, s. 6 ; post, pp. 78 et (c) Townshend v. Wirulham, 2 Ves. 
 
 seq. 1, 11, ante, p. 15; Eussel v. Ham- 
 
 {x) Per Lord Northington in Part- mond, 1 Atk. 13 ; Towiisend v. Westa- 
 
 ridge v. Gopp, 2 Amb. 596 ; Maclcay v. cott, 2 Beav. 340 ; Skarf v. .'^huWy, 1 
 
 Douglas, L. E. 14 Eq. 106. The same is Mac. & G. 364, 374-375 ; Battershee v. 
 
 the law in America. See Bump. Fr. Farringtnn, 1 Sw. 106 ; HoUoiray v. 
 
 Conv. (Amer.), 2nd ed. 263. 3liUard, 1 Mad. 414-418 ; Lilig v. 
 
 (y) So by the civil law : " Cui dona- Oshorn, 3 P. Wms. 298 ; Martj/n v. 
 
 turn est ... . nee videtur affici injuria McNamara, 4 D. & War. 427 ; TItomp- 
 
 is qui ignoravit, cum lucrum extorqueatur son v, Webster, 4 Drew. 628 ; Exton v. 
 
 non damnum infligatur." Dig. lib. 42, Scott, 6 Sim. 31 ; French v. French, 6 De 
 
 tit. 8, par. 6, sec. 11. Gr. M. & G. 95, 101 ; Clements v. Eccles, 
 
 {z) Tarleton v. Liddell, 17 Q. B. 390, H Ir. Eq. 229, 237 ; Gvgen v. Sampson, 
 
 4 De G. & Sm. 538. 4 F. & F. 974 ; post, pp. 61 et seq. : contra, 
 
 (a) Cornish V. CZarA', L. R. 14 Eq. 184. Forter v. Boyle, 3 Law Rec. 181, 365; 
 
 (b) Holloway v. Millard, 1 Mad. 414, Spirett v. Willows, 3 D. J. & S. 293 ; 
 418 ; Kent v. Biley, L. Pi. 14 Eq. 190. Kent v. Rile7j, L. R. 14 Eq. 190 ; ante, p. 36.
 
 46 VOLUNTARY SETTLEMENTS 
 
 For, as Lord Hardwicke said in Walker v. Burrmvs (d), " Wliere 
 a man has died indebted, who, in liis lifetime, made a voluntary 
 settlement, upon application 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 Hardwicke used the word " indebted " 
 as meaning " embarrassed." 
 
 Justice of tlie The distinction, says Fonblauque, is drawn from considerations 
 doctrine. ^^0 ob\-iou3 to require illustration. For if a man " indebted " were 
 
 allowed to divest himself of his property in favour of his wife or 
 cliild, 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 possibility he might afterwards 
 become indebted, it would destroy those family provisions which 
 are, under certain restriction.s, a benefit to the public, as well as to 
 the individual objects of them (/). 
 
 Spiretf V. This long-scttled doctrine received a shock from the 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 voluntary settlement made by a settlor 
 then solvent. The settlor had spent all his other assets after the 
 making of the settlement, and before the debt fell due. Lord 
 Westbury, 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 settle- 
 ment 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 con- 
 clusions are well founded. If the debt of the creditor by whom 
 the voluntary settlement is impeached existed at the date of the 
 settlement, and it is shewn that the remedy of the creditor is 
 defeated or delayed by the existence of the settlement, it is 
 
 (d) 1 Atk. 94. Eq. 190 ; White v. Witt, 24 W. R. 727 ; 
 
 (e) Holloiray v. Millard, 1 Mad. ante, p. .36. 
 
 414, 419 ; Walker v. Bnrroirx, 1 Atk. (^f) 1 Fonbl. Eq. 270. 
 
 93-4; Murphy \. Abrahams, 1.5 Ir. Ch. (g) 3 D. J. & S. 302. 
 
 Rep. 371-378; Kent v. JMky, L. R. 14
 
 AS AGAINST EXISTING DEBTS. 47 
 
 immaterial whether the debtor was or was not solvent after makinf^ 
 the settlement." 
 
 " It is obvious that the fact of a voluntary settlor retaining 
 money enough to pay the debts which he owes at the time of making 
 the settlement, but not actually paying them, cannot give a diHerent 
 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 Sjnrett v. Willows (h) was directly opposed to Spirni v. 
 several cases in which a voluntary settlement has been supported, H^j!"^'^' *^°"' 
 notwithstanding a prior debt remaining unsatisfied (i), and to tlie 
 principle of those cases in which it has been held that a single debt 
 at the time of the settlement would not do (/•) ; and that the settlor 
 must be shewn to have been so largely indebted as to induce the 
 presumption of a fraudulent intention, and that a man may 
 make a good voluntary settlement though indebted to some 
 extent (/), and that " it would be absurd to suppose that a person 
 worth £10.000, and settling £1000, such settlement could be im- 
 peached" (m). 
 
 In Freeman v. Pope (71), where a voluntary settlement of a policy Freeman v. 
 of insurance on the settlor's life was made by a settlor really in- ^^' ' 
 solvent at the time of making it, and not in a position to make 
 any settlement whatever, the case of Spirctt v. Willows (0) was 
 considered by Lord Hatherley, L.C., and Sir G. M. Giffard, L.J. 
 It was there said by Lord Hatherley, L.C. : 
 
 {h) 3 D. J. & S. 293. Holmes v. Penney, 3 K. & J. 90 ; Toicnn- 
 
 (i) East India Co. v. Clare!, Free. Ch. end v. Westacott, 2 Beav. 340 ; Turnley 
 
 377, Gilb. Rep. 37 ; Thompson v. Webster, v. Hooper, 3 Sm. & Giff. 349 ; ante, pp. 
 
 4 Drew. 628 ; Turnley v. Hooper, 2 .Tur. 37 et seq. ; 1 Fonbl. Eq. 279. 
 
 (N.S.) 1081 ; Exton v. Scott, 6 Sim. U ; {I) Ibid. 
 
 Manders v. Manders, 4 Ir. Eq. 434. {m) Per Lord Cninworth in Frenrh v. 
 
 (Jc) Lush V. Wilkinson, 5 Ves. 384 ; French, 6 De G. M. & G. 95, 101 ; see also 
 
 Kidney v. Conssmaker, 12 Ves. 148 ; Dewey v. Bayntun, 6 Kaaf, 257 ; Cle- 
 
 Shears v. Rogers, 3 B. & Ad. 362; ments w. Eccles, 11 Ir. Eq. 229, 236-7; 
 
 Martyn v. McNamara, 4 U. & War. post, p. 55. 
 
 411, 427 ; Skarfv. Soulby, 1 Mac. & G. («) L. R. 5 Ch. 540, 541 ; but see Ex 
 
 374-5 ; Jackson v. Boioley, Car. & M. parte Mercer, 17 Q. B. D. 290. 
 
 97 ; Richardson v. Smallwood, Jac. 552 ; (o) 3 I). J. & S. 293.
 
 48 " VOLUNTARY SETTLEMENTS. 
 
 iiinrett v. " Of coursG there may be cases — of which Spirett v. Willmos (p) 
 
 explained as is an instance — in which there is direct and positive evidence of an 
 a case of plain intention to defraud independently of the consequences which may 
 dLtVaud. have followed, or which might have been expected to follow, from 
 
 tlie act. In Spirett v. Willoivs (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 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 established by the authori- 
 ties that, in the absence of any such direct proof of intention, 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 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." 
 
 It was also there said by Sir G. M. Giffard, L.J. : 
 
 The law as " I^^ this case I quite agree with the Vice-Chancellor in thinking 
 
 'vi^** -?T" ^'^ that if the propositions laid down in ^S/Jirt'iJif V. Willoivs are taken 
 Willows too as abstract propositions, they go too far, and beyond what the law 
 is ; but if they are taken in connection with the facts of that case, 
 then, undoubtedly, 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 afterwards realized the rest 
 of his property and denuded himself of everything. Of course 
 the irresistible conclusion from that was, that the voluntary settle- 
 ment was intended to defeat the subsequent creditors. That being 
 so, I do not think that the Vice-Chancellor need have felt any difh- 
 culty about the case of Spirett v. Willoivs, but he seems to have con- 
 sidered that, in order to defeat a voluntary settlement, there must 
 
 (2>) 3 D. J. & S. 293. 
 
 •wide.
 
 AS AGAINST EXISTING DEBTS. 41) 
 
 be proof of an actual and express intent to defeat creditors. Thai, 
 however, is not so. There is one class of cases, no doul)t, in which 
 an actual and express intent is necessary to be proved — that is, in 
 such cases as Holmes v. Penney (2-) and Lloyd y. Alt wood (?•), where 
 the instruments sought to be set aside were founded on valuable 
 consideration ; but where the settlement is voluntary, 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, sufhcient available assets are not left for the payment 
 of the settlor's debts, then the law infers intent, and it would 1)0 
 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 
 defeat 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 tlie 
 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 cases, 
 and it is enough to say that at the date of this settlement Mr. 
 Custance was not in a position to make any voluntary settlement 
 whatever." 
 
 The judgment of Lord Westbury in Sinrett v. Willovjs (s) may Rule laM 
 
 1 • -I ^ 1 1 1 iiTiij.i- down Ipv I.orvl 
 
 now, it is submitted, be taken merely to have established this pro- WestbuVy. 
 position — 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 West- 
 bury (u) was dissented from in Freeman v. Fo2)e (v), which has been 
 repeatedly followed. The principle of law seems now firmly estab- 
 lished, and is this. 
 
 A valid voluntary settlement may now be made by a settlor 
 
 (q) 3 K. & J. 90. (i) See Freeman v. Pope, L. R. 5 c:ii. 
 
 (r) 3 De G. & J. 614. at p. 545. 
 
 (,s) 3 D. J. & S. 293. («) 3 D. J. & S. at p.' 302. 
 
 {v) L. R. 5 Cli. 538.
 
 50 
 
 VOLUNTARY SETTLEMENTS 
 
 True 
 principle now. 
 
 Same in 
 America and 
 Upper Canada. 
 
 Intention of 
 settlor at the 
 time. 
 
 Bona fide 
 
 voluntary 
 
 deed good 
 
 against 
 
 subsequent 
 
 creditors. 
 
 Inquiries 
 directed only 
 when previous 
 debt proved. 
 
 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 (iv), or not {x). 
 
 The same is the law in America (?/), and also in Upper Canada (yy). 
 
 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 (z) ; and that a 
 voluntary settlement by a person not deeply indebted, and not with 
 a fraudulent intention, is good, although the settlor afterwards 
 becomes indebted (a). But a voluntary settlement made in 1858, 
 by a settlor owing no debts at the time, and not a trader till 1873, 
 which gave the settlor a life estate determinable on bankruptcy, was 
 held fraudulent within this statute, because it so dealt with his 
 property as to disappoint the just claims of his creditors (h). 
 
 Again, it has been laid down that no inquiry as to the state of 
 the settlor's circumstances when he made the settlement will be 
 directed unless a debt at that time can be proved (c) ; in one case 
 an inquiry was refused, although a small debt owing at the date of 
 the settlement was in evidence (d). But in Taylor v. Cocnen {e), 
 
 (u-) Freeman v. PajK, L. K. 5 Ch. 538, son, 20 Ch. D. at p. 394, S. C. 51 L. J. 
 supra, p. 47 ; Kent\. Riley, L. R. 14 Eq. 
 190 ; Ex parte HuxtaUe, 2 Ch. D. 54; but 
 BeeSpirett v. WiUous, 3 D.J. & S. at p. 302. 
 
 (a;) In re Ridler, 22 Ch. D. 74. 
 
 ()/) Bump.Fr.Conv. ( Amer.), 2nd ed. 275. 
 
 (uy) O'Doherty v. The Ontario Banlc, 
 32 C. P. 285. 
 
 {z) See Stone v. Gruhham, 2 Buls. 
 225; Nunn v. Wilsmwe, % T. K. 521 ; 
 Meux v. Howell, 4 East, 1 ; Taylor v. 
 Jones, 2 Atk. 600, 602-3; Wrixon v. 
 Cotter, 1 Ridgw. P. C. 302 ; Graham v. 
 Furher, 14 C. B. 410 ; Richardson v. 
 Smallwood, Jac. 552 ; Henderson v. 
 Lloyd, 3 F. & F. 7 ; Holt v. Kelly, 13 Ir. 
 I>. Rep. 33; Ware v. Gardner, h. R. 7 Eq. 
 317; and by the civil law there was the same 
 kind of intention inferred from the circum- 
 stances : " Quamvis non proponatur con- 
 silium fraudandi habuissc, tamen qui credi- 
 tores habere so scit et universa bona sua 
 alienavit, intelligendvs est fraudandorum 
 creditorum consilium habuisse." Dig. lib. 
 42, tit. viii. par. 17, sec. 1 ; and see Sir K. 
 T. Kindersley'sjudgment in Thompson v. 
 Wehter, 4 Drew. 628, 632 ; In re John- 
 
 (N.S.) Ch. 503 ; In re Maddever, 27 Ch. 
 D. 523 ; Ex parte Mercer, 17 Q. B. D. 290. 
 
 {a) Per Lord Hardwicke in Rmsel v. 
 Hammond, 1 Atk. 13 ; Walher v. Btir- 
 rows, 1 Atk. 94 ; and Toionshend v. 
 Windham, 2 Ves. 1, 10; Sir Lloyd 
 Kenyon in Stephens v. Olii^e, 2 Bro. C. C. 
 90 ; and Sir T. Plumer in Ilolloway v. 
 Millard, 1 Mad. 418 ; Clements v. Eccles, 
 11 Ir. Eq. 229, 237 ; Gugen v. Sampson, 
 4 F. & F. 974 ; Crossley v. Elicorthy, 
 L. R. 12 Eq. 167 ; Mackay v. Douglas, 
 L. R. 14 Eq. 121 ; Kent v. Riley, L. R. 14 
 Eq. 190 ; White v. Witt, 24 W. R. 727 ; 
 ante, p. 36. 
 
 (6) In re Pearson, 3 Ch. D. 807, post, 
 p. 68 ; see Learmouth v. Miller, L. R. 2 
 H. L. Sc. 438. 
 
 (c) lAi.sh v. Wilkinson, 5 Ves. 384 ; 
 see 12 Ves. 148 ; Norcutt v. Dodd, Cr. & 
 P. 100; Sl-arfv. Soulby, 1 Mac. & Cx. 
 364 ; Holloway v. Millard, 1 Mad. 414 ; 
 post, pp. 516-518. 
 
 {d) Manders v. Manders, 4 Ir. Eq. 
 Rep. 434. 
 
 (e) 1 Ch. D. 636.
 
 AS AGAINST EXISTING DEBTS. 51 
 
 althougli there was no proof that any clel)t was contracted before 
 tlie date of tlie first of two vohintary settlements, inquiries were 
 directed as to the state of tlie settlor's aflairs at tJie date of each of 
 those settlements. 
 
 Where, at the time when the settlement was made, there Pan crc.liu.ni 
 remained property, not included in it, ample and available for the ^'tf,r^'^ \^ 
 payment of debts (/), and no special circumstances of fraud, bow ''''"■" '''« 
 
 . , •1.1, T . , Bcttlor waH 
 
 can it be said that any creditor was either defrauded or delayed Ijy tlien .ii.i- to 
 the settlement ? If he had at once taken steps to recover the debt*? '"" 
 amount due to him, the settlement would have been no obstacle to 
 his getting his money ; but if he neglects to do that, and waits 
 until, by a reverse of circumstances, the settlor becomes em- 
 barrassed, it is his own laches, and not the settlement, which has 
 prevented him from being paid in full {g). 
 
 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 payment 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 (It). If they are" so entitled, and cannot 
 get such a payment, the settlement is fraudulent and void against 
 them. 
 
 . There is a special class of cases, in which voluntary settlements Seitlements 
 made by persons who shortly afterwards go into trade have been to trade of 
 held fraudulent and void within the statute. '',''"'•' "^^•""' 
 
 of property 
 void. 
 
 The princij)le of the decisions is that a man who is about to 
 engage in a hazardous business is not entitled, lohether ovnng any 
 
 (/) See the Bankruptcy Acts, 1869, Bro. C. C. 156 ; Bailey v. Gould, 4 Y. & 
 s. 91, 1883, s. 47; ante, pp. 42, 43, 50 ; C. Ex. Ca. 221 ; Poicell v. Evans, 5 Ves. 
 Kent V. Eiley, L. R. 14 Eq. 190 ; White v. 839 ; Caney v. Bond, 6 Beav. 486 ; Fen- 
 Witt, 24 W. R. 727. rinck v. GreenwcU, 10 Beav. 412 ; TiV*- 
 
 (r/) Clements y. Eccles,n Ir. Eq. 229, ner v. Smith, 3 Sm. & Giff. 42, 46; 
 
 237. Trustees, who are only bound to unless they can shew reasonable grounds 
 
 take the same care of property intrusted for believing that legal proceedinj^s would 
 
 to them as if it were their own (Morley have been useless : Hobday v. J'eters, 
 
 V. Morley, 2 Ch. Ca. 2 ; Jones v. Lewis, 28 Beav. 603. 
 
 2 Ves. 240), ought not to leave pro- (h) Freeman v. Pope, L. R. 5 Ch. 543, 
 
 perty outstanding on personal security, 545 ; In re Ridler, 22 Ch. D. 74 ; Green 
 
 and must, if necessary, commence legal v. Paterson, 32 Ch. D., per Cotton, L.J., 
 
 proceedings : Loicson v. Copeland, 2 105 ; ante, p. 50. 
 
 E 2
 
 52 SETTLEMENTS BY TRADERS 
 
 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. 
 Crossleji v. lu Crosslcy V. Elivorthy {%) a voluntary post-nuptial settlement 
 
 Ehcorthy. ^^^ made by the managing director of a company, who became 
 insolvent within nine months afterwards. 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 incurred 
 heavy liabilities as a surety for the company on a mortgage debt of 
 £35,000 as indorser, without consideration, of certain bills of 
 exchange drawn by the company, and then current, and in respect 
 of very large 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 K. Malins, V.C., held the settlement within the purview of the 
 statute and void against creditors. He there said : " Now, considering 
 that he (Air. 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 pro\ang insolvency, and 
 to throw upon Air. Elworthy the burden of proving that he was 
 in a position to make the settlement. The general policy of the 
 Act of 1 3 Eliz. c. 5, is, that those who are engaged in the transac- 
 tions of life, buying or selling, or otherwise indebted, are not, by 
 means of a voluntary settlement, to take their property out of the 
 reach of their creditors. If a man does, under such circum- 
 stances — 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 " (A;). After examin- 
 ing the state of the assets and liabilities, and citing the cases of 
 Tovmseiid v. Westacott (I) and Skarf v. Soulhy (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." 
 
 (i) L. R. 12 Eq. 158 ; and see Ware v. Gardner, L. R. 7 Eq. 317. 
 {k) CroHsley v. Elworthy, L. R. 12 Eq. (/) 2 Beav. 340. 
 
 at p. 164. ('») 1 Mac. & G. 304.
 
 OR MEN ABOUT TO TRADE. 5.*j 
 
 This decision has been followed in the cases of Mackay v. 
 Douylas (n), and In re Pearson (o), in which last case there was 
 no debt due at the date of the settlement still uiiiiaid, mid ulso in 
 Taylor v. Coenen (^j), where the settlement was of a very tritliri" 
 amount compared with the amount of the business. In Bx parte 
 Russell (q) the settlor's debts exceeded his available assets at the 
 date of his settlement, by which he settled substantially the whole 
 of his property upon his wife and children. It was held that thu 
 settlement was plainly void, because its object was to protect him 
 against the eventuality of bankruptcy — to save the property for his 
 wife and children in case the new business should not succeed (qq). 
 
 The mere fact of subsequent insolvency, if it does not result Tn«o!vcnry 
 from the conveyance, or if it could not be regarded as within the JeedTit'cMi.tl 
 contemplation of the settlor at the time of the conveyance will ""' '"'^'-' '^•'" 
 
 '' > foreseen. 
 
 not of itself avoid the deed. Thus, when a man is solvent at 
 the time of the settlement, but becomes insolvent the next 
 year by reason of some unexpected loss which he could not 
 have foreseen, such settlement will not on that account be held 
 void (?■). 
 
 So in America a voluntary settlement will be upheld, even if 
 the property left unsettled turns out to be inadequate 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, where the statute has been adopted, there has in America 
 
 .., T p ■, 1 ..,. iloctrine of 
 
 been a similar divergence from the general construction in this .s.nnit v. 
 respect in a case (t) where it was said that, if a person indebted i^f,S\7i 
 makes a voluntary settlement it is presumed to be fraudulent in f"™"""! nn<l 
 
 ■^ subscqiliiilly 
 
 respect to such debts (that is, those antecedently due), and no overmlci. 
 circumstance will permit those debts to be affected by it or repel 
 the presumption ; that the presumption does not depend on tlie 
 amount of debts or the extent of the property in settlement, or the 
 
 (/() L. R. 14 Eq. 106. See post, p. 65. 
 (») 3 ('h. I). 807. Seu p. 68. Cliy. 29; Bump. Fr. Conv. (Anier.), 2iiJ 
 
 (j,) 1 Ch. D. 636. ed. 310. 
 
 {,j) 19 Ch. D. .588: Sec post, p. 66. (r) Hdloumij v. Millard, 1 Ma.i. U » ; 
 
 [(in) This |)iiTiciplc ha.s been followed in Mdckan v. Dowjlas, L. K. 11 K'|- I-' 
 Ann;iie;i and Upper Canada : 7>«rZ7rn(rZv. (s) Bump. Fr. Conv. (Amer.), -'nd eJ 
 
 Rose, 7 Chy. 110 ; Kvuj v. Keating, 12 28.i, 286. 
 
 (t) Reade v. Livingston, 3 .Joli. Ch. Kep. 500.
 
 54 CIRCUMSTANCES OF SETTLEMENT. 
 
 circumstances of the party ; for to attempt a line of distinction 
 wuuld 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 settlor being indebted to a 
 small amount will not make a deed fraudulent even against 
 existing creditors ; but the fact of his being so deeply indebted as 
 to be insolvent without the settled property always makes his 
 voluntary settlement void against creditors (u). 
 
 Voluntary The Way in which a voluntary settlement is regarded with 
 
 judged by all rcspcct to all the circumstanccs of the settlor, may be seen from 
 efances Tthe I^OJ"^ Cranworth's remarks in Goldsmith v. Russell (v). In that 
 settlor. ^^gg ^^ jj^ ^l^g g^^^Q month in which the plaintiff obtained 
 
 judgment for his debt, and being otherwise largely indebted, con- 
 veyed 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 cu'cumstances 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 pre- 
 vious parol agreement ; this allegation was very loosely made ; it 
 seemed to have rested on understanding only ; it was not obli- 
 gatory, 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 judgment being entered up, and the story 
 as to money having 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 
 
 (w) Hinde's Lessee v. Lonf/n-orlh, 11 S. 0. 95, 19 L. T. (N.S.) 106; Bahcoch 
 
 Wbeaton, 199 ; Sea-ton v. Wheaton, 8 v. EcMer, 24 New York, 623 ; and Sedg- 
 
 Wheaton, 229, 230 ; Salmon v. Bennett, tniclc v. Flacc, 25 L. T. (N.S.) (Amer.) 
 
 1 Connect. Rep. 525, 548 ct Beq. ; Jack- 307. 
 
 son V. Town, A Cowen,.604; Verplank {v) 5 De G. M. & G. 547, 555. Sec also 
 
 V. Sterry, 12 Johns. (Amer.), 536 ; Hump. JiichurdKon v. Smallivood, Jac. .052, 557- 
 
 Fr. Conv. (Amer.), '2ml od.27;J, 274, 276; 558; Abbott v. Burbar/c,2 King. N. C. 
 
 1 Storj-, Eq. .lur. 12th ed. .%5, 362, 4U\ Freeman v. Pope, L. R. 5 Ch. 5^8 ; 
 
 364, 365 ; Richardson v. lihodus, 14 Rich. Ex parte Russell, 19 Ch. D. 688.
 
 PROPERTY WITHDRAAVN FROM CRElJIT(JH.S. 55 
 
 circumstances of the case, l.is hnxUhip came to the conchision 
 that tlie wliole transaction was a fraudulent contrivance concocted 
 when the settlement was made. 
 
 Tlie amount of property withdrawn by tlie settlement fmm A.no,.ni 
 liability to the claims of creditors must be taken into consider- Tal^L 
 ation ; for a person may, althougli indebted at the time, settle 
 some portion of his property, provided tliat enough is left for 
 satisfying his debts. Thus, it would be absurd to suppose that a 
 person worth £10,000 and settling £1000, such settlement could \h, 
 impeached; but if, having £10,000 and owing that amount, he 
 settled £5000, it would be clearly a fraud (iv). Policies of assur- 
 ance on the settlor's own life are securities for money undrr 
 1 & 2 Vict. c. 110 (x), and liable to be taken in execution tluring 
 the debtor's life and on his bankruptcy pass to his trustee. 80 
 a settlement of policies of assurance on the settlor's life was 
 declared fraudulent and void against his creditors within tliis 
 statute, and assets for payment of his debts (y). 
 
 So also in a trial by jury, it is material to submit to them the \'ali.,., &.-,. of 
 relative value of the property withdrawn from the reach of the J!Xd''[o"^ 
 creditors in projDortion to the amount of their demand at the l'"''!"'"'''^ '^ 
 time, and the value and tangibility of that substituted in its place, 
 in aid of the conclusion whether or not the deed was covinous 
 against them (z). For the purpose of having these facts inquired 
 into and fully stated to the jury, a new trial was granted where 
 the verdict had been given, founded on — 1. The previous embar- 
 rassment of the husband ; 2. The want of notoriety of the convey- 
 ance at the time ; 3. The want of an inventory ; 4. The continu- 
 ance of the husband in possession consistently with the deed, liuL 
 without notice of the change of property ; and 5. The appro- 
 priation by the husband to his own use of a part of the money 
 raised by the trustees of the settlement (a). 
 
 But where the effect of a settlement, made even by a jn-rsou 
 largely indebted, is not to withdraw any portion of the debtor's 
 
 (w) French v.FrencJt, 6 DeG.M.&G. (?/) See Taylor v. Coejien, 1 Ch. D. 
 
 95-101. See also Clements v. Erclen, 636, 641, 642 ; and Freeman v. Pope, 
 
 11 Ir. Eq. Rep. 229, 236-237 ; Kent v. L. R. 5 Cli. 538. 
 
 Biley, L. R. 14 Eq. 190; Taylor v. (;::) Deirey v. Bai/ntim, 6 Ea.st, 257, 
 
 Coenen, 1 Ch. D. 636. 282. 
 
 (x) Supra, p. 20. (o) Dewey v. Baynlun, 6 East, 2.>7.
 
 5G MERITORIOUS CONSIDERATION. 
 
 Settlement property fi'om the power of creditors, but merely to vary the 
 
 which Joes ir x ^ 
 
 not withdraw investment, this settlement will not be within the statute. Thus, 
 fVoro^cre^dTt.L w'here property was settled to such uses as the husband and wife 
 not fraudulent. g}^Q^i(j 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 was held that this second settlement was not 
 voluntary nor void against the prior creditors (b). 
 
 Meritorious The Court, in deciding questions on this statute, places convey- 
 
 or'no"a*vail'.'" f^^ccs ou mcritorious consideration on the same footing as those 
 Gift to which are purely voluntary (c). In fact, a gift to a relative is 
 
 \onwT "^^"^ frequently open to more suspicion than one to a stranger ; for 
 Huspicion than where a man, being greatly indebted to sundry persons, makes a 
 
 one to a _ _ . 
 
 stranger. gift to his SOU without Consideration, but only of nature, the law 
 intends a trust between them, scilicet, that the donee would, in 
 consideration of such gift being voluntarily and freely made to 
 him, and also in consideration of nature, relieve his father or 
 cousin, and not see him want who had made such gift to him (d). 
 For these reasons the Court feels bound to decide for creditors 
 against a wife and children ; for though it always has great com- 
 passion 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 reduced 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 (A). 
 
 So when a bona fide and honest instrument is executed for 
 which the consideration is partly meritorious and ])arlly valuable, 
 and the instrument is one between relatives, the Court cannot say 
 that the difference between the real value of the estate, and the 
 
 (b) Acraman v. Corbett, 1 J. & H. 410. (r/) Twyne's Case, 3 Rep. 81 b ; Corn- 
 See Jones v. Boulter, 1 Cox, 288. ish v. Clark, L. R. 14 Eq. 184. 
 
 (c) Strong v. Strong, 18 Beav. 408 ; {e) A provision for children is said to 
 IToUov-ay v. Millard, I Mad. 414, and be founded on an equitable consideration : 
 Bee In re Johnson, 20 Ch. D. 389 ; S. C. liigden v. Vallier, 2 Yes. 258. 
 
 61 L. J. (N.S.) Ch. 503. The same is (/) Taylor v. Jones, 2 Atk. 600-3. 
 
 the case in upper Canada, ^ec Merrttt y. (g) Copis v. Middleton, 2 Mad. 423; 
 
 Niles, 28 Ciiy. 346. In re Johnson, 20 Ch. D. 389. 
 
 (h) Per Lord St. Leonards, in JJoore v. Crofton, 3 J. & Lat. 443 ; post, p. 81, note {y).
 
 LIABILITIES OF SETTLOR. 
 
 57 
 
 consideration f,nven is ;i badge of fraud, and if il is not a Itad^c nf 
 fraud, or evidence of an intention t(j defeat creditors, it has no 
 relation to the case (i). 
 
 In examining the position of the settlor's affairs, the true test is, Lini.ilitinK 
 what is the nature and extent of liis liabilities at iJte time of la liaT^nf 
 making the settlement ? Those liabilities, wliether they consist »«-'"''-''"'-■"'• 
 of debts actually due, or soon due, or of merely remote and (mpu- 
 tingent liabilities, must be estimated as a reasonable and not 
 a sanguine man \vf)uld estimate them, taking a reasonable view of 
 what seems likely to happen (k). It seems at least doul)tful 
 whether a voluntary settlement of all the settlor's property, even 
 if not a trader, can in any case be supported against any even con- 
 tingent liability, if that liabdity ripens into an actual debt (/). 
 
 The question is varied also by the nature of the debt owing ; Nature of 
 the existence, for example, of a mortgage debt is of no import- b^'-^gcttu"^ 
 ance (m). The subsequent voluntary conveyance cannot possibly Mortgage debt 
 affect the mortgagee's rights ; for, if the mortgaged property is unc'e.'"'^'"'^ 
 comprised in the voluntary deed his claim is paramount to that 
 of the volunteers, whose right can only extend to the equity of 
 redemption, and if the settlement is of other property than tliat 
 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 con- 
 sidered 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 tlie P.anki-u|itcy 
 Act, 1869, s. 91, because the settlor thereby left out of settlement 
 an amount of assets insufficient to pay both the mortgage debt 
 
 (0 In re Johmon, 20 Ch. D., per Fry, J., 391, 397. 
 
 {h) Crossley v. Ehcorthy, L. R. 12 [m) >'Stephens v. OUre, 2 Bro. 0. C. 90 ; 
 
 Eq. 167; Ex parte Russell, 19 Cli. D. Lush v. WilUnson, 5 Ves. 384; Ji^nkyn 
 
 588; In re Ridler, 22 Ch. D. 74, 82; v. rttwfl'/m/i, 3 Drew. 419-42»i; VamUra 
 
 Ex]}arte Mercer, 17 Q. B. D. 290. v. Manders, 4 Ir. Eq. AM, 438; Ware 
 
 (I) In re Ridler, 22 Ch. D., per Sel- v. Gardner, L. R. 7 Eq. 317. 
 borne, L.C., 80.
 
 58 LIABILITIES OF SETTLOR 
 
 and his other debts ; though if the settlement had been of the 
 et|uity of redemption only, the settlor's other assets were ample 
 to pay his debts at the time of the settlement (?^). A mortgage 
 debt is not of itself a debt within the statute, though if the 
 property mortgaged 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 
 fallmg within the statute, so long as it is bona, fide — that is to say, 
 so long as the mortgagor does not retain any benefit for himself (p). 
 
 If the liabilities are due to large and very fluctuating trans- 
 actions 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 settlement of part of his pro- 
 perty, must be treated as one of his then existing debts (r). 
 
 So a merely contingent debt, as a covenant by a husband to 
 pay a sum of money to his wife if she survived him, has been 
 held enough to avoid a voluntary settlement (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 (t). 
 
 A guarantee given by a person who settles the bulk of his 
 property must be regarded as a contingent liability, 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 
 
 (h) Ex parte irnxtnhle, 2 Ch. T). 5i. (7) Crosdey v. Eluurllnj, L. K. 12 
 
 {o) Post, pp. 163, 164 ; Harman v. Eq. 164, 166. 
 JRirliards, 10 Uaro, 81, post, p. 269. (r) Denison v. Tulta;s<iU, 18 L. T. 
 
 {p) Middletm. v. Pollock, 2 Ch. D. 104 ; (N.S.) 303. 
 Ex parte Games, 12 Ch. D. 314. (.s) Rider v. Kidder, 10 Ves. 360. 
 
 (0 Ex parte Mercer, 17 Q. B. D. 290.
 
 AT DATE OF SETTLEMENT. jtj 
 
 the guarantor is the question whicli the Court considers. The 
 guarantee must not be regarded as a liability which mi-ht never 
 become a debt (?/-). 
 
 Indeed, it was said by Lord Justice Turner, in Goorhkhe v. 
 Taylor (v), that " Every surety must lie taken to contemplate thai 
 he may be called upon to pay the debts U>r which he is surety, and 
 he can no more be justified in placing the whole of his iiiopcTiy 
 out of the reach of his liability to pay them, tlian if lie were the 
 principal debtor." So damages recovered in an action begun 
 after the settlement in respect of misrepresentations made before 
 it, will be considered as part of the settlor's liabilities {v:). 
 
 And in like manner the nature of the assets is to be taken Nai.ire c.f 
 into consideration. For the purposes of this statute 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. 
 
 This principle seems to have been adopted in Freeman v. Assets must 
 Pope {y). The settlor held two livings, producing a net income ^ J^",'^'tf* 
 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 
 literally 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 moment 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 ajiply 
 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 an iissct, 
 
 (») In re liidler, 22 Cli. D. 80, 82. (j-) Fj: parte Busstll, 19 C'h. I), rm. 
 
 (v) 2 De G. J. & S. 141. (;y) L. K. 5 Ch. 538, .542, 54.3 ; ante. p. 
 
 (w) Crossley y. Elworthj, L. E. 12 Eq. 47. See French v. French, 6 IK' <;. M. 
 
 158, 168, 169 ; and see Ex imrte fiercer, & G. 106 ; Ex parte Jiussell, 10 Cb. D. 
 
 17 Q. B. D. 290. 688.
 
 CO ASSETS OF SETTLOR. 
 
 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 only be reckoned at the value they would fetch 
 by a forced sale, and not at any fancy price which the settlor 
 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 wliether he can pay his debts in the way in 
 which he proposes to pay them — that is, by continuing his 
 business (b). So a debt due to tlie settlor by a person for 
 whom he was a guarantee cannot be treated as an available 
 asset (c). 
 
 So the fact that tlie assets have been lost or rendered unavail- 
 able to pay debts not payable at the time of tlie settlement, as 
 by an investment in a solid undertaking to which a heavy or an 
 imlimited liability attached, will not of itself bring the settlement 
 within the statute (d). 
 
 Where a trader carried on his business up to the time of his 
 death, the Court will act upon tlie valuation made by a com- 
 petent valuer, both as regards his stock and the bills for which 
 the deceased may have been liable, as its sole basis (c). 
 
 The same principles of estimating the liabilities and assets of 
 the settlor at the time of executing the voluntary settlement 
 obtain in America (/ ). 
 
 5 Ch. 
 
 {z) Benlson v. Tattersall, 18 L. T. {c) In re B idler, 22 Ch. D. 80. 
 
 (N.S.)303; Ex parte liussell, Id Ch. D. (r/) Freeman v. J'ope, L. R. o 
 
 588. 538 ; In re Bidler, 22 Cli. I). 79. 
 
 (rt) Ex parte liussell, 19 Cli. D. 597. (e) Taylor v. Coencn, 1 Ch. D. C40. 
 
 (6) Ex parte Jiussell, 19 Ch. D., per (_/) See Bump. Fr. Con v. (Anier.), 2nd 
 
 Liiiclle}-, L.J., 6U1. ed. 279-285. 
 
 I
 
 CHArTER in. 
 
 VOLUNTARY CONVEYANCES AS AGAINST SUBSEQUENT CREDITORS. 
 
 It would be very inconsistent with tlie gencnilly l)enclic'iul cllcct r.iyiiiK fff 
 of the statute if the rights of creditors as against a vohmtary 'ii'„K.''„Ut"fi." 
 conveyance by a person in embarrassed circumstances could bi- |,"j("'ii"'l'^fr,!l'i*," 
 defeated by the formal objection that the deljts whidi were owinf ^'''1 ""t ""♦•'o 
 
 " P(hk1 It VdlllU- 
 
 when the deed was executed had been paid oil' and replaced by tary »etilc- 
 fresh liabilities. It is clear, therefore, that if a man under those 
 circumstances made a voluntary conveyance or settlement, and 
 then made an arrangement by which the existing creditors were 
 paid off and new creditors substituted, the conveyance or settle- 
 ment would be void against such subsequent creditors (g). 
 The ground on which such a settlement is held ^'oid as against 
 subsequent creditors is that it would have been held void if im- 
 peached 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 (//) the voluntary 
 settlor was, at the time of the settlement, indebted to the plain tiff 
 on the balance of a mining account, and afterwards 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 fresh set of creditors 
 could not of itself render the settlement void against subsequent 
 creditors (i). 
 
 (g) Bichardson v. Smallwood, Jac. si quidem simpliciter diniissis prioriluis 
 
 552 ; Holmes v. Penney, 3 K. & J. 100. quos fraiulaie voluit, alios postca sortiius 
 
 Qi) Whittington v. Jennings, 6 Sim. est, cessat revocatio. Si aiitcni horuni 
 
 493. Freeman v. Pope, L. R. 9 Eq. 20(3, quas pecunia fraudare nolnit priores 
 
 S. C. 5 Ch. 538, was in fact much the dimisit quos fraudare vcltiit '' it slmll 
 
 Bame sort of case. But see White v. be void. Dig. lib. 42, tit. viii. p.»r. Id, 
 
 Witt, 24 W. R. 727. And so by the sec. 1. 
 
 civil law: " Si illos dimisit quorum frau- (/) Kent v. RUfih I^- K- ^^ K'l- ^•^"• 
 
 dandornni causi fecit, et alios sortitus est,
 
 r.2 
 
 VOLUNTARY C0NVEYAXCE3 
 
 Doubt whether 
 debts prior or 
 subsequent. 
 
 When set 
 aside b_v prior 
 creditors, all 
 creditors let 
 in. 
 
 Analogy in old 
 bankrupt law. 
 
 Seems con- 
 trary to the 
 words of the 
 statute. 
 
 "Where the settlement was allowed to be acted on for a con- 
 siderable time and was founded on meritorious consideration, and 
 there was a doubt whether the plaintiffs debt accrued till after 
 the settlement, Lord Hardwicke refused to interfere (k). 
 
 It is clear, moreover, that where, at the suit of prior creditors, 
 an order is obtained setting aside a settlement or other fraudulent 
 alienation of property, that property becomes liable to the claims 
 of all the creditors generally, and subsequent creditors are let in 
 and participate pro rata (/). 
 
 This is analogous to the old bankrupt law, which affected 
 traders only, and under which it was held that a trader, after 
 having retired from business, could not be made a bankrupt for 
 debts contracted after he retired, but that, if the old creditors 
 sued out a commission, the new creditors should be admitted to 
 have a share of the estate (m). 
 
 This participation of subsequent creditors, at first sight, seems 
 contrary to the express words of the Act, which declares fraudu- 
 lent deeds, &c., void " only as against that person or persons, &c., 
 whose actions, suits, &c., are, shall, or might be, in anywise dis- 
 turbed, hindered, delayed, or defrauded." But a construction has 
 been adopted more congenial to the general spirit of the enact- 
 ment, which (as so often declared) is to be construed liberally in 
 the suppression of fraud and for the benefit of creditors. For 
 the statute speaks of those who mir/ht 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 fraudulent gift to defraud one creditor only, it is 
 void against all creditors and all forfeitures " (o) ; and that it 
 is the law is well estalilished by high authority from an early 
 
 {k) White V. Sansom, 3 Atk. 411. 
 
 (m) Meggot v. Mills, 1 Ld. Raym. 
 
 {I) Jenkyn v. Vaughan, .S Drew. 419 ; 
 Richardson v. Smallu-ood, Jac. 5.52 ; St. 
 Amand v. Countess of Jersey, Com. Rep. 
 25.5; Beaumont v. Thorpe, 1 Vea. 
 27; Strong v. Strong, 18 Beav. 408; 
 Taylor v. Jones, 2 Atk. 600; and see 
 Gugen v. Sampson, 4 F. & F. 074 ; and 
 see post, pp. C8, 515. 
 
 286-7. 
 
 (n) liichardson v. Smallwood, Jac. 
 552 ; Graham v. Furber, 14 C. B. 410; 
 Jenkyn v. Vaughan, 3 Drew. 419. 
 
 (o) Per Sir W. Jones in Turbervill v. 
 Tipper, Palm. 415, n. ; ante, pp. 40, 41 ; 
 post, pp. 98, 99.
 
 AND SUBSEQUENT CREDITORS. g3 
 
 period. Lord Hardwicke said, in JFdlkcr v. Burrows {„), that, 
 " if there had beeu proof that Burrows (the settlor) was iiuk-l.t.'d 
 at the time, it would have run on so as to take in all subsequent 
 creditors." And so in Toionshend v. Wlmlhmn {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 conveyance and dit-d 
 indebted, but that it should be considered part of his estat.- U^r th.' 
 benefit of his creditors." 
 
 The case of Kidncij v. Coussmakcr (q) miglit Ije thought to bo at 
 variance with this doctrine. There Sir W. Grant said that, th..uLrli 
 there had been much controversy and a variety of decision upon 
 the question whether such a settlement is fraudulent as to any 
 creditors except such as were creditors at the time, he was 
 disposed to follow the latest decision, that of Montague v. Sand- 
 wich (r), that the settlement is fraudulent only as against sucli 
 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, 
 depended on whether there were prior creditors and the amount 
 of their debts ; and to ascertain this an inquiry was directed ; 
 and Montague v. Sandwich (s) is open to the same con- 
 struction (/). 
 
 Where a voluntary settlement has been made by a person Voluntary 
 " indebted " (u), any creditor who was such at the date of its ITp^nomin. 
 execution, or who became such after that date, so long as any one t^^^^Th ^ 
 of the original creditors is still unpaid, can impeach the settle- '"''>''<"q"fnt 
 
 . . creditor. 
 
 ment (v). 
 
 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 impeached by a creditor, though 
 
 (o) 1 Atk. 94. {t) See HoUoira;/ v. JUlhird, 1 Ma.I. 
 
 ip) 2 Ves. 11; and see Beaumont v. 414,421. 
 
 Thorpe, 1 Ves. 27. (m) Ante, pp. 35 et seq. 
 
 (q) 12 Ves. 136-155. {v) Jenhjn v. Vaughan, 3 Drew. 419; 
 
 (r) 12 Ves. 148. Freeman v. Pope, L. R. 9 Eq. 20G, S. C. 
 
 (s) 12 Ves. 148, n., 155, n. 5 Ch. 538 ; post, pp. 518 et seq.
 
 64 
 
 VOLUNTARY CONVEYANCES 
 
 Voluntary 
 settlements 
 as against 
 subsequent 
 creditors. 
 
 subsequent — though no debt is proved to exist which was con- 
 tracted at the dale of the settlement (r). 
 
 This leads to the inquiry, what will make void against suhsc- 
 qurnt creditors a voluntary settlement which is not to be pre- 
 sumed fraudulent merely because of the settlor's embarrassed 
 circumstances when he made it ? 
 
 Where the settlor was not indebted at the time, the onus of 
 proving the fraud is thrown on those who impeach the settlement, 
 for fraud is not to be presumed. The facts that all the debts 
 due at the date of the settlement have been paid since, and that 
 the only debts due are those subsequently contracted, negative the 
 inference of intent to defeat, delay, or defraud creditors drawn 
 from indebtedness at the time (iv). The m^re fact of subsequent 
 indebtedness is not evidence of a fraudulent intent against subse- 
 quent 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 (?/). If bona fide, the 
 settlement will stand, though voluntary ; " but if any mark of 
 fraud, collusion, or intent to deceive subsequent 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 feoff- 
 ments, &c., devised and contrived, &c., to delay, hinder, or defraud 
 Creditors and creditors and other's of their just and lawful actions, &c. The 
 rp , statute is for the protection of creditors and others, not creditors 
 
 Jones. only (a). The word " others," it has been said, seems to be 
 
 inserted with the express intention that the operation may not be 
 
 (v) Crossley v. Ehrorthy, L. R. 12 
 Eq. 158; Taylor v. Coenen, 1 Ch. D. 
 636. 
 
 (tc) Jenlnjn v. Vauyhan, 3 Drew. 425 ; 
 and see Smith v. Tatton, L. R. 6 Ir. 32. 
 
 (x) Smith V. Tatton, L. R. 6 Ir. 32 ; 
 Ex parte Mercer, 17 Q. B. D. 290; and 
 see Bump. Fr. Conv. (Amer.), 2nd ed. 310. 
 
 (y) Per Sir T. Plumer in lUchardson 
 V. Smalbiood, Jac. 552-557 ; and see Rock 
 V. Dade, post, App. No. XIII ; Cross- 
 ley V. Klworthy, L. R. 12 Eq. 158; 
 
 MacJcay v. Douglas, L. R. 14 Eq. 106 ; 
 In re Pearson, 3 Ch. U. 807 ; Er parte 
 Russell, 19 Ch. D. 588 ; post, p. 520. 
 
 (z) Per Lord Hardwiok*' in Townshend 
 V. Windham, 2 Ves. 1-11 ; Ware v. 
 Gardner, L. R. 7 Eq. 317 ; Alton v. 
 Harrison, L. R. 4 Ch. 626; Middleton 
 V. Pollock, 2 Ch. D. 108; Ex parte 
 Games, 12 Ch. D. 324 ; iSmith v. Tatton, 
 L. R. 6 Ir. 32. 
 
 (a) Holmes v. Penney, 3 K. & J. at p. 
 100.
 
 AND SUBSEQUENT CT^EDTTORS. C5 
 
 confined to those who are eivdilors al tlic linic ; ami in th.' 
 enacting clanse the word " creditors " is not used, hut 'm-ikmuI 
 words, " person or persons," pointing more strongly in tlic same 
 direction. " The words of the statute, therefore," it was said, 
 "seem to be so general, in order to take in rdl persons who shall 
 he anyways hindered or delayed "(?;) ; and the (luestion being, 
 whether the debts contracted after the settlement were included 
 in this statute of 13 Eliz. c. 5, it was decided that they were, there 
 being an intention at the time of dc^frauding /i^^wre 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 wliicli an 
 intention of defrauding fvture 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 StiUman t. 
 V. Ashdown (d) he said : " It is not necessary that a man should 
 be actually indebted at the time he enters into a voluntary settle- 
 ment ; 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." 
 
 The principle laid down by Lord Hardwicke in Stilcman v. Settlement by 
 Ashdown (e) has been followed in and extended to the case of a trade 
 man who actually contemplates, or may be considered to contem- 
 plate, going into trade. 
 
 In Mackay v. Douglas (/) the settlor, shortly before engaging Marlay r. 
 in a hazardous trade, settled by a post-nuptial 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. 
 
 It was held by Sir E. Malins, V.C., that the settlement 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 
 
 (6) Per Sir William Fortescue in 7>7!//or {d) 2 Atk. 481; and see ToKnthrnd 
 
 V. Jones, 2 Atk. 600. v. Windham, 2 Ves. II, et supra. 
 
 (c) Kidney v. Coussmaker, 12 Ves. (e) 2 Atk. 481. 
 
 136; and Montague v. Sandwich, there (/) L. R. 14 Eq. lOC, 122; ante pp. 
 
 eited pp. 148, ii., 155, n. ; see ante, p. 63. 51 et seq. 
 
 ¥
 
 66 
 
 VOLT'NTA R Y CONVEYANCES. 
 
 Ex parte 
 Ru*^eU. 
 
 Marks of 
 
 fraud — 
 
 1. Generality 
 
 time. That 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 Eussdl (j), where a trader, indebted biit not 
 insolvent at the time, settled substantially the whole of his 
 property on his wife and children before going into a new trade, 
 it was held, following Maekay v. Douglas (Ji), that the settlement 
 was void, because its object was to screen his wife and chil- 
 dren 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 StUeman 
 V. Ashdown has since then been frequently regarded as a mark 
 
 of the convey- of fraud against future creditors. He there said, " What can be 
 more favourable for the plaintiff than that every foot of the 
 estate has been covered by these purchases ? And unless I let 
 him in upon these estates, the plaintiff has no possibility of being 
 paid." 
 
 Ware v. 
 Gardner. 
 
 In Ware v. Gardner (i) the generality of the gift was con- 
 sidered a badge of fraud. In that case the settlor was in trade, 
 and by a post-nuptial settlement conveyed to trustees on trusts 
 for his wife and children cdl his property, as well present as 
 future. He continued to trade, and became bankrupt five years 
 afterwards. Lord Justice James, then Sir W. ]\I. James, V.C, 
 said the question was whether by this deed he could have had 
 any other intent than to delay and hinder his creditors ? and 
 held that he did execute it with that intent, and that it was 
 within the very words of the statute L3 Eliz. c. 5 (/.•). 
 
 Indeed, where a man about to contract debts denudes himself 
 of all his property by a voluntary gift, the inference of a fraudu- 
 lent intention is irresistible (/) , for a man has no right by a mere 
 
 (/) See In re Pearson, 3 Cb. D. 807. 
 
 {g) 19 Ch. D. 588. 
 
 {h) L. R. 14 Eq. 106; post pp. 520, 
 621. TLe Bame is the law in America, 
 and Upper Canada : see ante, p. 53. 
 
 (/) L. R. 7 Eq. 317. 
 
 (A-) 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. 
 
 {I) See Freeman v. Pope, L. R. 5 Ch. 
 538, 541, 545 ; In re Bidler, 22 Ch. D. 
 80; supra, p. 47.
 
 AND SUBSEQUENT CREDITOlis. 67 
 
 act fif Inninty to put hiinsclf in such a ixisiiioii that he rannnt 
 meet tlio just deniauds ow Inm (7/;). 
 
 The case of Stileman v. Ashdovm. (v) may l»e considcn-d an '2.r'ontinu»nt* 
 authority for supposing that, even where the pn.pcrty ronveved '" '*"'*'"^'"""" 
 is real estate, the donor's continuance in possession is a mark of 
 fraud against subsequent creditors. It was there said that if thf 
 father had taken an estate for life with remainder to the son in 
 fee it would clearly be bad against his creditors. Subsequent 
 decision has not upheld this as a general jn'oposition, but it wradd 
 be difficult to support, even against subsequent creditors, a volun- 
 tary deed retained by a settlor who also kept possession of the 
 property till his death (0). If the retainer of possession will 
 sometimes make a conveyance for value void (^), h, fortiori will it 
 tend to vitiate a voluntary alienation : for a deed not fraudulent 
 in itself at its execution may become 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 lias 
 been held to have this eff'ect ((j). 
 
 But this does not militate against the leading principle above 
 adverted to (r), that under the statute 13 Eliz. c. 5, the fraud, if at 
 all, must be taken to have existed in the settlor's mind at (he time 
 he made the settlement ; for he is presumed to have had in view a 
 subsequent fraudulent use of the deed when he executed it (s). 
 
 Where the contrivance or fraudulent intention appears there is 
 
 (m) Cornish v. ClarJc, L. R. 14 Eq. obligor, covenantor, or promisor ; see 
 
 184 ; Ex parte Bulland, L. R. 17 Eq. Watson v. Parker, 6 Beav. 283 ; Fletcher 
 
 115 ; ante, pp. 38, 51. v. Fletcher, 4 Hare, 67; Blount v. 
 
 {n) 2 Atk. 481. Doughty, 3 Atk. 481 ; Goldicutt v. 
 
 (o) See Ward v. Lant, Prec. Ch. 182 ; Toicnsend, 28 Beav. 445 ; Lomat v. 
 
 Loeffes v. Lewen, Prec. Ch. 370 ; Brake- Wright, 2 My. & K. 769. See post, 
 
 ford V. Wilks, 3 Atk. 539-40 ; Boughton p. 398. 
 
 V. Bouqhton, 1 Atk. 625. For then the {p) See post, pp. 113 et seq. 
 
 property settled is, at the settlor's death, {q) Stone v. Grubham, 2 Bnlstrode, 
 
 assets in his executor's hands ; see post, 225 ; Huvgerford v. Earle, 2 Vern. 261 ; 
 
 p. 69; and see Bates -v. Graves, 2 Ves. Russel v. Hammond, 1 Atk. 13, 16; 
 
 Jun. 292, where Lord Loughborough Stileman ■v. Ashdovn,'i \XV. AM. 
 
 said, " There is, as to third parties, no (r) Ante, pp. 15, 35. 
 
 change of ownership without possession." (.9) See Freeman v. Pope, L. R. 5 Th. 
 
 A debt on a voluntary bond, covenant, 538; Crossley \. Eluorthii, L. R. 12 Eq. 
 
 or promissory note is always postponed to 158 ; Mackag v. Douglas, L. R. 14 Eq. 
 
 creditors for value, at the death of the 106; Ex luirte Russell, 19 Ch. D. 588. 
 
 F 2
 
 68 
 
 VOLUNTARY CONVEYANCES 
 
 Where 
 fraudulent 
 intent, indebt- 
 edness before 
 the deed 
 immaterial. 
 
 Jn re Pearson. 
 
 Fraudulent 
 conveyance 
 void only as 
 against 
 creditors. 
 
 no need to shew that there were creditors existing at the time ; 
 it is enough if any creditor, whether existing before or after the 
 transaction, is or may be defeated (t). So, in In re Pearson (u), 
 a man not then a trader, and owing no debts at the time, 
 made a voluntary settlement of £1000 in 1858. The trusts of 
 the settlement were a life estate to the settlor determinable on his 
 hankruptcy, 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 fraudulent upon the face of 
 it, because it was an attempt 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 reality a 
 sham, by reserving to the settlor the first life estate, determinable 
 on hankr'uj)tcy. 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 (i'). 
 
 A conveyance which is void against creditors within the statute 
 is, when set aside, void only as against all the creditors of the settlor. 
 It was said by Sir William Grant, ]\I.R., in Curtis v. Price (w) : 
 " A settlement of this kind (that is, a voluntary settlement) is void 
 only as against creditors ; but onl}" to the extent in which it may 
 be necessary to deal with the estate for their satisfaction, it is as 
 if it had never been made. To every other purpose it is good. 
 Satisfy the creditors, and the settlement stands." So it was said 
 by Lord Cranworth, L.C., in French v. French (x) : " 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 restoring 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 (x). 
 
 (t) Graham v. Furber, 14 C. B. 410. 
 
 («) 3 Ch. D. 807 ; and as to the Scotch (w) 12 Ves. 103, 106 ; Smith v. Cherrill, 
 
 law, see Learmouth v. Miller, L. R. 2 L. R. 4 Eq. 390 ; Tanqueray v. Bowles, 
 H. L. Sc. 438. L. R. 14 Eq. at p. 157. 
 
 (v) S.-e Marl-ay v. Douglas, L. R. 14 (x) 6 Du G. M. <Si G. at p. 103. 
 
 Eq.at p. 121 ; In re Cross, 19 W. R. 1.03.
 
 AND SUBSEQUENT CREDITORS. (j'j 
 
 The same principle, tliat a voluntary conveyance is good except Sami- in 
 as against creditors, and, wlu'u void a>i;aiiisi ilicui, only di.siiuhed ^"'''"'^*" 
 so far as is necessary in order to satisfy llicir claims, ublains in 
 America (2:), 
 
 So where a man makes a gift of goods which is fniudulcnl Tli- property 
 and void against his creditors, and dies, he is considered to liavt; died ^" "'"''l"'*-'*! »• 
 in full possession with respect to the claim of the creditors, and '»''<^':''t"'"'» 
 
 creilitorH afUr 
 
 the goods are just as much assets in the hands of his personal '»>* <l«--*ili- 
 representative, as to creditors, but as to creditors only (a), as if 
 no attempt to alienate tliem had been made (b). Thus, where A., 
 being indebted to B., made C. his executor, and died ; and C, tlie 
 executor, promised B., on good consideration, that if lie could 
 discover any goods parcel of the testator's estate at the time (jf 
 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 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 vnlute officii (d). 
 
 As any intermeddling with a testator's effects makes the person And framlu- 
 
 1- 1 / \ 1 ij-iiii ''^"' grantee 
 
 SO domg an executor de son tort {e), and as goods rraucluleiitly taking po«sei- 
 alienated by a testator in his lifetime remain part of his estate at je^gon^'j.'l" ^^ 
 his death, possession taken by the fraudulent grantee will make 
 him executor de son tort (/); and he will be liable to be sued as 
 
 (z) Story, Eq. Jur. 12t]i cd. ss. 371, (c) Anontjmous f'a.ic, 2 I\o!l. Hep. 
 
 381 ; Bump. Fr. Conv. (Anier.), 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. 
 
 {(>) Shears v. Eogers, 3 B. & Ad. 362 
 (V Connor v. Bernard, 2 Jo. Ir. Rep 
 
 173; Kitchin v. Dixson, Goiildsb. llti, 
 pi. 12. 
 
 {(l) Shee V. French, 3 Drew. 716. 
 
 (e) Fadget v. Priest, 2 T. R. 97, 100. 
 
 (/) 2 Bac. Abr. 605; Haice* v. 
 Leader, Cro. Jac. 271 ; Edwards v 
 Harhen, 2 T. K. 587 ; Shears v. H.^grrf, 
 
 654, 694 et seq. ; and so as to convey 3 B. & Ad. 362; R-b. Fraud, t'onv. 
 ances void under 16 Ed. 4, c. 9 ; see 593; 6'Aec v. /VoirA, 3 Drexv. 716. 
 Cary's Rep. 25 ; Vin. Abr. tit. Fraud (F.), 
 pi. 2.
 
 70 
 
 VOLUNTARY CONVEYANCES 
 
 such if not the riglitful executor, and a husband may in this way 
 become executor de son tort of his wife, who, being sole, has made 
 a covinous gift of goods {g). 
 
 But the fraudulent alienation is good against the rightful 
 executor or administrator, for he is not a creditor, nor does he 
 represent creditors, and therefore it is no devastavit for him to 
 deliver the goods to the fraudulent grantee, who can be sued for 
 them by creditors, but not by any other person (1i). 
 
 Does this It must be observed that all these are cases where the donor 
 
 the Mr^slfon ^^^^' consistently or inconsistently {i) with the deed, remained in 
 actual possession of the property until his death. And it is 
 apprehended the principle would not apply where the donor had 
 in his lifetime made an absolute immediate gift, followed by 
 change of possession, so as to put the property out of his own 
 power {k). 
 
 the possession 
 was actually 
 
 changed ? 
 
 ^larks of 
 fraud — 
 
 3. Voluntary 
 conveyance 
 
 It is a circumstance inducing strong suspicion of fraud for a 
 man to make a voluntary settlement, knowing at the time that he 
 
 will sliortly become indebted (/). 
 
 Thus, a voluntary conveyance pendente lite, or by a person 
 pendeiite lite, against whom an action for damages, &c., or writ in Chancery (;??) 
 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 lie was not in debt. 
 
 So where a man knows that a decision is about to be pro- 
 nounced 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 preceding 
 
 {g) Wilcocks v. Watson, 1 Cro. Eliz. 405. 
 
 (h) Hawes v. Leader, Cro. Jac. 271 ; 
 Orlubar v. Harivar, 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 con- 
 veyance to a daughter in fee ; the land 
 was taken under a sequestration, and the 
 daugiiter set up no claini to it until her 
 father's death. 
 
 (/■) See also on this point Watts v. 
 Thomnx, 2 P. Wnis. 3(i4. 
 
 {I) Walker v. Burrows, 1 Atk. {^i3, 
 
 94 ; Richardson v. Smalhrood, Jac. 552 ; 
 Ware v. Gardner, L. R. 7 Eq. 317 ; and 
 see In re liidler, 22 Ch. D. 74. 
 
 (m) Selfy. Madox, 1 Vern. 459; Part- 
 ridge V. Gopp, 2 Amb. 59(3 ; but see Ex 
 parte Mercer, 17 Q. B. D. 290 ; post, pp. 
 74, 521. 
 
 (h) Anonymous Case, Dyer, 294, b ; 
 Rob. Frauci. Conv. 575 ; Eing v. Ma- 
 rissul, 3 Atk. 192. 
 
 (o) Barling v. Bishopp, 29 Beav. 417 ; 
 Beese hirer Silver Mining Co. v. Atwell, 
 L. R. 7 Eq. 347.
 
 AND SUBSEQUENT CREI)IT()1{S. 71 
 
 action for damages is of a very .spL-culaiivu charaetcr, s(j lliaL the 
 probability of substantial damages is very sliglit (p). 
 
 Where a man made misrepresentations shortly before executing 
 a voluntary settlement for which he was afterwards made liable 
 in damages, it was held that the misrepresentations related back, 
 so as to prove him to have been then indebted ; and that it 
 was at least a circumstance of suspicion, even if not enou'di in 
 invalidate it {q). 
 
 The word " forfeitures " in the statute extends to every kind of T<. avoi.l 
 forfeiture to the sovereign or a subject (r), and it has frequently fdouy"""' ^"^ 
 been held that if a man alien his lands with intent to commit a 
 forfeiture, and afterwards commits a felony, the lands sliall be 
 forfeited as if there had been no alienation (s), and if the alien- 
 ation is voluntary and the felony follows immediately, a fraudulent 
 intention will be presumed {t) ; and wlicre the alienation 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 after- 
 wards (m). a conveyance on the eve of conviction must be 
 supported by proof of consideration ( i-) ; 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 lo tlie company, 
 and a good consideration for the securities given to the company 
 by him ; and consequently, as the deposit was not a voluntary 
 gift by him, it was good against the Crown (?'•). And where 
 a mortgage was made with the intention on the i)art of the 
 
 (p) Ex parte Mercer, 17 Q. B. D. 290. 
 
 {q) Crossley v. Elwortliy, L. R. 12 {v) Shaw v. Bean, 1 Stark. 319. See 
 
 Eq. 168, 169 ; but see Ex parte Mercer, also Lenthal's Case, 2 Vern. 44 ; Turvil 
 
 17 Q. B. D., per Grantham, J., 296, 297. v. Tij)per, Latch. 222 ; Jones v. If'm- 
 
 {r) Pauncefoot v. Blunt, 3 Kep. 82 a ; wood, 10 Sim. 150 ; Bex v. Bridycr, 1 
 
 post, p. 169. M. & W. 145; Leonard v. Bacon, Cni. 
 
 (.s) Roll. Abr. 34. Eliz. 234 ; More.wood ami Wilket, 6 < '. & 
 
 \t) Vin. Abr. tit. Fraud (A.) 1; Jones P. 144; Saunders v. U'/iarton, 1 N. H. 
 
 V. AsJmrt, Skin. 357. 256; PerJcins v. BradUij, 1 Hare, 219; 
 
 (m) Sir W. Balei(jh's Case, cited in Manning v. Gill, h. R. 13 Eq. 485. 
 
 Eex V. Nottingham, Lane, 48. (w) Choivne v. BayU, 31 Ik-av. 351.
 
 72 
 
 VOLUNTARY CONVEYANCES 
 
 Voluntary 
 conveyance to 
 defeat execu- 
 tion void. 
 
 Spencer v. 
 /blater. 
 
 Or to defeat 
 sequestration. 
 
 mortgagor of defeating a 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 void 
 merely because it is made with the intention of defeating a par- 
 ticular execution (z), yet even by the common law a voluntary 
 alienation made with that object was void {a), and of course is so, 
 under the statute, both at law and in equity (&). 
 
 In Spencer v. Slater {c) an insolvent debtor assigned all his 
 property to trustees upon trust to carry on the business or 
 realize it and to pay his creditors on certain 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 
 because 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 defeat 
 ser|uestration : if made on good and valuable consideration they 
 are valid {d), but a mere voluntary settlement or conveyance for 
 the purpose of defeating an expected sequestration is clearly 
 void {r) ; so that where a husband, pending proceedings against 
 him in the Ecclesiastical Court for a divorce, executed a voluntary 
 settlement of real and personal estate for the purpose of defeating 
 
 {x) King v. Mar 
 
 (y) 33 & 34 Vict. c. 23. 
 
 {z) Alton V. Harrison, L. R. 4 Ch. 
 622 ; Wood v. Dixie, 7 Q. B. 892, post, 
 pp. 99, 100 et seq. ; Ex parte Gamen, 12 
 Ch. D. 314. 
 
 (a) Dyer, 295 a. 
 
 {h) Bott V. Smith, 21 Beav. 511; 
 Blenkinsopp v. Blenldnsopp, 12 Beav. 
 568, S.C. 1 De G. M. & O. 495 ; Barling 
 V. Bishopp, 29 Beav. 417 ; lieese liiver 
 Silver Mining Co. v. Aticcll, L. R. 7 Eq. 
 
 issal, 3 Atk. 192. 
 347 ; Hale v. Metropolitan, &e., Co., 4 
 Drew. 492 ; post, p. 99. 
 
 (c) 4 Q. B. D. 13 ; but see Boldero v. 
 London and Westminster Discount Co., 5 
 Ex. D. 47 ; Ex parte Chaplin, 26 Ch. D. 
 319; post, pp. 97, 98. 
 
 {d) Couhtony. Gar diner, 3 Sw. 279, n. ; 
 Alton v. Harrison, L. R. 4 Ch. 622. 
 
 (e) Witham v. Bland, 3 Sw. 276, n. ; 
 Coulston v. Gardiner, 3 Sw. 279, n. ; 
 O'Connor v. Bernard, 2 Jo. Ir. 654.
 
 AND SUBSEQUENT CREDITORS. 73 
 
 any process in the nainre of execution, and sequestration after- 
 wards issued against him, the deed was held vujd as a<,'ainst tlie 
 wife (/); and the mere fact of vaUie heinj,' jiaid will not neces- 
 sarily make it good against the sequestrator (y), and a grossly 
 inadequate consideration is of no use (It). 
 
 A voluntary conveyance ])y a person who knows thai he will Or to-W^i » 
 shortly become indebted, comes under the same category. Of tliis 1© fill due.' 
 nature was the case of Spirett v. Willows (i), as explained by 
 Lord Hatherley in Freeman v. Foj)e (k), where he said that 
 in Spirett v. Willoirs the settlor being solvent at the tiiiic, 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 for the payment of 
 debts, after which he collected the rest of tlie assets and (appar- 
 ently 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 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 pay- 
 ment of those debts an amount without which the debts cannot 
 be paid, then, since it is the necessary consequence of the settle- 
 ment (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 (/). 
 
 So a voluntary settlement by a person then under a large con- Or to defeat 
 
 11 conlinpi-nt 
 
 tingent liability as guarantee for a debt, winch, as a reasonable liability, 
 man, he should expect would probably be enforced, and to meet 
 which liability he had left substantially no available assets out of 
 settlement, is within the statute (m). 
 
 The question, what fraud avoids a voluntary deed as against 
 
 (/) Blenkinsopj) v. Blenhmopp, 12 (A") L. R. 9 Eq. 206, S. C. L. K. 5 
 
 Beav. 568, S. C. 1 De G. M. & G. 495 ; Ch. 538, 541. 
 
 post, p. 526. (0 Ante, p. 47. 
 
 ((/) Empringhamv. Short,?. \{a.rG,A()\. (m) In re liidkr, 22 Vh.T>. 74, 82; 
 
 ill) Strong v. Stronq, 18 Beav. 408. but see Ex parte Mercer, 17 Q. B. D. 
 
 (i) 3 D. J. & S. 293. 290.
 
 74 VOLUNTARY CONVEYANCES 
 
 Fraud subsequent creditors, was much discussed in Barling v. Bishopp (n), 
 
 creditors '"'^ wliere, after notice of trial in an action of trespass, the defendant 
 had executed a voluntary conveyance of real estate to his daughter, 
 and a verdict being given against him he became insolvent, and 
 the plaintiff in the action filed his bill in Chancery to set aside 
 the voluntary conveyance. No debt was due from the defendant 
 at the date of the settlement, but after its execution he kept the 
 title-deeds and remained in possession of the property, just as 
 before the deed was executed. Lord Romilly, M.E., said, " It is 
 obvious that the statute is not in terms restricted to existing 
 creditors alone, but that it extends to future creditors also ;" 
 and after referring, with approval, to Jenkyn v. Vaughan (o), 
 observed that there are many modes by wliicli a person 
 may be hindered of his just and lawful actions, debts, and 
 damages, and by which creditors may be defrauded, although the 
 grantor may not be indebted at the time ; a man not indebted 
 and of good credit may make a conveyance of property to his son 
 or daughter, and immediately after borrow a large sum of money, 
 and, having spent or made away with it, take the benefit of the 
 Act ; that, if this is done simultaneously, it would be impossible 
 to say that it was not done with intent to defraud his creditors ; 
 a tenant might strip the lead off his house, having the day before 
 made a voluntary conveyance, take the benefit of tlie Act, and 
 then say, " I have nothing to pay the damages ; " and that the 
 only thing the Court has to consider in such a case as this is, 
 whether the object was to defeat the creditors, present or future. 
 E.r parte This principle has been qualified in the recent case of Ux parte 
 
 Mercer (p), decided by the Divisional Court and afiirmed by the 
 Court of Appeal. 
 
 In that case a man not in trade, and at tliat time absolutely 
 free from del)t, made a voluntary post-nuptial settlement of a 
 legacy of £500 which had just before unexpectedly accrued to 
 him, being, in fact, all he had, and directly after he had been 
 served with a writ in an action for breach of promise of marriage. 
 Judgment was obtained against him in tlu; action for £5U0 
 damages. He was afterwards adjudicated a 1)aiikrupt. 
 
 (n) 29 Beav. 417, approved in Ex (o) 3 Drew. 410. 
 
 2>arte Mercer, 17 Q. B. D. 'jyy, 20G. [p) 17 Q. 13. D. 290.
 
 AND SUBSEQUENT CRKDIToliS. 75 
 
 It was held that, having regard to all il„. .iiviuusiaiices nf il,,' 
 case, to the highly speculative nature of the action against him, 
 to the fact that at the time he was suhject merely to a lialjihly 
 which might or might not result in a debt, it could not l)e said 
 that the necessary effect of tiie settlement was to defeat or delay 
 his creditors, or that the settlor at the time he executed it had 
 any such actual intention. 
 
 There must, however, be an express intent to defraud future Kxpr-^s 
 creditors (q); the fact of there being no reasonable cause or [i;,',"'!;;^'"",^"/. 
 explanation why at that tune such a settlement should have been 
 made is always looked on as a suspicious circumstance, ])ointing 
 to the expectation of future indebtedness as a motive (r). 
 
 So a settlement by a trader of all his property, present or 
 future, although not then in debt, except for money secured by 
 mortgages since paid off, was held within the statute (s). 
 
 One important class of cases within the statute is, where the Enpngi.ig in 
 settlor contemplates entering on a new trade, or going into afu'/seule- 
 trade. In this case, a settlement, even if the settlor is not °^°'' 
 indebted at the time, will be held fraudulent and void, because it 
 takes his property out of the reach of those who might lie his 
 creditors at a future time (f). 
 
 It is established that it is not necessary to shew the expi-ess Need n..t ix* 
 intent to defraud future creditors by anything said or done ; but Icu or woniH^ 
 if, having regard to all his circumstances and position, a man 
 makes a settlement, the effect of which would necessarily Ije to 
 delay or defeat those creditors, it is within the statute (»)• 
 
 A voluntary settlement, then, of real or personal property to lie 
 good against subsequent creditors, must Ije made l)y a persoii not 
 indebted at the time, and "not meaning a fraud " (r). 
 
 (r) Richardson v. Smallwood, Jac. Cave, J., 293; ante, pp. 51, Go ; poBt, p. 
 
 657 ; Goldsmith v. Russell, 5 De G. M. & 521. 
 
 G. 547, 554 ; post, pp. 520, 521. {u) Jenhjn v. Vaur/han, 3 Drew. 41'.1 ; 
 
 (.s) Ware v. Gardner, L. K. 7 Eq. Freeman v. Pope, L. R. 5 t'li., per I/orJ 
 
 317 ; In re Pearson, 3 Ch. D. 807 ; ante, Hatlierley, 538, 541 ; In re Maddtxon, 
 
 pp. 66, 68. 27 Ch. D., per North, J., 526 ; but sec Er. 
 
 (t) Crossley v. Elworthy, 1,. R. 12 ^^or^e J/ercer, 17 Q. B. D. 20(1 ; ante. p. 74. 
 
 Eq. 158; Machay v. Douglas, L. R. 14 (r) Holloicay v. Millard, 1 Mail. 414, 
 
 Eq. 106; Taylor v. Coenen, 1 Ch. D. 421; Mackay \. Douylas, L. R. 14 Kq. 
 
 636; Ex parte RusseU, 19 Ch. D. 588; 121 ; Kent v. Riley, L. U. 14 Eq. 184; 
 
 Ex parte Mercer, 17 Q. B. I)., per post, p. 520.
 
 76 
 
 VOLUNTARY CONVEYANCES 
 
 Some benefit 
 under tlie 
 settlement 
 given to 
 settlor. 
 
 Powers of 
 revocation. 
 
 Conveyances 
 purely volun- 
 tiiry treated 
 the same as 
 those on 
 meritorious 
 consideration. 
 
 Where a voluntary settlor has bona fide parted with all the 
 control over the property settled, the mere fact that he has vested 
 it in trustees with absolute power to deal as they please with the 
 income for the benefit of himself and his wife and children, will 
 not make it fraudulent against subsequent creditors of the settlor 
 any more than if it were a settlement simply for the benefit of 
 the wife and children of the settlor. The distinction is too thin 
 to authorize the Court to decide that, because the settlor may 
 possibly derive some benefit from it, the settlement must there- 
 fore be fraudulent. But the settlement being merely voluntary, 
 the intention may have been to take the property from the cre- 
 ditors, and it may be requisite to have the transaction fully 
 investigated (w). 
 
 So a voluntary settlement in which there is a trust for the 
 division of the income at the sole discretion of the trustees, to 
 take effect on the bankruptcy of the settlor by divesting his life 
 estate, will not of itself make the settlement fraudulent against 
 subsequent creditors (x). 
 
 A power of revocation is a strong mark of fraud against future 
 creditors, and will, it is apprehended, always make a settlement 
 void against them ; for it virtually leaves the property under the 
 settlor's power, shewing that he did not bona fide intend to put 
 the property out of his reach (y), and that it was a contrivance 
 for his own benefit (z) ; but actual notice to a creditor before 
 he became so has been held to make a difference in favour of 
 the deed («). 
 
 There seems to have been at one time an impression that, 
 though the consideration of natural affection in a settlement by a 
 man on his wife or children would be sufficient to support that 
 settlement against subsequent creditors, and, unless made with a 
 fraudulent intention, came within the proviso in favour of con- 
 
 (iv) Per Lord Hatherley (then Sir W. 
 P. Wood, V.C.) in Holmes v. Penneij, 3 K. 
 &J. at p. 100; In re Cross, 19 W. R. 
 153 ; In re Pearson, 3 Ch. 1). 807. 
 
 {x) In re Kerrison''s Trusts, L. R. 12 
 Eq. 422. 
 
 (y) See Hungerford v. Earlr, 2 Vern. 
 
 261; Tarhackv. Marhmj, 2 Vern. 510; 
 Gilh. Lex P. 293; O'Connor v. Bernard, 
 2 Jo. Ir. Rep. 654 ; Smith v. Hurst, 10 
 Hare, 44. 
 
 (2) Alton V. Harrison, L. R. 4 Ch. 
 626 ; post, pp. 96, 97 ; and see Bump. Fr. 
 Conv. (Amer.), 2nd ed. 317-318. 
 
 (a) Sagitary v. Hide, 2 Vern. 44.
 
 AND SUBSEQUENT CRKDITORS. 77 
 
 veyances on good consideration and iKiiifi fide, yet, a vdluiitary fon- 
 veyance to or settlement on mere strangers, not resting on surh 
 meritorious consideration, would be void, even against subsequent 
 creditors, though made without meaning a fraud on subsequent 
 creditors (5); but there seems to be no shadow of ground U^\■ tbia 
 distinction at the present day ; conveyances merely voluntary and 
 those which are founded on the consideration of natural aflection 
 must stand or fall by the same rule in all cases {c). 
 
 In America, however, a voluntary conveyance in favour r.f a Not fo in 
 wife or children cannot be impeached by subsequent creditors '^™*^"*^*- 
 merely because it is voluntary {d). 
 
 {b) See Ti/re v. Littleton, 2 Brownl. (r) ITollowny v. Millard, 1 Mail. -Ill, 
 
 189; Rob. Fraudulent Conv. 448 ; and see 418 ; post, p. 245. 
 
 per Lord Hardwicke, in Townshend v. (d) Sedgwick \. P/f«'c, 25 L. T. (X.S.) 
 
 Windham, 2 Ves. 11 ; ante, p. 15; post, (Amer.) 307. 
 pp. 245, 246.
 
 CHAriER IV. 
 
 COXYEVAXCES FOR VALUE AS AGAIXST CREDITORS. 
 
 Proviso m By the 6th section {e) it is provided that the Act shall not extend 
 
 favour of bona 
 
 fide purchasers to any estate or interest ^ipon good consideration and bond fide 
 
 without notice i p n i i , ■, -,■ 
 
 of fraud. lawtully conveyed or assured to any person or persons, or bodies 
 
 politic or corporate, not having, at the time of snch conveyance 
 or assurance to them made, any manner of notice (/) or knowledge 
 of such covin, fraud, or collusion. 
 
 Volunteers In cascs of Voluntary gifts it matters not whether or not the 
 
 need not have , 
 
 notice. Volunteers had notice ot the fraud {g), but where there has been a 
 
 conveyance for value, not only must fraud be shewn, but in order 
 
 But if convey- to avoid the transaction as against the purchaser it must be 
 
 purchaser" shewn that he was privy to the fraud against creditors. Unless 
 
 notke ^^^ this position can be established, the purchaser who has paid his 
 
 money or other consideration has a right paramount to that of 
 
 creditors {h). The question, where the conveyance is for value, 
 
 and also is, whether there was an intent to defraud creditors in the parties 
 
 vendor to iitt-i 
 
 avoid deed. to the deed. " 1 say m the parties to the deed, because it appears 
 to me to be plain that whatever fraudulent intent there may have 
 been in the mind of Judith Johnson (the vendor), it would not 
 avoid the deed, unless it was shewn to have been concurred in by 
 Alice, who became the purchaser under the deed. It has not been 
 contended, and it could not be contended, that tlie mere fraudu- 
 lent intent of the vendor could avoid the deed, if the purchaser 
 were free from that fraud " (t). 
 
 (e) See Appendix No. I. 
 (/) As to whether notice to the pur- {g) Ante, p. 45. 
 chaser's solicitor is enough, see Re Cole- (h) It is different as to frauds under the 
 mere, L. R. 1 Ch. 128, 133 ; Horke's bankruptcy laws : see Colomhine v. Pen- 
 Estate, 14Ir.Ch.Rep.442 ; SyTces v. Bond, hall, 1 Sin. & Giif. 228, 257 ; Bulmer v. 
 7 Jur. (N.S.) 1024; Sharpe v. Fay, 17 Hunter, L. R. 8 Eq. 46. 
 W. R. 65. Notice to solicitors of trustees ()') In re Johnson, 20 Ch. D., per 
 is not notice to the trustees : Saffron Wal- Fry, J., 394; post, p. 62. The same is 
 den Second Benefit Building Society v. the law in Upper Canada : Wood \. Irivin, 
 Bayner, 14 Ch. I). 406 ; and see Cave v. 16 Cliy. 398, S. C. 18 Chy. 594. 
 Cave, 15 Ch. D. 639.
 
 CONVEYANCES FOR VAIJ'i:. 7Q 
 
 And the purchaser must liiivc notice not only of llie ddit l»\il Notice nui«t 
 of the covin (k) — of tlie fraucUilcut intention ; for if nii-ru notice of jj'^ljj*''" ^"""* 
 debts were sufticient to avoid a sale otherwise honest, a purcluuser 
 ought to have, not only an al)stract of the vendor's title, but an 
 abstract of the vendor's circumstances ; and ho must be examined 
 like a bankrupt : a conveyance, therefore, cainiot be invalidated 
 under this Act where there is a bona fide purchaser (/). So where 
 a nuu-riage settlement is impeached by creditors of the hus])and, 
 the wife — who is a purchaser for value by the marriage — must in; 
 proved to have been privy to the fraud (m). 
 
 This was the original intention of the statute, limiting its 
 operation to the evils to be avoided ; in Upfon v. Basset (n) Owen, i),ion v. 
 J., said "he was at the making of the statute, wherein special **'" 
 care was taken that there should not be any words which should 
 extend to purchasers." Where there is a bona fide purchase, and PurchaBe and 
 in the same transaction a dealing with the property or the pur- H<-til.-iiient by 
 chase-money by the vendor of such a nature as to be fraudulent ^jon'™"***" 
 against his creditors, that may be set aside without affecting the 
 validity of the sale, although the two transactions were effected 
 by one deed (o). 
 
 As was observed by Lord Mansfield (j)) on this proviso, the innocent tiiir.l 
 statute directs that no act whatever done to defraud a creditor or protecu-<i'; 
 creditors shall be of any effect against such creditor or creditors. 
 But then such a construction is not to be made in favour of 
 creditors as will make third persons sufferers. Therefore the 
 statute does not militate against any transaction bona fitle and 
 where there is no imagination of fraud. 
 
 (k) Per Eyre, Baron, in Jones v. Bonl- 49, 63 ; Bvlmer v. Hunter, L. R. 8 Eq. 
 
 ter, 1 Cox, 288-295, and so by the civil 60, 51 ; Kevan v. Crawford, 6 Ch. D., 
 
 law, Dig. lib. 42, tit. 8, par. 10, sees. 2, 4; per Jessel. M.R., 39; post, pp.91 et 
 
 Bulmer v. Hunter, L. R. 8 Eq. 46 ; seq. 
 
 Reran v. Crainford, 6 Ch. D. 29 ; In re {n) Cro. Eliz. 444, as quoted by Sir T. 
 
 Johnson, 20 Ch. D. 389, S. C. 51 L. J. Plumer in Copis v. Middleton, 2 Mad. 
 
 (N.S.) Ch. 503 ; et ante, p. 8. 430. But it is submitted that the statute 
 
 {I) Per Sir T. Plumer, in Copis v. referred to was the 27 Eliz. c. 4, not the 
 
 Middleton, 2 Mad. 410, 426 ; and see 13 Eliz. c. 5. 
 
 French v. French, 6 De G. M. & G. 95, (o) Goldsmith v. ]iiissell,5 DeG. M. & 
 
 101-2 ; Hale v. Metropolitan Saloon Co., G. 547,554; French \. French, Gl^cG. M. 
 
 4 Drew. 492; and In re Johnson, 20 & G.95 ; xWo/e v./Jai/, 28 L. J. (N-S.)Cb. 
 
 Ch. D. 389, S. C. 51 L. .T. (N.S.) Ch. 503. 45 ; Wakefield v. Gibbon, 1 Giff. 401. 
 
 (m) See Fraser v. Thompson, 1 Giff. (/-) In f'adoganM. A'f»)n<'»,Cowp. 4.35.
 
 80 
 
 COyVEYAXCES FOR VALUE 
 
 more than 
 
 creditors 
 
 themselves. 
 
 Limits of the 
 beneficial 
 operation of 
 the statute. 
 
 To protect 
 creditors. 
 
 But not so as 
 to touch inno- 
 cent persons. 
 
 A bona fide purchaser, without notice of any fraud on 
 creditors, is more entitled to be protected than the creditors them- 
 selves, whose only claim is on the general estate ; for he has paid 
 his money for the particular estate which he claims (q), and 
 is expressly exempted from the operation of the Act by this 
 section ; and even though there are some suspicious circum- 
 stances, a purchase will be held good unless it is shewn that it 
 was a contrivance to defeat creditors and that the ptirchaser was 
 privy to it (/•). 
 
 The operation of the statute is bounded, on the one side, by 
 the danger of allowing persons unfairly to reduce the fund to 
 which creditors have a right to look for the payment of their 
 debts, by giving away that over wliich they have only a qualified, 
 not an absolute, right, being allowed to sell, not to give ; or of 
 allowing collusive sales, equally injurious to creditors. And, on the 
 other hand, the Court (especially with regard to dispositions on 
 valuable consideration) will not carry its decisions in favour of cre- 
 ditors so far as to cramp the dealings of innocent persons with those 
 who may be infringing the rights of their creditors. Too great an 
 extension of principle in either of these directions would be pro- 
 moting the mischief intended to be remedied, and would go to 
 prevent " all dealing, bargaining, and chevisance between man 
 and man " (-s), and counteract the object of the statute {i). 
 
 Mutual credit 
 increased by 
 security of 
 creditors. 
 
 But innocent 
 purchasers 
 must be 
 equally pro- 
 tected. 
 
 For as, on the one hand, mutual credit and confidence, so 
 necessary and indispensable for the advancement of commerce 
 and trade, are strengthened in the proportion that the power of 
 debtors to evade payment is decreased ; so, on the other hand, a 
 purchaser cannot be expected to know or inquire into the state 
 of the vendor's circumstances ; and nothing but injustice and 
 mistrust between man and man could be occasioned by making 
 void sales to an innocent purchaser. Such sales are, in another 
 view, also beyond the mischief of the statute ; for where a fair 
 
 (9) George v. Milbanke, 9 Tes. 190, 
 196 ; post, p. 230. 
 
 (r) Hale v. Metropolitan Saloon Omni- 
 Ini.i Co., 4 Drew. 402 ; Harman v. Eich- 
 ard$, 10 Hare, 81, 89 ; Holmes y. Penney, 
 
 3 K. & J. 90 ; Kevan v. Crawford, 6 
 Ch. D. 29 ; In re Johnson, 20 Ch. D. 
 389, S. C. 51 L. J. (N.S.) Ch. 503. 
 
 («) 13 Eliz. c. 5, B. 1 : Appendi.x No. 
 
 \t) Copis V. Middleton, 2 Mad. 427, 428.
 
 A6 AGAINST CREDITOR?. 31 
 
 price is paid for land or goods ilie property of tlio debtor is not 
 Ity that act made less, or less available (//), to creditors. The 
 purchase-money or other price pai<l remains subject to tht-ir 
 demands ; and if they allow the debtor to spend or make away 
 \vith it (v) it is their own fault that they did not proceed against 
 him (?'.') ; and, having stood by and allowed him to do so, they 
 cannot afterwards compel the innocent purchaser to make <'ood 
 that which has been lost through their own laches. 
 
 This is well illustrated by the case of Cojyis v. Middldon {x), CopU v. 
 in which creditors sued to set aside a sale, by an uncle to his ^^^<^'^^^- 
 nephew, of an estate which had been let to the nephew's father 
 and mother for a considerable time, and had been improved and 
 put into repair by them. The plamtiffs relied upon relationship, 
 the inadequacy of price, and the insolvency of the uncle at the 
 time of the sale. Sir T. Plumer held, first, that there is no fraud Sale to a 
 in selling to a relation. If, on account of his relationship, he 
 sold it for less than he would have done to another, that might 
 be material ; but if he treated with him as he would have done 
 with a stranger, the contract was valid (,?/). Secondly, the Inadequacy of 
 inadequacy of j)rice was not clearly shewn, and would not of 
 itself avoid the sale. And thirdly, as it was not proved Insolvency of 
 that the uncle, when he sold the estate, knew that he was insol- y^.ii^]^ the 
 vent ; and as it was proved that the nephew did not know it, the P"['J,'^q'^,.'" *^"^ 
 nephew^ was a bona fide purchaser, without having at the time of 
 such conveyance any manner of notice of the covin, fraud, or 
 collusion, and therefore the sale was good (~). 
 
 The benefit of this section has been extended to cases in Purchaser of a 
 
 - settlement for 
 
 which the purchaser, innocent of any fraud on the part oi the third j^arties is 
 owner of the property, has, by making a loan or payment, become J^Viso.^ "^ 
 
 (m) See Deweij v. Bayntun, 6 East, not admit that a man may not enter into 
 
 257, 282, ante, p. 55, post, p. 87 ; In re a contract with a relation and give him 
 
 Johnson, 20 Cli. D. 397, S. C. 51 L. J. better terras than he could to a mere 
 
 (N.S.) Ch. 503. stranger " : vide post, p. 24G ; and see In 
 
 (v) See French v. Freiich, 6 De G. M. re Johnson, 20 Ch, U. at p. 397, S. C. 
 
 & G. 95, post, pp. 8G, 87. 51 L. J. (N.S.) Ch. 503, supra, pp. i<-2, 
 
 (w) Copis V. Middleton, 2 Mad. 430. 83. 
 
 (a-) 2 Mad. 410. (2) In re Johnson, 20 Ch. D. 389, S. C. 
 
 (y) But in Jloore v. Crofton, 3 J. c^ 51 L. J. (N.S.) Ch. 503 ; Ex parte 
 
 Lat. 443, Lord St. Leonards said, " I do £yre,UL. T. (N.S.) 922.
 
 Ol: CONVEYANCES FOR VALUE 
 
 a purchaser, not for his own bGnefii, but for the purpose of 
 inilucinLC the settlor to settle the property on his own family (a). 
 
 Holmes v. In Holmcs V. Penney (b), C. J. P., who was lariiely indebted, was 
 
 PtiDui/. entitled to a life interest in a trust fund. 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 arrangement 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. informed 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. 
 Xow in this case the conduct of the settlor was not altogether 
 free from mala 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 purcliaser, 
 by paying the debts, of the settlement, and that he did not know 
 an}i:hing of the plaintiff'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 tlic proviso and the deed lield valid. 
 
 Family So a purchase of a son's reversionary interests by his father for 
 
 arrangement. 
 
 value to enable the son to pay his debts, and 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 cliose (r). 
 
 In re Johnson. In Iii re Johnson (d), Judith Johnson by deed of gift granted a 
 farm and crops (being all her property) in trust for her daughters, 
 
 (a) Xunn v. Wihmorc, 8 T. K. 521 ; Qi) Ubi supra. 
 
 TJiomjJSon v. Webster, 4 Drew. G28 ; (V) Er imrte Eyre, 44 L. T. (N.S.) 922. 
 
 Holmes V, Penneji, 3 K. & J. 90; Bays- {d) 20 Ch. D.389, S. C. 51 L.J. (N.S.) 
 
 pooh V. t'oUins, L. K. C Cb. 228. Cb. 503.
 
 AS AGATXST CREDITOr.S. 83 
 
 in consideration of wliifli ilioy eovcnaiilod to \>;\y all ili-lts 
 ineuiTcd by lior u]) lo tlic date of the deeil in coiiin'ctiou with 
 ilie working and management of the said farm and lo maintain 
 Iier. Tlie plaintiff was a creditor of .liidiih dohnson, at the dale 
 of this deed, in respect of a debt of £120 not incurred by licr, 
 but which she had taken over by giving a promissory note for 
 the amount of it. It was said by Lord .lustici; 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 impor- 
 tant to inquire what was the indebtedness of Mrs. Johnson when 
 she executed the deed. She appears to have had some currcni 
 debts, mostly, if not entirely, in respect of tlie farming busi- 
 ness It appears by the evidence that Mrs. Johnson was a 
 
 person of good repute among her friends as a respectable and 
 
 lionest 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 conclusion tiiat the intention of the 
 parties was to make a perfectly honest family arrangement, under 
 which the daughters were to undertake the burden of paying 
 tlieir mother's debts, and, in consideration of that, to take innne- 
 diately that farm which, in all probability, they would otherwise 
 
 have received by will upon their mother's death It 
 
 a])pears plain that though valuable and good consideraiion 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 tlie 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, and if it is not a l)adge of fraud, or evidence of an 
 intention to defeat creditors, it has no relation to the case." 
 
 It seems that it is l)y an extension of the protection of this Ex posi fncto 
 •^ considcraliuo. 
 
 section to a purchaser from a volunteer that an ex post facto con- 
 sideration is allowed to make valid a conveyance which at its 
 creation was liable to be upset by creditors or purchasers (c). 
 So a voluntary b(jnd assigned for value becomes good against 
 
 (0 Doi V. Marti/r, 1 B. & T. (N. R.) 332, ct infra, pp. 315 ct scq. 
 
 G 2
 
 84 CONVEYANCES FOU VALTJE 
 
 creditors in the liaiuls of the assignee, in the absence of 
 fraud (/). 
 
 But, ioY a deed to be within this proviso, its words and inten- 
 tion must be fully satisfied, and, as laid down in an old case (f/), 
 "Good con- the words "good consideration " in the statute are to be taken to 
 means vain- mean " Valuable consideration." To come within the proviso of 
 
 able consulera- ^j^^ q^-^^ section, a conveyance must be hofh for valuable con- 
 tion. '' 
 
 sideration 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, if it be not on a 
 
 Bona fides good consideration, is not within the proviso ; but it ouglit to bo 
 
 consideration. ^^^ ^ o^^^ consideration, and also bona fide " ([/). 
 
 Considerations Conveyances grounded on meritorious consideration alone (h), 
 
 toHousor"' c^i' on a consideration entirely inadequate (i), are looked on as 
 
 Hiadeqnatc. voluntary ; the question of what conveyances are voluntary will 
 
 be elsewliere discussed (k). 
 
 What con- The subject to be discussed in tliis chapter is this : "What con- 
 
 though for veyances are void against creditors for want of good faith, 
 value. although made for a good and valuable consideration ? 
 
 If deed for When a deed is made for value, the question is, whether it 
 
 ofpixiofon ^^'f^s made bond fide ; and the burden of this proof is upon those 
 
 ia.i,eaclier; .^^.j^^ ggg]^ ^q gg|. j^gjjg t|^g j^^^;^ ^j^^^ rpj^^ ^^^^ ^^^^^ ^j^^^,^ .^ 
 
 valuable consideration shews at once that there may be purposes 
 in the transaction other than the defeating or delaying of cre- 
 ditors, and renders the case, therefore, of those who contest the 
 deed more diflicult (m). 
 and actual Those who seek to impeach a deed executed for valuable con- 
 
 in'tlnrmusTbc si^^ti^ation have to prove an actual and express intent to defeat or 
 proved. delay or defraud creditors in the parties to the deed (m). Thus, 
 
 it would not be enough to avoid a deed for value if it could be 
 
 (/) Payne v. Mortimer, 4 De G. & J. Jlatheirs v. Fcaver, 1 Cox, 280 ; Strong 
 
 447. V. Stronrj, 18 Beav. 408; Jiaijsjwole v. 
 
 (g) Tvijne's Case, 3 Bep. 80 b ; for- Collins, L. W. G Cli. 228. 
 
 lett V. llndcliffe, 14 ]\Ioo. V. C. 121, 13.5 ; (A) Post, pp. 243 ot seq. 
 
 iViddleton v. J'ollacJc, 2 Cli. D. 108 ; In (/) In re Johnson, 51 L. J. (N.S.) Cii., 
 
 re Johnson, 20 Ch. D. 389, S. C. 51 L. J. per IJag.^allay, L.J., at p. 504. 
 
 (N.S.) Cb. 503. („,) /„ re Johnson, 20 Ch. D., per Fry, 
 
 (/() Ante, pp. 70, 77 ; post, p. 245. J., 393. 
 
 (0 Doe V. Itoutleclge, Cowp. 705 ;
 
 AS AGAINST CREDITORS. 85 
 
 shewn thai the result of sueli a duiiil had lici-ii U) delay (ir exclude 
 creditors (n). So the mere fact of a liuiul lidc creihlor l)eing 
 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 ihu mere fact of oiher 
 creditors lieing provided for, is not sullieient to shew what 
 has been called an express intent to defraud cii'ditors (j>). So a 
 payment is bona fide within the statute, ahhough the payer 
 was then insolvent to his own knowledge, and c\'en thougli the 
 creditors who accepted the money knew that (q). 
 
 A fraudulent intention, to which the purchaser was a party, Mala Mvs of 
 will override all inquiry into the consideration (r). surn'rlijllcrtuiy 
 
 Thus, in Cadogan v. Kennctt (s), Lord Mansfield, speaking of the «;';"f ^"''i'""- 
 statute 13 Eliz. c. 5, says: "The statute does not militate against A'chhc/*. 
 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 valuahlc 
 consideration will not alone take it out of the statute. I have 
 known several cases where persons have given a fair and full 
 jyrice for goods, and where the jiosscssion was actual/ // cliawjcd ; 
 yet, Ijeing done for the purpose of defeating creditors, the transac- 
 tion 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 defendant, and gave a full 
 price for them {t). The Court said the purchase, being with a 
 manifest view to defeat the creditor, was fraudulent, and therefore, 
 notwithstanding 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, because the x>v:rposc is 
 
 (») i^/-ecwaMv.Po2;e,L.R.5Cli.atp.541; (r) Sco Bolt v. Smitli, 21 Bcav. .'.11, 
 
 /)ire/o/t?isoM,20Cli.D.atpp.31)3,394. 517; Acraman\. Curbctt, I J. & IK'ni. 
 
 (o) Holmes v. Fenneij, 3 K. & J. 90 ; 410, 422-3 ; E.>: parte Chaplin, 20 Ch. D. 
 
 In re Johnson, 20 Ch. D. at p. 397. 319 ; post, p. 97. 
 
 (2^) Middleton v. Polloclc, 2 Ch. D. (.s) Cowp. 434. 
 
 102 ; Ex parte Games, 12 Ch. D. 314 ; (0 The fraud here Hcenis to havo con- 
 
 In re Johnson, b\ L. J. (N.S.) Ch., per sisted in coiivertins property liable to 
 
 Jcssel, IM.l?., 504. sequestration into property not so liable, 
 
 {>l) Middkton V. Follod, 2 Ch. D. at p. after the decree ; see supra, pt. ii. ch. i. 
 108.
 
 86 CONVEYANCES FOR VALUE 
 
 iniquitous. It is assisting one man to cheat another, which the 
 law will never allow." 
 Tinjne's Case. Tu-yncs Case (u), decided only ten years after the passing of 
 the statute, has always been regarded as a leading authority on 
 this point ; there Pierce was indebted to Twyne in £100 and to 
 Chamberlain in £200. ClianiberLiin 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 £100. Pierce, however, still 
 continued in possession of the goods ; selling some of them, and 
 exercising other acts of ownership over them, as if, in fact, no 
 gift of them had Ijeen made. Chamberlain obtained judgment in 
 his action, and took out a ii. fa., the execution of which was 
 resisted liy Twyne, claiming under the gift to him ; and upon 
 this case the Lord Keeper, the Chief Justice, and the mIioIc 
 Court of the Star Chamber lield thai 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 property 
 given), yet there were such marks of fraud and mala fides as to 
 avoid it notwithstanding. At the present 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. 
 Proviso o)i7^ The benefit of the section is moreover strictly confined to the 
 purchaser'and purchaser and the interests created in his favour ; so that even 
 in '^under him where there is a bona fide purchaser tlie consideration received for 
 property sold by a debtor is now (v) liable to tlie same rules as the 
 Purchase- property would have been if unsold (vj). In French v. French {x) 
 noTbe "ken a man made over his business, stock-in-trade, and fixtures, in con- 
 crcditore!^'^'''^^ sideration of a sum of money paid down and an annuity (one- 
 sixth of the net profits of the business), to be paid to himself 
 during the joint lives of himself and the purchaser, and after- 
 wards a smaller annuity to ]iis wife, during the joint lives of her 
 and the purchaser, in case she survived him, with power to him- 
 
 («) .1 Piep. 80 b. M. & G. 547 ; French v. French, G De G, 
 
 {v) Since the passing of 1 & 2 Vict. c. M. & G. 0.3; Xeak v. Da>j, 28 L. .1. 
 
 IIU ; see ante, p. 22. (N.S.) Ch. 4.5 ; In re Johnson, 20 Ch. U. 
 
 («■) Christ's Iloxpilal V. Bitihjm, 2 397, S. C. 51 L. J. (N..S) (Jb. 503. 
 
 Vera. 683 ; Goldsmith v, Eussell, 5 JJe G. (.r) De G. M. & G. 95, 
 
 I
 
 AS AGAINST CREDITORS. 
 
 87 
 
 self to dispose of his wife's animity ; and it appeared that llic 
 
 annuities were ^-ranted for the name and ^ Iwill ,,{ ih,.. Imsiness 
 
 and were to be collaterally secureil by policies of assurance. 
 On the vendor's death the wife's annuity was impeached by his 
 creditors. Lord Chancellor Cranworih said [hat the annuity to 
 the widow clearly formed a portion of the consideration whidi 
 the vendor, instead of keepino- himself for the benefit of lii.s 
 creditors, chose to keep for the benefit of his wife; such a 
 transaction was frauduleuL against creditors, and was an attempt 
 to abstract from them what tlicy were entitled to look lo for ].av- 
 ment of their debts. The sale was valid, jjut the consideration 
 which was paid must be taken to have been voluntarily settled 
 l)y 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 voluntary 
 settlement in favour of his wife." This was approved and 
 followed under very similar circumstances 1 ly Lord Hatherley 
 (then A^ice- Chancellor Sir W. V. Wood) in Mrilc v. lJa>/ (ij). 
 
 This principle is applicable to every case in which, though full f;onsi<lcratlon 
 consideration is given, it is given in such a way as to defeat the dSucTtredr- 
 creditors (.:) ; 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 {l>), as in an old case, where a man invested 
 money in mortgages and bonds taken in the joint names of him- 
 self and his wife, and she, after his death, was held a joint pur- 
 chaser ; but Lord Harcourt " admitted, in case of creditors, it might 
 be fraudulent " {>■). 
 
 In Spencer v. Slater {d) an insolvent debtor assigned all Ins Spcnrtr t. 
 
 ill) 28 L. J. (N.S.) Ch. 45. 477; Bott v. Smith, 21 Bcav. fjll, ol7 ; 
 
 {z) iSt'dcman v. Ashdown, 2 Atk. 477, and sec Cudogan v. Kcnndt, Cowp. 4ol, 
 
 as explained in Bott v. Smith, 21 Beav. et supra, 
 oil, 617. (c) Christ's Jlonjiital v. Dudijiu, 2 
 
 (o) DcK-eji V. Baijntnn, G East, 257. Vern. 683 ; and see Chrislij v. Cvur- 
 
 {b) Christ's Hosijital v. Budr/iii, 2 tcnay, 13 Bcav. 96. 
 Vern. 683 j Stikman v. Ashdown, 2 Atk. [d) 4 Q. B. D. 13,
 
 88 CONVEYANCES FOR VALUE 
 
 Assignment to property to trustees upon trust to carry on his business, or to get 
 creditors. ii^ ^^^^ realize his property, as his trustees deemed expedient, and 
 to apportion the residue of the proceeds, after payment of 
 expenses, according to an equal pound rate among his creditors. 
 The deed ]»rovided that its execution or assent 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 tlie trustees to the debtor. The deed 
 also contained a covenant by the executing or assenting credi- 
 tors to indemnify the trustees against any personal loss or risk 
 they might sustain, except from their own wilful negligence or 
 default, by reason of their proceedings under tlie deed. It was 
 admitted that the deed was executed by a trader then insolvent 
 for the purpose of defeating any execution, including one then 
 apprehended and for the purposes stated in the deed. It was 
 held that the deed was void under the statute, because its effect 
 was to defeat 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, irrespective of the wishes of the creditors, 
 also subjected them to delay and risk of losses, and clearly tended 
 to defeat and delay them. 
 Boidcro V. But in Boldcro v. TJw London and Westminster Loan and Dis- 
 
 Wentimnster count Company (c), debtors, in trade and then insolvent, by deed 
 ^iJitcounf assigned to trustees «// their estate and effects on trust to sell the 
 Company. same and to divide the residue of the proceeds, after paying 
 expenses, rateably among the creditors parties to the deed, and, if 
 the trustees thought fit, also to creditors who refused or neglected 
 to execute the deed, or to the debtors. The deed also empowered 
 the trustees to carry on the trade if thought expedient, and to pay 
 maintenance to tlie debtors, and contained a covenant by the 
 executing creditors to indemnify the debtors and tlie trustees in 
 respect of certain bills of exchange and promissory notes ; and the 
 creditors further released the debtors from all deljts, actions, &c,, 
 which they, the creditors, might have up to the date of the deed, 
 (c) 5 Ex. D. 47 ; Green v. Drancl, Times Rep. (1884), 79.
 
 AS ACAINST CKEDITORS. gQ 
 
 It was held ilmt this (loud was not void imdrr ihe .sLatiilL-. The 
 statute did not touch the question of equal distrihution d' assets. 
 The assignment, therefore, thougli it preferred certain cre(Htnrs and 
 tended to defeat the others, might he good. 
 
 This case was distinguislied from Spmrn- v. I^hihr (/) hecause 
 the primary ohject of tliis deed was a IranslVr l'..r purposes of sale 
 as a going concern, and not for tlie purpose of carrying on the 
 business ; the resulting trust in that case went far beynnd tlic 
 ordinary resulting trust in such a deed ; and also the indenmity. 
 In SiJenccr v. Slater (/) the ground (.f the decision seems really 
 to be that the assignment was not for the Ijciielit of the creditors, 
 but for that of the debtor. 
 
 The intention to defeat the rights of creditors, when properly Frai.,l..I.nt 
 established, is sufiicient to supersede any consideration. So even ri!le"mi'y "'"" 
 the considei'ation of marriage, though tlie hi-^liest known t<» our ''^.'"'''''." '"""• 
 
 " ' sidcratioii; 
 
 law, wdl not support a transaction without bona fides {<j) ; and if 
 the Court finds that the sacred nature of that consideration has 
 been profaned, and that the ceremony of marriage has been re- even of 
 sorted to as a mere pretence and cloak for a fraud, and linds clear "''"^""''"' 
 evidence that it is a fraudulent marrirujc, it will l)e set aside on 
 the ground of the insolvency or embarrassed circumstances of the 
 husband, or as fraudulent against his creditors, on a subsequent 
 bankruptcy (A). 
 
 Thus, in CulomUnc v. Penhall (/), a solicitor and money Jrnrrinpe 
 scrivener married a woman with whom he had cohabited f"r get aTlc"* 
 seven years previously, and, Ijy a deed of settlement and f'o>oii,i>;„c v. 
 articles of assignment, executed prior to the marriage, conveyed 
 the whole of his property red and personal to trustees, uitou 
 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. Innnediately after 
 the marriage the power was exercised in favour of tlie illegitimate 
 
 (/) 4 Q. B. D. 13. Thompson, 1 Gift', (m. Tluit a niarriago 
 
 {(j) Cado(jun v. Kcnndt, Cowp. 432 ; may be a fraiul on tlie bankniptcy laws, 
 
 Campion \. CWtow, 17 Ves. 263 ; Harden sec Uiguihotham v. Ilulmc, 13 Vcs. t^y ; 
 
 v. Green, 12 Beav. 182 ; Fraser v. and an act of bankruptcy, Ex purtc 
 
 Thompson, 4 Dc G. & J. 659, 662 ; Manor, Mont. 202. 
 
 post, p. 332. {/) 1 Sin. & Gilf. 228. 
 (/i) Per Sir J. Stuart, iu Fraser v.
 
 90 
 
 MARRIAGE SETTLEMENTS 
 
 jiait of llic 
 iiaud. 
 
 Buhmr V 
 Hunter. 
 
 cliikl. The property remained under 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 
 establish the settlement ; but Sir John Stuart held that the settle- 
 ment was itself an act of bankruptcy, and void against the 
 assignees, lie laid down llie principle that "where there is evi- 
 dence of an intent to defeat and delay creditors, and to make tlie 
 Marriajrc itself celebration of a marriage a part of a scheme to protect property 
 against the rights of creditors, the consideration of marriage cannot 
 support such a settlement." 
 
 In Bvlmer v. Hunter (/.•) the settlor had lived with his liouse- 
 keepcr as man and wife for a long period prior to their marriage 
 in 18G7. The plaintiff was a creditor of the settlor in 1847, and 
 on tlie interest falling into arrears in 18G2, after vain efforts to 
 obtain payment, gave notice of trial on February 12, 1867. 
 The solicitor of the settlor also acted for the liousekeeper, and 
 prepared a settlement of all the settlor's jiroperty, which was 
 executed on Eeljruary 15, 18G7. Tlie marriage to(.)k place on 
 February 18, 1867. It appeared from the evidence that there 
 was no contemplation of a marriage till after tlie notice of trial 
 was served upon the settlor, and that the housekeeper was impli- 
 cated in the matter and knew all about the transaction before her 
 marriage. Sir E. Malins, V.C., said : " It is clearly established now 
 that marriage cannot he made the means of cornmittinf/ 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 Colonihinc v. Pcnlmll (/), and 
 the other cases on wliich that decision is founded, the settlement 
 cannot be supported. A marriage got up for the purpose of 
 defrauding a man's creditors, wlierc the intended wife is a party 
 to the frauil, will not lie sup])orted." 
 
 lUil the mere fact of the iiilcudiiig liu.sliand, or of ilu' intending 
 wife if the marriage is after December ol, 1882 (///), l>eing deeply 
 indebted will not make an ante-nuptial setllcmeiil void against 
 
 Ante-nuptial 
 settlements 
 good iiidcxis 
 the marriage 
 itself fraudu- 
 lent. 
 
 (k) L. R. 8 Eq. 46, 49. 
 (0 1 Sm. & Gifl". 228. 
 
 (m) 45 & 40 Viut. 
 19, 25. 
 
 C. ID, SS. 
 
 1 (1),
 
 WHEN VOID AGAINST CREDITORS. Ol 
 
 creditors, provided the marriage is entered into hmieslly and in 
 good faith (//). 
 
 When the marriage itself is honest, tlie question must be, not irmnrrl.pobo 
 whether the settlement is a fraud on tlie creditors, but wliether it ''.""*^^.''")"'-'''- 
 can be set aside without defrauding tlie wife, or, if the marria<'c <'<^"."-""* ** 
 
 n, -,. 1 01 10D1 .1 . ^ nvoidffl with- 
 
 IS atter I)eceml)er oi, lbb2, the parly in it who is innocent of the ""t injury to 
 
 fraud (rv). A settlement made in consideration of marriage Imrt^?"* 
 cannot be set aside by creditors of the husl)and, or of ihct wife if 
 the marriage is after December 31, 1882 (p), unless ii be ch-arlv 
 proved that lotli tlie intcntling ]iu«l»and and wife were jiartics to 
 the fraud (>/). It is not enougli to avoid sucli a settlement that 
 the intending husband ahm committed the fraud (7) ; nor, if the 
 marriage is after December 31,1882, that the intending wife alunc 
 committed the fraud. So even where there are strong circum- 
 stances shewing fraud against the creditors, such as a false recital 
 that the property was the wife's, a settlement enleied into in 
 consideration of marriage will be supported (r). 
 
 In Kevan v. Cmvfonl (.s), a settlement in contemplation of Amu. v. 
 marriage was made by a settlor, then utterly insolvent, which ^'*""'•^*"■''• 
 contained a false recital that the intended wife was a crechtor of 
 tlie settlor's for £20,000. The intended wife executed the setlle- 
 ment 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, 'MIX., said : 
 " Whether that recital were in or out of the settlement, the cove- 
 nant to settle the £20,000 in consideration of the marriage would 
 have been a covenant for value, and would have prevailed against 
 creditors. Wliy should the mere fact of the insertion of an 
 inaccurate recital, or untrue recital, vitiate the settlement, as 
 regards the wife, icho teas ignorant an<I innoeeut 0/ the fraud !■ I 
 
 {n) Buhner y. Hunter, L. 11. S Eq. 19, 25 ; and sec Griffith, Manicd Women's 
 
 46, 49; Kevan v. CrairfuriJ, Q Cli. D. rioi)ei-ty Act, .')tli cd. \'1[K 
 29; Parnell v. Stedman, 1 C. & E. (7) Ante, p. 78. Tliisisalso tlic law in 
 
 153. America: see Bump. Fr. C'oiiv. 2nd cd. 
 
 (0) Fraser v. TJionip.w)!, 1 Gift'. 40- 290, 291, 294; and in Upper Canada: 
 
 63; for the innocent party is a pmcliaser, MulhoUand v. Williattison, 12 Chy. 91, 
 
 and if not a party or privy to the fraud, S. (". 14 Chy. 291. 
 is within the proviso of the 6th section (/■) Campiun\. Cotton, 17 Ves. 26."'. 
 
 (ante, p. 78). (••>) 6 Ch. D. 29, 39 ; hundl v. .SV«/ 
 
 {l)) 45 & 46 \'ict. c. 75; ss. 1 (1), 2, man, 1 C. & E. 153.
 
 92 MARRIAGE SETTLEMENTS. 
 
 cannot sec why, and I entirely concur with the Vice-Chancellor, 
 that the settlement was for value given hy the wife — namely, the 
 consideration of marriage ; and that she was no party to the fraud, 
 and that it is unimpeaehahle t)n the part of the cnjditors." 
 
 Ante-nuptial In Ilardci) V. Gmni {t) Lord Langdule, M.lf., upheld a mutual 
 scttiraCtor- Covenant by husband and wife on their marriage to settle all 
 *^ert"'u\dd ^^^^'^"^cqulied property {u) on such trusts as the wife should 
 appoint, and, in default 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 {r) a man fraudulently obtained administration 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 (?/;). 
 
 (0 12 Beav. 182 ; but see Ex parte (r) Gibson v. Head, 17 W. R. 986. 
 
 Holland, L. R. 17 Eq. 115, where the {w) See also lilchardson v. Horton, 
 
 covenant was by the husband alone. 7 Beav. 112 ; post, pp. 165, 160. 
 
 (») See 40 & 47 Yict. c. 52, s. 47.
 
 CIIArTER Y. 
 
 BADGES OF FRAUD IN CONVEYANCES FOK VALli:. 
 
 Those who undertake to impeacli for mala fides a deed wliicli has Difflculiy of 
 been executed for vahiable consideration have a task of <^'reat !ie*i , ",'" * 
 difficulty to discharge (,r). The fact that there is valual.le lli'j";^-";"""- 
 consideration shews at once that there may he purposes in the 
 transaction other than the defeating or delaying f>f creditors, and 
 renders the case, therefore, of those who contest the deed more 
 difficult (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 nmst 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). 
 
 It is a question of actual and express fraud, and, as actual Aciunl fnuil 
 
 ... must 1-c 
 
 fraud is always a question of fact more than of law, it is im- provcil. 
 
 possible to lay down any definite and exact rules as to what is or 
 
 what is not fraud (It). To do so would be to give to persons 
 
 fraudulently inclined the power of evading the juri.sdiction of the 
 
 Courts by fresh contrivances which might be invented to elude 
 
 any invariable, inflexible rule (r). Fraud, in its legal sense, lias No '"^a"'*^''' 
 
 •^ ' ^ ' _ rule nH to 
 
 been defined as "an act unwarranted in law, to the prejudice of a what is fraud. 
 
 {x) Per Sir G. J. Turner, V.C, in 492; In re Johison, 20 Ch. D., iwr Fry, 
 
 Ilarman v. lUchards, 10 Hare, 81, 89 ; J., 394. But sco per Sir G. Drnni- 
 
 and sec Wakefield v. Gihhon, 1 (iiff. 401. well, B., in Harris v. liichdt, A II. & 
 
 (?/) In re Johnson, 20 Ch. P., per l''ry, N. .5. 
 J. 393. {b) lliihtm V. Penney, 3 K. k J. 0(i; 
 
 \z) In re Johnson, 20 Cli. D. 389, S. ('. In re Johnson, 20 Cb. U., per Fry, J., 
 
 51 L. J.(N.S.)Ch.503; andseepost,p.ll9. 393, 394, ami supra, p. 82. 
 
 {a Per Sir R. T. Kindersley, V.C, in (c) See Parkes' History of Court of 
 
 Hale V. Metropolitan, Jjc, Co., 4 Drew. Chancery, p. 508.
 
 94 
 
 BADGES OF FRAUD 
 
 But certain 
 circiinistiincf's 
 are badges of 
 Iratid. 
 
 Badges of 
 fraud in con- 
 veyances for 
 value : 
 
 1. Generalih/ 
 of gift. 
 
 Act of bciiik- 
 ruptc)'. 
 
 Conveyance 
 of irJiole 
 property to 
 trustees for 
 creditors. 
 
 Assignment 
 of ickole 
 property to 
 secure past 
 debt. 
 
 tliivd person, aiul nol tliat crafty villainy or grcssnoss of dcreit to 
 uliich ii is apjtlieil in (.•(HiniKin lanj^uauo " {(/) ; and ilicre are 
 certain circumstances which have always Ijcen looked upon as 
 " Ladies " of fraud ; that is, their presence will, unless satisfactorily 
 explained, he evidence of bad faith, while, on the other hand, 
 llk'ir absence will not necessarily rebut the existence of fraud. 
 
 The first mark of a fraudulent intention within the statute, 
 mentioned in Twynes Case (e), is the generalitt/ of the .yift ; it 
 included all his possessions and left nothing whatever for the 
 payment of his debts. 
 
 It has long been clearly settled that a conveyance by a trader, 
 and since the Bankruptcy Act, 1861, by a non-trader also (/), of 
 his v-lwle property, or what is substanlially the irlaile of his 
 jiroperty, to trustees for his creditors gcnmiUij was an act of 
 bankruptcy (/), and, when so declared, void. 
 
 The reason of this was twofold. Such a conveyance was 
 regarded as a declaration or admission of insolvency by the 
 debtor, and it was an attempt by him to defeat the great principle 
 of all bankruptcy la\v — namely, the equal distriljution of the 
 debtor's assets among his creditors. 
 
 Under the Bankruptcy Act, 18G9 {(j), a conveyance or assign- 
 ment in England or elsewhere of the irholc of a delator's property 
 (whether a trader or non-1 rader) to a trustee or trustees for the 
 benefit of his creditors (jcucmlhj was an act of bankruptcy, and, 
 when so declared, void. 
 
 By the Bankruptcy Act, 1883 (A.), tliis has been re-enacted. 
 The decisions, therefore, on the Act of 18G9 will apply to cases 
 under the Act of 1883. 
 
 An assignment by a debtor of his wliolc property, or of the 
 whole with a merely colourable exception, to a creditor as a 
 securitv or in satisfaction (ir i)aymcnt of a past debt only, even if 
 
 (d) Harman v. Flsliar, Lofft, 472, 476. 
 
 (e) 3 Rep. 81 a ; ante, p. 8G. 
 
 (/) WorsUy v. Demattos, 1 Burr. 467 ; 
 Lindon V. Sharp, 6 Man. & (ir. 895 ; 
 Stcirart V. ^food||, 1 C. M. & R. 777 ; 
 Datlon V. Morrison, 17 Yes. 103; /S';;u7/i 
 
 V. Cannon, 2 E. & B. .35 ; Robson, Bkcy. 
 5tb ed. 154 ct seq.; Yate Lee & Wace, 
 Bkcy. 2nd ed. 23 et seq. 
 
 (ry) 32 & 33 Vict. c. 71, s. G (1). 
 
 (h) 46 & 47 Yict. c. 52, s. 4 (1) A.
 
 GENERALITY OF GIFT. 95 
 
 by a iiicnl<4'a!Li-o, lias lon,^' liccii lidd lo lie frandiilciii uii<lfr ilio 
 bankru])loy law and an acl of li;inkni]»i('y, and, wIkmi so dccjiirod, 
 void, whatever the motives of the paitius may luivc! beiui, because; 
 it prevented the other creditors from issuin<,' execution (/). This 
 rule now applies to non-traders as well as traders. 
 
 The u;ronnd of this is that tlie necessary cllect of such an 
 assignment must be to prevent the debtor (if a ti-ader) carrvin^ 
 on his trade, and, wlu'Aher 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 (/«•). 
 
 So an assij^nmont by a trader of all his ]ivopcriy by wnv of 
 indemnity for which he receives no e(|uivalent from which bcnctii 
 may accrue to his general creditors has long l)een hebl an act of 
 bankruptcy (/). 
 
 If such assignment is partly as security for a past debt, ami .v-si-nnifnt of 
 partly as security for a substantial present (//() or ^iiture («) j.^' •'|^'|.'^'j[.[^j 
 advance or some other fair equivalent, it is not necessarily an ad and rurtlicr 
 of bankruptcy ; and the intent of the paities must be proved in 
 order to avoid the deed. 
 
 The question in determining this point is, not whether the 
 advance is great or small, but whether there is a bona fide inten- 
 tion of carrying on the business. To shew this, the amount of the 
 advance, or the value of the equivalent, is strong evidence tu prove 
 whether the parties really meant to enable the debtor to carry on 
 his 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 
 
 (/) Sm'dhw. Cannan,2 E. & 15. 35; Ex parte Ellis, 2 Cli. D., per :^rclli^ll. I...J., 
 
 2xtrte Fuxley, L. 11. 3 Ch. 515; In re. 7<(8 ; E.r. parte Greener, A^ L. .1. (N.S.) 
 
 Wood, L. K. 7 Ch. 302 ; Er parte Ellis, Bkcy. 7G ; Ex parte Ilauxwell, 23 CIi. D. 
 
 2 Ch. D., per Hellish, L.J., 798 ; Ex G26. 
 
 2nirte Field, 13 Ch. D. 106 n. ; and see (?i) Ex parte Dann, 17 Ch. I). L'T /" ■ 
 
 cases cited in Tie line's Case, 1 Sm. Ij. C. parte Wilkinson, 22 Ch. D. 78S ; Ex 
 
 8th ed. pp. 12 et seq. parte Fifhcr, L. Ti. 7 Ch., per Meliibh, 
 
 {k) Tornkins v. iSaffrey, 3 App. Cas. J-..T., G-12, and cases tlicrc cited ; nnd sco 
 
 213 ; Ex parte Chaplin, 26 Ch. D. 319 ; Jlobson, Bkcy. 5th ed. 161 et seq. 
 
 see Eobson, Bkcy. 5th ed. 156 et seq. (o) Ex parte Foxle;/, L. H. 3 Ch. 515 ; 
 
 Q) Worsleif V. Demaftos, 1 lUirr. 467 ; Ex inirte Fisher, L. W. 7 Ch. 6:i6 ; Ex 
 
 Leake v. Yomui, 5 E. & B. 955. parte Burton, 13 Ch. D. 102 ; Ex jxirte 
 
 (m) Ex parte Kinrj, 2 Ch. D. 256 ; Ex VhapUn, 26 Ch. D. 319.
 
 96 BADGES OF FRAUD : 
 
 bona fulc purchaser is not an act of bankruptcy, for the debtor 
 
 merely changes the character of his property {q). 
 
 Ausignment of So an assignment 1>y a trader of all his effects simply to secure 
 
 fir lidvaiice ^^^ advance is not of itself an act of bankruptcy (r) ; nor if to pay 
 
 alone. Q^f r^n existing charge or debt if made to carry out an absolute {s) 
 
 agreement bona fide entered into at the time of the loan, 
 
 Wliether the assignment of the wliolc of the debtor's pro- 
 perty 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) : — 
 
 L If there is a sul)stantial (v) 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 present 
 advance, which in this case is regarded as if it wtre a substantial 
 exception out of his whole property, and is really a present 
 equivalent to the debtor (r). 
 
 The act of bankruptcy is complete upon the execution of the 
 deed by the debtor (w)- But, of course, the act relied upon as an 
 act of bankruptcy must have occurred within the period allowed 
 by the Act for taking proceedings in bankruptcy (.'■). 
 
 Assignment of But the statute 13 Eliz. c. 5 had no such object (y). The 
 noron dllfr^^ meaning of the statute is that the debtor must not retain a benefit 
 
 account neces- 
 sarily fraudu- ^^^^ J]a.rter v. Fritchard, 1 A. & E. parte King, 2 Ch. D. 256; Ex jyarte 
 13 Elii c. 5 400; Ex parte Stuhhlnf<, 17 Ch. D. 58 ; Burton, 13 Cii. D. 102 ; Ex parte Field, 
 and sec llobson, P-kcy. 5th cd. 157 ct seq. 13 Ch. D. lOG n. ; Ex parte Dann, 17 
 {r) Re Cokmere, L. R. 1 Ch. 128; Ch. D. 2G. See Yate Lcc & Wacc, Bkcj-. 
 3Iercer v. Peterson, L. R. 2 Ex. 304, 2nd ed. 2G et seq. 
 
 S. C.3E.K. 104; and eec Lomax v. JBux- {v) In re Cokmere, L. R. 1 Ch., per 
 
 ton, L. R. 6 C. P. 107 ; Harrison v. CuJicn, Cranworth, L.C., 132 ; Mercer v. Pcter- 
 
 32 L. T. (N.S.) 719. soh,L. R. 3 Ex., per Cockburn, C.J., 100; 
 
 {h) Ex parte Fisher, Ij. R. 7Ch. 03G; Lomax v. Buxton, L. R. 6 C. P., per 
 
 Ex parte Izard, L. R. 9 Ch. 271; Ex Willcs, J., 112; and see Yate Lee & 
 
 parte Kinq, 2 Ch. D. 25G ; Ex imrte Wace, P.kcy. 2nd ed. 27 et seq. 
 
 Jfuuxtcell, 23 Ch. D. G2G. See Yate Lee (?/■) Jhnsford v. Wailon, L. R. 3 C. P. 
 
 & Waco, Bkcy. 2nd ed. 33 ct seq. 1G7. 
 
 (0 Lomax v. Buxton, L. R. G C. P. (x) 32 & 33 Vict. c. 71, s. G ; 4G & 47 
 
 per WiUes, J., 112. Vict. c. 52, s. G (1) C. 
 
 (m) See Hak v. AlhiuU, 18 C. V>. 515 ; (;/) AUonw Harrison,!,. R. 4 Ch.,per 
 
 Ex parte Foxlcy, L. R. 3 Ch. 515; Ex Gillard, L.J., G22, C25; post, p. 97.
 
 GENEBALITY OF GIFT. 
 
 for himself (;.). Whether the deed deals with the whole or only a 
 part of the grantor's property is under this statute innnaterial. 
 The essential thing is that the deed must bo bonu fide. 
 
 In Ex 2)(trte Games (a) the grantor executed a hill uf s;de hy _^^ ,^ 
 way of mortgage of all his tlien existing and after-acquired ^'"""•• 
 property to secure an existing debt and fuiuro advances. The 
 deed was barred by time from being availal)le as an act of bank- 
 ruptcy. It was there said 1)y Thcsiger, L.J. : " The c.idy remaining 
 point is whether the deed, not being availalile as an act of 
 bankruptcy for any purpose, is void under the statute of Elizabeth. 
 We may, I think, put aside for this purpose the fact that it is an 
 assignment of the wliole of the grantor's property, present and 
 future. For, in Alton v. Harrison (l), Lord Justice Gififiird 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 wIkjIo 
 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.' 
 Applying these remarks to the present case, and taking the 
 question to be, what it plainly must be, was the deed bond 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 w^as perfectly good under the statute of Elizabeth. The 
 consideration was a pre-existing debt and further advances, which 
 together appear to amount to nearly the value of the properly. 
 I can see nothing in the deed itself, or in the facts or the nature 
 of the transaction, to shew that it was not a perfectly valid 
 transaction, without any intention to defeat or delay the grantor's 
 creditors." 
 
 But still, viewed in connection with the other circumstance?, 
 this fact may be a badge of fraud. 
 
 In IJx 2^arte CJurplin (c) a trader executed an assignment of 
 
 (,-) Middleton v. Pollocl:, 2 Ch. D., per fi L. E, Ir. 32 ; and sec Allen v. Bennett, 
 Jessel, M.R., at pp. 108, 109 ; ante, L. E. 5 Ch. 577. 
 pp. 11, 12. {h) L. E. 4 Ch. 622. 
 
 (a) 12 Ch. D. 314; ^Smith v. Tatton, (c) 2G Ch. D. 319: sec judgment of 
 
 Fry, L.J., 336-338. 
 
 H 
 
 ;»/
 
 98 BADGES OF FEAUD I 
 
 substantially the ivlioh of his property in consideration of the 
 release of a debt of about £1370 (in the deed stated to be £3271) 
 and a verbal agTeement by the assignee to pay his creditors, but 
 whether the whole of them or merely his trade creditors was not 
 clear. The assignee paid out some executions and some overdue 
 rent, and made advances to carry on the business, which was carried 
 on in the assignor's name, by the direction of the assignee, under 
 an agreement in writing between them. The assignment was held 
 void, both under the Bankruptcy Act and under the statute of 
 Elizabeth, as necessarily delaying creditors in their ordinary 
 remedies. So a conveyance by an insolvent debtor of all his 
 property to trustees upon trust for his creditors equally on certain 
 conditions, with a resulting trust for the debtor as regarded such 
 creditors as did not come in under the deed, has been held within 
 the statute, because there was a resulting trust for the debtor, and 
 also as tending to delay or defeat creditors {d) ; but where the 
 resulting trust in such a conveyance was a merely common clause, 
 and the primary trust was to realize the business, the deed was 
 upheld {c). 
 
 Under this statute of Elizabeth, therefore, although the 
 generality of the gift is, when taken in conjunction with other 
 circumstances, a mark of fraud (/), for dolus versatur in generali- 
 bus (rj), yet it is no concluding proof, either under this statute or 
 by the common law (/;). 
 
 ^.Continuance The secoud badge of fraud mentioned in Twync's Case (i) is the 
 tn jjossesswn. ^^^^^^,^ continuance in jjossession of the goods, which is a subject 
 of sufficient importance to demand a separate chapter (IS). 
 
 ((/) S2Jencer v. Slater, 4 Q. B. D. 13. 
 
 (e) BoUero v. London and Westmln- Howell, 4 East, 1 ; Janen v. Wh'thread, 
 
 ster Loan and Discount Co., 5 Ex. D. 47 ; 11 C B. 406 ; Alton v. Harrison, L. R. 
 
 Green v. Brand, Times Rep. (1884), 79. 4 Ch. 622 ; Loans v. Jones, 11 Jur. (N.S.) 
 
 (/) Chamberlain v. Tinjne {Ticyne's 784; Mlddleton v. Pollocl:, 2 Ch. D. 104; 
 
 Case), F. Moo. 638; Stlleman v. Ash- Rr2)arte Games, 12 Ch.D. dU; Boldero 
 
 down, 2 Atk. 477, 481 ; Mathews v. Fea- v. London and Westminster Loan and 
 
 ver, 1 Cox, 280 ; Dig. lib. 42, lit. 8, par. Discount Co., 5 Ex. D. 47. But (as witli 
 
 17, sec. 1. other marks of fraud) the generality of 
 
 (g) Ticyne's Case, 3 Co. 81 a ; Stone v. the gift is stronger evidence of frand where 
 
 Gruhham, 2 Buls. 225. the conveyance is voluntary : see ante, 
 
 (A) Chamberlain v. Twyne, F. JIoo. p. GO. 
 
 638 ; Nunn v. Wllsmore, 8 T. R. 528 ; (/) 3 Rep. 81 a ; ante, p. SG. 
 
 Imjliss V. Grant, 5 T. R. 530 ; Mevx v. {k) Post, pp. 113 et seq.
 
 GIFT PENDENTE LITE. 99 
 
 The third Ladgo of fraud noticod in T,ryn(^s Case (J) is sccrm,. 3. ,Sca-ccy 
 This is alwcays evidonce, but not of itself conchisive evidence, of 
 fraud (ill) • as in Bijall v. IluUe (n), where a man made a mortn-a-o 
 of his leaseholds, which he mentioned openly, and also a iiiort"a"e 
 of his goods and chattels, wliicli he kept secret. Tlic suhject Is 
 intimately connected with the doctrine of continuance in p.jsscs- 
 sion, and will be there treated of (n). 
 
 The fourth badge of fraud noticed in Twijne's Case (p) is that f. Pemkntc 
 the gift was made iJendente lite. This is, wlien coupled with oilier ''''' 
 circumstances, suggestive of fraud, but, where the considerati(jn is 
 adefjuate, not a strong mark of a fraudulent intention. 
 
 A mere voluntary conveyance for the purpose of defeating an Voluntary 
 expected execution or other process for recovery of debts is SS'JJecu*" 
 invalid {q) ; and even as to conveyances on valuable consideration, *'°" ^■''''^• 
 the fact that they were made for such a purpose pendente lite has If for value, 
 been regarded as a circumstance of fraud (?■). So a conveyance fram/^ ^'^ 
 by an old man of his whole property to a son, in consideration of 
 a sum of cash and an annuity, after he had been served with a 
 debtor's summons was held fraudulent and void (s). It has long 
 been settled beyond dispute, that a sale of property for good con- 
 sideration is not, either by the common law or by the statute of 
 Elizabeth, fraudulent against creditors, merely because it was made but not void 
 with the intention of defeating a particular execution (t) ; up to reasou. ""^ 
 
 {I) 3 Rep. 81 a; ante, p. 86. Keimetf, Cowp. 434, Cora. Dig. vol. iii. 
 
 (w) 3 Co. 72 a; 3 Com. Dig. 296; p. 296, pi. 13; Ex parte Games, 12 
 
 Griffin V. Stanhojie, Cro. Jac. 454; Ch. D. 314; JSiJencery. 8later,4 Q. B.J). 
 
 Partridge \. Gopp, 2 Amb. 596; Wors- 13; Bolder o v. London and Westminster 
 
 ley V. Demattos, 1 Burr. 467; Latimer Ljoan and Discount Co., 5 Ex. D. 47 ; 
 
 V. Batson, 4 B. & C. 652 ; L^eonard v. Green v. Brand, Times Eep. (1884), 79. 
 Baker, 1 Man. & S. 251 ; Corlett v. (-s) In re Maddever, 27 Cli. D. 523. 
 
 Radcliffe, 14 Moo. P. C. 139; post, p. (0 Holhirdy. Anderson, 5 T. R. 235; 
 
 126. TI'ooJ V. Dixie, 7 Q. B. 892 ; Janes v. 
 
 (») 1 Atk. 165, S. C. 1 Yes. 348; Wlatbread, 11 C. B. 406; Piclcstoch \. 
 
 post, p. 116. Jjyster, 3 Mau. & S. 371 ; Benton v. 
 
 (0) 3IiddIeton v. PoUocl; 2 Ch. D. Thornldll, 2 IMars. 427, 430 ; Pdches v. 
 
 104 ; In re Johnson, 20 Ch. D. 389, S. C. Evans, 9 Car. & P. 642 ; Marlow v. 
 
 bllj.:i.(l^.'&.)Q,h.6Q^; Ex parte Chaplin, Orfjill, 8 Jur. (N.S.) 829; Follett v. 
 
 26 Ch. D. 319 ; post, pp. 126, 127. Wesley, 10 Jur. 327 ; Alton v. Harrison, 
 
 (j)) 3 Eep. 81 a; aute, p. 86. L. R. 4 Ch. 622; Johnson v. Oscnton, 
 
 (q) Ante, p. 70. L. R. 4 Ex. 107. The American law is 
 
 (r) Ticync's Case, 3 Rep. 80 b, 81 a; the same : see Banfteld v. Whipple, 15 
 
 Bott V. Smith, 21 Beav. 511; Jones v. Allen (Mass.), 13; Bump. Fr. Conv. 
 
 Bonlter, 1 Cox, 288, 295 ; Cadogan v. (Amer.), 2nd ed. 37, 38. 
 
 H 2
 
 100 FRAUDULENT 
 
 the day of delivery of the writ of execution tlie debtor may sell 
 liis property, provided it is not a mere trick (?/), or the considera- 
 tion a sham (?■)• 
 
 This was expressly decided in the case of Wood v. Dixie (w) ; 
 there the point was whether, where a debtor executes a bill of 
 sale by way of mortgage of his goods as a security for money lent, 
 the bill of sale is void if the object be to defeat an expected 
 execution. Coltman, J., told the jury that, if the intention of the 
 transaction was to defeat the execution creditor, the conveyance 
 was void as against him ; and the Court of Queen's Bench held 
 that direction wrong. The principle, however, is much older than 
 that case, and much more extensive. There the consideration was 
 money lent at the time, but it applies equally where the con- 
 sideration is an antecedent debt, for " there is no rule of law 
 One bona fide whicli prevents a man from prefeiTing one bona fide creditor to 
 creditor may j^j^Q^-j^^gj, » (^\ . ^^d a debt due is a good and valuable considera- 
 
 be prelen'ed to \ / ' 
 
 another, i[q^^ (^y^. And it seems clear that the doctrine on this point is 
 
 both at law the same in equity as at law, and a deed executed honestly for 
 and in equity. ^^^^ purpose of giving a security to the creditor, and not being a 
 contrivance resorted to for the benefit of the debtor himself, will 
 be valid (z) ; and this, even if the transaction is one which, if the 
 debtor had lived, would have been a fraudulent preference (a). 
 So a writ of sequestration cannot be defeated by a mortgage for 
 value made to a person with notice (b). 
 
 Fraudulent But under the policy of the bankruptcy laM's since the time of 
 
 underbTnk- Lord Mansfield, a fraudulent preference, if made on the eve of, and 
 
 ruptcy laws. 
 
 (m) Bunyanl v. >':!eahrool; 1 F. & F. (s) Fer Su-G. M. Giflard, L.J., in ^Z<o?i 
 
 321. V. Harrison, L. K. 4 Ch. G22, 626 ; Ex 
 
 {v) Michael v. Gai/, 1 F. & F. 409. jx<?-<e Games, 12 Ch. D. 314 ; and see 
 
 (w) 7 Q. B. 892. Hale v. Saloon Omnibus Co., 4 Drew. 
 
 (x) Per Gibbs, C.J., in Benton v. 492, in wliich Sir R. T. Kindersley ex- 
 
 Thornhill, 2 Mars. 430, S. C. 7 Taunt. pressed his approval of the decision in 
 
 149 ; Estwick v. Caillaud, 5 T. R. 420, Wood v. Dixie, 7 Q. B. 892. The case 
 
 424 ; Riches v. Ecans, 9 C. & P. 640 ; of Blenhinsojyp v. Blenhinsopp, 12 Beav. 
 
 and see Oicen v. Body, 5 A. & E. 28 ; 5G8, 1 De G. M. & G. 495, cited contra 
 
 Gooch V. Deakin, 1 New R. 95 ; Middle- in Pcachey on Settlements, p. 206, was an 
 
 ton V. Pollock, 2 Ch. D. 108 ; Ex parte attempt to defeat sequestration by a 
 
 Games, 12 Ch. D. 314. roluntari/ deed : see ante, p. 72. 
 
 (?/) Tinjne's Case, 3 Rep. 80 b; (a) Middldon v. Pollock, 2 Ch. U. 
 
 Middleton v. Pollock, 2 Ch. D. 108 ; but 104. 
 
 Bee post, p. 252. {h) Ward v. Booth, L. R. 14 Eq. 195.
 
 PREFERENCE. 101 
 
 followed l)y, tlie Ijaiikniptcy of tlie dcljlor, is Vdid ii;,'iuiisL liis 
 creditors, because it aims at }irL'VL'iitiiiL;' ilmt uiiual di.siriliutidii tif 
 assets among the creditors whieli has always hccu the nl.jwt of 
 those laws (c). The doctrine of fraudulent preference is entirely 
 for the purpose of distribution aiiKin.L;- the creditors generally, not 
 for the benefit of any single creditor (d). 
 
 A fraudulent preference arises where the debtor, in contenipla- When a 
 tion of bankruptcy — that is, knowing his circumstances to l>c such [crouMaiwT 
 as that bankruptcy must be, or will be, the probable result, though 
 it may not be tlie inevitable result — does, ex mcro motu, make a 
 payment of money or a delivery of property to a creditor, not in 
 the ordinary course of business, and without any pressure or 
 demand on the part of the creditor (r). 
 
 This formerly required the concurrence of the two following 
 conditions : — 
 
 The act must have been tlie free spontani'ous act of the 
 debtor without any pressure on the part of the creditor. 
 
 It must have been made by the debtor in contemplation of his 
 bankruptcy. 
 
 This last condition has been held to mean that the dclitor must 
 have been in such a hopeless state of insolvency that lie could not 
 reasonably hope to avoid bankruptcy, and that there need not be 
 any intention on his part to become a Itankrupt (/). 
 
 The Bankruptcy Act, 18G9 (g), contained tlie first statutory B,inkniptcv 
 enactment on the subject, winch is as loiiijws : — 
 
 "Every conveyance or transfer of property, or charge ilu'ivoii 
 made, every payment made, every obligation incurred, 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 giving such creditor a preference over the other creditors, shall, 
 if the person making, taking, paying, or suffering the same become 
 
 (c) Aklcrson v. Tem2)k, 4 Burr. 2235; (c) Xunes v. Carter, L. R. 1 P. C, iK;r 
 
 Croshi/ V. Crouch, 2 Camp. 168 ; JIurrjan Lord Wcstbury, .■}48. 
 V. Brundrctt, 5 B. & Ad. 289. (/) Cihson v. Jiouth. 4 M. .v G. K'.O ; 
 
 {(l) Ex parte Cooper, L. R. 10 Cli. see lloloou JJkcy. otli cJ. 107, 172, 173. 
 per Mcllisb, L.J., 511. (i/} Section 92.
 
 1 02 FRAUDULENT 
 
 bankrupt within three months 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). 
 
 Bankruptcy The Bankruptcy Act, 1883 (i), practically re-enacts this section 
 
 Act, 1883. ^^ ^j^g j^^^ ^j -^^Qg^ except only in the protecting clause, which is 
 
 as follows : — " This section shall not affect the rights of any 
 
 person making title in good faitli and fur valualile consideration, 
 
 through or under a creditor of tlie bankrupt." 
 
 Under the Act of 1883 a fraudulent preference is declared an 
 act of bankruptcy (/.■), which it was not under the Act of 1869 (/). 
 
 The cases decided under the Bankruptcy Act, 18G9 (;/(), arc 
 therefore authorities on the corresponding section of the Act of 
 1883, except with regard to the proviso in that section. 
 
 The Act of 18G9 considerably altered tlie old law of fraudulent 
 preference, leaving only the old law as to what was pressure as it 
 stood (»); and tlie decisions before the xVct of 18G9 nmst be 
 regarded only as guides, and not as substituting a standard for 
 that laid down in that Act (o). 
 
 What is a The conditions which must now co-exist for an act to be a 
 
 ^""fei^ence fi'^udulcut preference (subject, of course, to the proviso in favour 
 
 under Act of pcrsons claiming through or under a creditor of the debtor) 
 1883. i o o 
 
 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 (/))• 
 
 2. The act must be done with the view of giving the particular 
 creditor a preference over the other creditors (rj). 
 
 (/() The proviso extends to a ciisc of (n) Butcher v. >Stcad, L. E. 7 II. L, 
 
 the consideration Icing the payment of per Cairns, L.d, 81(3 ; but bcc Ex parte 
 
 a pre-existing debt : Ej: parte Xurlon, Tempest, L. Iv. G Ch. 7U ; E.c jx'rte 
 
 L. 11. 6 Kq. 397 ; Tomlcins v. Soffcru, Tupham, L. R. 8 Ch. 014. 
 App. Cas. 213. (o) Ex parte (h-iffith, 23 Ch. D. 69; 
 
 (t) Section 48. Ex parte Hill, 23 Ch. D. 095. 
 
 (/,•) Section 4 (1) C. (;') f^ec ante, p. 101. 
 
 (0 Ex parte ,Stuhbim, 17 Ch. D. 58. ((/) See post, p. 103, 
 
 \m) Section 92.
 
 PREFERENCE. ] 93 
 
 3. Within three niontlis of tlie dale of the act a iK-iiii..ii in 
 hankniptcy must have been prcsenteel whkh uhiiuaicly results in 
 the debtor's bankruptcy (r). 
 
 The words "witli a view of giving sucli cre-h'tur a ]. reference What i« pr- 
 over the other creditors" practically seem to mean the same ^'ISr^fi'^Tucc ' 
 thing as the word " voluntary " in the technical sense which it 
 
 hud under the old law (x). 
 
 The act under the old law was done "voluntarily " on/// if it 
 was not done under the iulluenee of pressure from the creditor (/). 
 There is no really definite test to decide what is or wliat is not 
 sufficient pressure to prevent the act being a fraudulent preference. 
 The principle, said James, L.J. (u), is that, in order to constitute 
 a fraudulent preference, the act nmst be the spontaneous act of 
 the debtor not bona fide originating in a demand or some other 
 step of the creditor. 
 
 And even if the pressure be sufficient, it must also be bona fide 
 on the part of the creditor. There must be no collusion between 
 the creditor who is being preferred and the debtor (v). 
 
 The desire to prefer or favour a particular creditor nuist be the 
 sii.hsianiial dominant motive or view operating on the mind of the 
 
 debtor, but it need not be the sole motive or view {ic). 
 
 The doctrine of fraudulent preference is not confined to cases To what caks 
 of payments made or securities given for ^xf-^;! debts ; it applies to pij^.s"'"' **'' 
 any transaction amounting to a disposition of })roperty whicli 
 places one creditor in a better position to recover his debt than 
 other creditors (x). 
 
 But the relationship between the parties to the transaction but only an 
 
 liotwopn debtor 
 aud cadilur. 
 
 (r) lie Liverpool and London Gua- (v) Ex parte Header, L. 11. 20 Eq. 
 
 rantec Co., 30 W. E. 378. 763 ; Ex parte Hull, 19 Cli. D. 580. 
 
 (s) Ex parte Bollund, L. R. 7 Cb., [w) Ex parte Gn'fitJi, 23 Cli. D. GO; 
 
 per Mcllish, L.J., 27. Ex parte Jlill, 23 C'li. D. GOo ; ExjHirte 
 
 (0 Rokson, Bkcy. 5tb cd. 1G8 et seq., LancaMcr, 25 Ch. D. 311 ; but see Er 
 175 ; YateLee & Wace, Bkcy. 2n(l cd.423 imrte Blackburn, L. K. 12 Ex. 358; Ex 
 et seq. ; Smith v. Pilgrim, 2 Cli. D. 127. JJorte Topham, L. W. 8 CIi. 61-1. 
 
 («) Ex parte Temped, L. E. 6 Ch. at (.'•) Ex parte Pearson, L. IJ. 8 Cli. 
 
 7-i ; and see Yats Lee & Wace, Bkcy. 2ud C07 ; EobsoD, Bkcy. 5lli cd. 171, 177. 
 ed, 425 et seq.
 
 104 
 
 BADGES OF FRAUD 
 
 But not under 
 13 Eliz. c. 5. 
 
 Secus as to 
 pref'ereuce 
 really 
 iVaudulent. 
 
 must, in the strict sense of the words, be that of debtor and 
 creditor {y). 
 
 But the statute 13 Eliz. c. 5, had no such object (~). It has no 
 regartl whatever to the question of preference or priority among 
 the creditors of the debtor {a). Under that statute a man may 
 pay one bona fide creditor in preference to, and for the express 
 purpose of defeating executions or other processes by, his other 
 creditors {h) ; 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 agreed to 
 accept a composition, a secret preference in favour of one of 
 them to induce him to sign the deed to which all the creditors 
 are parties is a fraud on the other 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 dis- 
 tribution of a bankrupt's property. 
 
 So where there is a bankruptcy or an arrangement with 
 creditors by composition or insolvency, when insolvency exists as 
 jjjj.™^'^^ ^^^^'® 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 himself 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 common law which applies to all such deeds {c). 
 
 In any ar- 
 rangement 
 \vitli creditors 
 
 {ij) Edwards v. Ghjn, 2 E. & E. 29 ; 
 Eo: parte Kelly, 11 Ch. D. 306 ; Ej: 
 parte Stuhhins, 17 Ch. D. 58. 
 
 (z) See ante, p. 96. 
 
 («) Jliddleton V. Pollock, 2 Ch. D. 1U4 ; 
 Ex parte Games, 12 Ch. D. 314. 
 
 {b) Alton V. Harrison, L. R. 4 Cli. 
 622 ; Ex parte Games, 12 Ch. D. 314. 
 
 (c) Leicester v. Base, 4 East, 372 ; 
 Coclcshot V. Bennett, 2 T. R. 763 ; Juclc- 
 son V. Lomas, 4 T. R. 166; *Smith v. 
 Cuff, 6 Mau. & S. 160; Alsagcr v. 
 fipaldiiKj, 4 Bing. N. C. 407 ; Wilson v. 
 Bay, 10 A. & E. 82; Bradshaia v. 
 Bnuhhav, 'S\. & W, 29 ; Ihrton v. 
 
 Biley, 11 M. & W. 492 ; Hiygins v. Pitt, 4 
 Ex. 312 ; iSniith v. Salzmann, 9 Ex. 53.5. 
 
 {d) Chesterfield v. Janssen, 2 Ves. 
 156; Middleton v. Lord Onslow, 1 P. 
 AVms. 768; Fawcett v. Gee, 3 Anstr. 
 910; iSpurret v. SpiUer, 1 Atk. 105; 
 Constantein v. Blache, 1 Cox, 287 ; Cid- 
 lingicorth v. Loyd, 2 Beav. 385 ; In re 
 Cross, 4 Do Ck. & Sui. 364. 
 
 (c) Jachnan v. Marsludt, 13 Ves. 
 581 ; Mare v. ,Sa>idford, 1 Giff. 288 ; 
 Rally. Dyson, 17 Q. B. 785; Dauylish 
 V. Tennen't, L. R. 2 Q. B. 49; M'Kewan 
 V. Sanderson,!,. 11. 20 Eq. 65; Ex parte 
 Milner, 15 Q. B. D, 605.
 
 IN CONVEYANCE FOR VALUE. l05 
 
 One of tlic most remarkable cases of a dfldor Iieiii;^ allowed lo General 
 
 defeat the execution of some creditors in favour of all, is where '^^T'""'?* '^'■'" 
 
 a debtor voluntarily assigns over his i)roi)erty for the benelil uf ;'^■''•^^"H'•"■l»^'^• 
 ^ , . . luroxfculion 
 his creditors, and such assignment is valid, though made for the vnlid, 
 
 express purpose of defeating a paiiicular creditor (/ ), and that 
 
 quite independently of any statute enabling a dclitur to enter 
 
 into arrangements with his creditors {g). 
 
 Plckstoch V. Lystcr (h) may be taken as an illu.^^tration of this p,rkMt»rk v. 
 doctrine. There an insolvent debtor, being sued by a creditor, ''-'*'"' 
 pending the suit and before execution, cxeculed an assignment 
 of all his effects to trustees for the benefit of all his creditors, 
 under which possession was immediately taken. It was held by 
 Lord Elleiiborough and the Court of King's Bench tliat the 
 assignment, though made with the intention of defeating execu- 
 tion under the pending suit, was not fraudulent against the 
 suing creditor. If the conveyance in this case was not good it 
 would break in upon the validity of all judgments confessed hy 
 executors or by the parly himself, where that has been done lo 
 give a preference to some particular creditor. No doubt, the first 
 motive in many of those cases, as well as in this, 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 U) 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 fuml 
 available for the whole body of creditors (i) ; this was not 
 a deed by which the party stipulated for a hcncjit to himself, but 
 all his property was fairly to be distributed amongst his creditors, 
 including this particular creditor ; and to hold such a deed 
 fraudulent would l)e contrary not only to Jlolhird v. Anderson (k), 
 
 (/) JDarvili V. Tcrri/, J I. & N. 811. 
 
 (q) Seo Bankruptcy Acts, 1861 (24 & (/) But Bce now tlic JJankruptoy Act, 
 
 25 Vict. c. 134), ss. 192 et seq. ; 1869 (32 1809, s. 6 (1), by whicli " conveyanccH ..r 
 
 &33 Vict. c. 71), ss. 125, 12(5; and 1883 a>^signnients " for the l>encfit of Hr. 
 
 (46 & 47 Vict. c. 52), ss. 18, 19. debtor's creditors generally arc acts of 
 
 {h) 3 Mau. & S. 371. See also the bankruptcy; re-enacted by ihc Bark- 
 
 older case of IStephenson v. Uai/icard, niptry Act, 1883, s. 4 (1) A. 
 rrcc. Ch. 310. {'■■) 5 T. H. 235.
 
 106 
 
 BADGES OF FKAUD 
 
 Holhird V. 
 Amhrson. 
 
 Judgment 
 coiil'essfd by 
 a judgment 
 debtor. 
 
 General con- 
 vcj'ance to a 
 trustee not a 
 creditor. 
 
 Judgment 
 conlessed for 
 larger sum 
 than neces- 
 earj. 
 
 but to all cases which have decided that a party, independently 
 of the Bankrupt Statutes, may convey away his property for the 
 benefit of all his creditors. 
 
 The case of Holhird v. Anderson {I) was even stronger. There 
 Charter, being indebted to Shepherd and Ilolbird, and being sued 
 to judgment by Shepherd, went to Holbird and voluntarily gave 
 him a warrant of attorney on which judgment was innnediately 
 entered, and execution levied on tlie same day on wdiich Shepherd 
 would have been entitled to execution and had threatened to sue 
 it out. Lord Kenyon said there was no fraud in the case. 
 Holbird was preferred by his debtor, not 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 warrant of attorney was given on good consideration and 
 bona fide, and the rule concerning creditors of unerpial degTces 
 does not apply inter vivos. So now a debtor in insolvent circum- 
 stances may, unless the transaction amount to a fraudulent pre- 
 ference within the meaning of the bankruptcy law, prefer one of 
 his creditors to another (m). 
 
 The principle of Pichstoch v. Lystcr (n) applies equally, although 
 the trustee for creditors is not himself a creditor, 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, includhig all the property of the debtor, is a necessary 
 element, and therefore no badge of fraud. AVhere, however, as 
 in Ilulhird v. Anderson (p), the assignment, or confession of judg- 
 ment, is to one creditor, and not to all of them, the fact that it 
 covers more property than is necessary for satisfying that debt 
 is a suspicious circumstance (q), and there must be no doubt that 
 
 (0 5 T. R. 23.5. 
 
 (m) Gladstone x. Pailiricl; L. li. G 
 Ex. 20.3, 209,211 ; M'uldleAon v. Folloch, 
 2 Ch. D. 108 ; E.r parte Games, 12 
 Ch. D., per James, L.J., 321. 
 
 (n) 3 Man. & S. 371, ct supra. 
 
 (o) Bowen v. Uramidfje, 6 Car. & P. 
 140 ; Boldcro v, London and Westmin- 
 
 ster Loan and Discount Co., .5 Ex. D. 
 47 ; Green v. Brand, Times Rep. (1884), 7f>, 
 (p) 5 T. R. 2.35. 
 
 I'l) Toiputt V. Wells, 1 jr. & g. pt. 2, 
 
 .30.j; Benton \. T/mrnliiU, 7 Tixant. 149, 
 2 ilans. 427 ; Hodgson v. Ken-man, b 
 T. R. 23G, 239, mentioned in Uolhird v. 
 Anderson.
 
 IN CONVEYANCE FOR VALUE. 107 
 
 there was a bonri fide debt owing (?•) or cdusideralion pjiid (.s) ; 
 
 but it seems that a debtor may confess judgment to a creditor fur 
 
 a large nominal sum, with a defeasance that execution shall only iMt-tiMurn 
 
 issue for sucli an amount as to cover the debt of that creditor "^Sou*! 
 
 and all the other creditors, for the purpose of making a rateable 
 
 distribution among them (/), 
 
 But, even independently of the banla'upt laws, a deed made to Dcod lo 
 defeat a particular execution, or in preference of one creditor over lion mShrU)' 
 others, must be on good and valuable consideration {n). ^""^ ^'"''"■■" 
 
 A conveyance by a debtor for the benefit of creditors to whom Convcynnro 
 the conveyance is not communicated, and who are not in any ,,'otcoTnintmi- 
 numner privy to it, will not be good against the other creditors ; '^"*'-'^ ^" ''^'''"• 
 for such a deed merely 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 sliall be applied for his own benefit ; 
 and the creditors generally, or tlie creditors named in the schedule, 
 are merely persons named there for the purpose of showing how 
 the trust property under the voluntary deed shall lie applied for 
 the benefit of the volunteers (r). 
 
 If a creditor has executed the deed, and been a party to it, and 
 assented to it, if he has entered into obligations 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, wlio is 
 not a party, and who has not assented to it (w). 
 
 All executor or administrator has as nmch power to defeat a Excnitor or 
 
 „ , 1 1 Ci- f n(lmiiii>lral"r 
 
 particular execution liy an assignment tor the general beneht ot ,„,^_y „,^j.„ f„r 
 all the creditors, on the principle of PlcMoch w. Lystcr i^'-), ^^^^H^^. 
 
 (r) Goss V. h'ecdc, 5 J. B. ^\oo. 19. Mlninrj Co. v. Atu-cll, L. 17. 7 Eq. TAl; 
 
 {s) Darvill v. Terra, G 11. & N. Kr parte Games, 12 Ch. D. :]2:3 ; ante, 
 
 807-11. P- '^-• 
 
 (0 Mcux V. Hovjell, 4 East, 1. .Sec {r) Waliri/ii v. CoutU, .'5 IMer. 70. : 
 
 also Slggcrs v. Euans, 5 E. & B. 307, Jlarlamly.Bhih, 15 Q.B. 113; Garmrd 
 
 explained in .Tohis v. Janiev, 8 Ch. D. at v. Lord Lauderdale, 2 Russ. & My. 4,-.l ; 
 
 p/^51, Jdonv. Woodfjatc, 2 My. & K. 402; ct 
 
 hi) BlcnUniiopp v. Bknlumopp, 12 infra, p. 433 ct scq. 
 Beav 5G8, S. C. 1 De G. 31. & (i. 405 ; ('0 Johns v. James,SC\\. D.at p. JoO. 
 
 n<M V. }imltl>, 21 Beav. Ml ; narVuu, (r) 3 M. & S. 371 ; and see Earl I one 
 
 V. BlsJioji, 29 Beav. 417 ; Beese ^Silver v. BIrjdeii, L. R. 5 Cii. 608.
 
 i08 BADGES OF FRAUD 
 
 his testator, if still living, wnuld have had {y) ; which, in fact, 
 comes to much the same as if the executor were to renounce 
 prohate in favour of an administrator chosen by the creditors. 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 
 and may give to whom it was never connnunicated (~). An executor may also 
 
 incfercnce by n-i •! i-- ^ j. • ^ • 
 
 confessing coufess judgment to a particular creditor, in order to give liim a 
 judgment. pi-efereiicc {a), on the principle of Holhircl v. Anderson (h), or 
 may give a preference to any particular creditor liy an assignment 
 or mortgage to him of any part of the testator's assets in pay- 
 ment of, or by way of security for, his debt (r). 
 Position of In soine respects, however, an executor or administrator is in 
 
 adminiTtrator ^ different position from that of a living debtor with regard to 
 how different creditors. He has only a limited power over the assets of his 
 
 from that ot j t. 
 
 debtor. testator ; not the right of absolute ownership, but nothing more 
 
 than a temporary possession for the purpose of distribution, and 
 may be regarded as a trustee for those who are interested in the 
 distribution. 
 
 An executor or administrator may, even after actions are com- 
 menced against him by a simple contract creditor, confess judg- 
 But only lueut ill favour of another creditor of equal degree (d) ; but it 
 
 creditoi's of ^^ ouly between creditors of equal degree that he can pay one in 
 equal degree, pi-efeience to another; and that only up to the time judgment 
 has been obtained in a creditor's administration action. But he 
 cannot after the appointment of a receiver in such action make 
 any payment to a creditor (r). 
 
 An executor or administrator cannot do what it was held the 
 debtor himself could do in HoWird v. Anderson (/) — viz., after one 
 creditor has ol)tained judgment, 1)ut before execution, confess 
 judgment to another creditor, so as to eiialdc him to put in his 
 
 (//) Wolrerhampton, (Or., JJankhif/ Co. (d) BUnulirell v. LorcrdeV, 1 Sid. 21 ; 
 
 V. J7«r67oH, 7 ]f. & N. 148. Prince v. XicJivhon, 1 I\Iars. 280, 5 
 
 (z) In re Sanders, 47 L. J. (N.S.) Cli. Taunt. ;J38 ; Li/ttktonv. Cross, 3 15. & C. 
 
 667. o22 ; Farhcs v. Dec, 3 Sw. .')31 ; Larking 
 
 (a) Williams V. Foirler, Sir. 407-410; v. /'or^o?i, 2 Beav. 219. 
 Lijttleton V. Cross, 3 13. & C. 322. (c) Jjarston v. Lord Orford, Colics, 
 
 (i) 5 T. R. 235 ; see also Muchrcth v. 229 ; Midth;i v. Ilussell, 2 S. & S. 227 ; In 
 
 Jackson, 1 M. & S. pt. 2, 408 n. re Iladclifc, 7 Ch. D. 733. 
 
 (c) Earl Vane v. Jiirjden, L. Pi, 5 C1-. (/) 5 T. R. 235. 
 
 663.
 
 IN CONVEYANCE FOR VALUE. 109 
 
 execution first, nnd defeat tlie first ju(l,t,anont. After tlic debtor's 
 deatli the race is for dlitninino- judj^'inciil, Iml wliilc he lives 
 iiuthinp; sliort of aiiual satisfaclion, a]):iri IVum ihc l.ankrupt 
 laws, will oust the dcl)toi's ri^lii of preference; for the lule as 
 to creditors of unequal tleL;Tees does not apply iuli-r vivos ('/). 
 
 In confessing judgment, not for llu; liciu'lii nf ;dl tlic creditoi-s 
 rateably, the executor or administrator will nut, it is apprehended, 
 be allowed to exhaust the whole estate for the l)enelit of 
 one creditor (//-) ; but he will be restrained to the amount oi the 
 actual debt due to the creditor to whom Uie judgiucnl was con- 
 fessed (i). 
 
 In Tolputt V. Wclh (i) an executrix confessed judgment to a tJvuu v. 
 creditor of her testator as well tVn- his own debt as for those of 
 several others of the creditors. It was held that this judgment 
 could not be pleaded in bar to an action brought against her by 
 another creditor of the testator, wIkj was not a party to, and 
 wdiose debt was not provided for in, the judgment cunfes.sed. 
 Lord EUenborough said {IS), unless an executor nn'ght confess a 
 judgment, his operations and duties might be suspended and 
 paralyzed by one creditor protracting his suit. To avoid this lie 
 may confess a judgment, but it must be to a creditor, nut a 
 stranger. " Now in this case Monday is a stranger quoad all but 
 £9. If, then, this judgment be good, it would go the length of 
 enabling an executor to confess judgment to a creditor, who 
 claimed a debt of Is. only, to the extent of £10,000, provided 
 the testator's debts amounted to so much, and this would not 
 be beneficial either to the executor or the creditor." 
 
 It has been said (/) that this overrules what was said l>y Rcconcilcablo 
 
 ^ ^ willi Mcux V. 
 
 Lawrence, J., in Mcux v. Hoicdl {m) : " May not a person, y/cwa. 
 indebted to several, without the imputation of fraud confess a 
 judgment to a trustee, to enable him to take all his property for 
 the benefit of all his creditors equally ? Does not a court of 
 equity act on the same principle in the distribution of assets ? " 
 
 {(j) Holbird V. Anderson, 5 T. K. (0 1 M. & S. pt. 2, .395. 
 
 239; Middleton v. Pollock, 2 Ch. D. 104. (k) Ibid. p. •t(r.'. 
 
 (/O See ante, pp. 94, 95 ; Earl Vane v. (/) 2 Wms. Kx. 8tli cd. 1039, n. ^y). 
 
 Hiyden, L. R. 5 Ch. GG8. ("0 4 East, 9.
 
 110 
 
 BADGES OF FEAUD 
 
 But it is sultniiltcHl that they are in unison. In Tolpuit v. 
 Welh (ii) tlie judunient was not confessed for the benefit of all 
 the creditors equally ; tlie debt of the creditor who was allowed 
 to upset it was not provided for ; and it has been shewn that 
 there is some difference between the case of a debtor himself 
 confessing judgment, and that of his executor doing so after his 
 decease (o). 
 
 After judgment in an administration action, an executor is not 
 at liberty to do any act which affects tlie relative rights of 
 creditors (jj), and cannot, therefore, waive his right not to pay a 
 debt barred by the Statutes of Lhuitation (tj) ; but he may do so 
 before judgment (r). 
 
 Whole trans- In f^U cascs of this nature, where the consideration is a fr- 
 action must be (,-,.yiiff. jgjj^ alone, or a prc-cxistinq debt and a further advance 
 
 nee from -^ > j. ^J 
 
 doubt. or advances, the whole transaction mnst be free from doubt. 
 
 Afier jiiJp:- 
 ment for ;iil- 
 ministratioii 
 executor can 
 not prefer. 
 
 Debt must be 
 proved ; 
 
 tides 
 
 The question always is, first, whether there was a bona fide 
 debt (s) ; and next whether it was intended by these means to 
 and tlie bona pay or sccure the debt, or whether tlui transaction was a mere 
 cloak by which the debtor intended to secure a benefit to him- 
 self (/). 
 
 But a deed will not be void merely because an interest in the 
 property is retained by the debtor. So where (u) A, by deed 
 assigned all his effects at W. to trustees for the benefit of certain 
 creditors for four years, with power of sale after two years, or 
 will not neces- jjefore, if A. should so direct, the proceeds to be applied in 
 
 sanly make it ' -^ 
 
 discharge of the debts of those creditors, and they covenanted 
 not to molest A. for two years, it w^as held that this assignment 
 was valid, and not witliin 13 Eliz. c. 5, and good against an 
 execution subsequently sued out. And llie mere fact of tlie 
 
 But a benefit 
 or interest left 
 in the debtor 
 
 fraudulent. 
 
 (h) 1 M. & S. pt. 2, 395. 
 
 (o) Ante, p. 108. 
 
 (p) Li re liadchffe, 7 Ch. D. 733. 
 
 ((/) Sheicen v. Vandcrhorst, 2 lluss. & 
 Ikfy, 75. 
 
 {r) Budgcn v. Harie, ?, ^\y. & ('\: r.S3. 
 
 (s) Bu'iiyard v. Seahrool; 1 F. & l'\ 
 321 ; Michael V. Go;/, 1 F. & F. 400 ; and 
 see FuUett v. We-ilei/, 10 Jur. 327. 
 
 {t) Ilolhlrd V. Anderson, 5 T. R. 235; 
 
 Ecelcifjh V. Purssford, 2 M. & Eob. 530 ; 
 Plckstoch V. Lyster, 3 Mau. & S. 371 ; 
 Mlddlefon y. Fotloch, 2 CIi. D. 104; Ejj 
 parte Games, 12 Ch. D. 314; Ex parte 
 Chaplin, 20 Ch. D. 319. 
 
 (m) Goss V, Neale, 5 J. B. Moo. 10, 21 ; 
 and see Holmes v. Fennc;/, 3 K. & J. 00, 
 100 ; Bolderov. London and Westminster 
 Loan and Discount Co., 5 Ex. D. 47'; 
 Green v. Brand, Times Kep. (1884), 70.
 
 POWER OF REVOCATION. 1 i i 
 
 settlor possibly taking some benefit under the settlement to the Settlor taking 
 exclusion of creditors (as where the settlement was to trustees *"""' ^"'•''''•' 
 to pay llio income for the benefit of the settlor, his wife and 
 children, in such way as they in iheir discn-lion should think lit) 
 lias been held not to avoid a dui'd wliidi was iioL voluntar}', 
 but as to which there was not perfect b(jiui lidi-s on the j.art 
 of the settlor (6-). The settlement was sup] )orted on the ,ur(nin.l 
 of its being a transaction for value, in wliicli llie ]iinvliaser ha<l 
 no notice or knowledge of the bad faith of the settlor («•). 
 
 In all cases the question is as to the hona fides of the Iransac- Q„e«tion 
 
 tion. If the deed is executed honestly for the purDosc of <^ivin'-' "V*'"!* . 
 
 a security to creditors, or of putting the proiierty out of ilif «ction is 
 . 1 / ^ •, • . , i. I J bundfide. 
 
 grantors control (./;), it is good; l)ut if it is a contrivance 
 
 resorted to for his own personal benefit it is void and has no 
 effect (y). 
 
 It is not, therefore, surprising to find that a power of revo- Powor of rcvo- 
 cation inserted in a deed has always been looked upon as a *^''""" 
 strong circumstance of fraud, and will in general make a deed Rtronij mark 
 void under this statute (s), although it contains no express pro- "'" '^^'""^' 
 vision avoiding conveyances with powers of revocation as against 
 creditors {a). The effect of such a power is of course to enable the 
 settlor to deal with the property after having affected to convey 
 it away. 
 
 And where there is a de facto power of revocation, although TIk.u-Ii not 
 not in express terms (as a power to mortgage to any extent), tcnils."^'"* 
 
 it is ecpially fraudulent against creditors {h). 
 
 So where (o) a husband and wife joined in settling property 
 
 {v) Jlolmcs V. Fennci/, 3 K. & J. 90, (:) Ilolcraft's Case, Dyer, '1\C, a; 
 
 lOU. Clarlh v. Ersjidd, Sir J. Bridg. •-"-• ; Ilex 
 
 (ir) Ciidogan v. Kenncit, Cow p. 4.']2, v. yottliKjliam, Lane, 42 : Pnthel v. 
 
 435 ; Miches v. Evans, 9 C. & P. G40 ; Sttmitope, 2 Cro. Eliz. 810 ; Jenhijii v. 
 
 Alton V. Harrison, L. R. 4 Ch. C2G; Vaiujhun, 3 Drew. 419, 427; Smith v. 
 
 Mmith V. Hurst, 10 Hare, 30, 45. See Hurst, 10 Hare, 30. See ante, p. 32. 
 
 ante, pp. 78, 79. This appears also to be the law in America: 
 
 (ur) Holmes \. Fennei/, 3 K. & J. 90 ; see Rump. Fr. Conv. Amer., 2nd cd. 210. 
 Cross V. Ncale, sM'^va.; MidiUetonw I'uUocl; [a) And see under 27 Eliz. c. 4,8. 5, 
 
 2 Ch. D. 108, 109; Ex parte O'aines, 12 post, pp. 209 et seq. 
 Ch. D. 314. (t) Tarhack v. Marburi/, 2 Vern. 510. 
 
 (,(/) Ante, pp. 11, 90, 97 ; Spencer v. Rut as to the terms of tiie power, see 
 
 Slater, 4 Q. B. D. 13 ; Ex parte Chaplin, note (3rd ed.). 
 2G Ch. D. 319. (c) Acraman v. Corhdt. 1 J. & II. 410
 
 112 BADGES OF FRAUD. 
 
 fit their decease on their children at twenty-one, with a power 
 of revocation, witli the consent of the trustees, in the event of 
 tlie birth of another cliild, and another cliikl was horn a few 
 months afterwards, Lord Hatherley (then Sir W. P. Wood, Y.C), 
 after commenting on the cniLarrassed circumstances of the settlor 
 and questioning whether there was any consideration for the 
 settlement moving from the wife, said : " She had a joint power 
 over Q., hut the ground on which I proceed is this: the deed 
 contains an extraordinary limitation, that all the limitations may 
 he set aside if any future children should be born ; and it is 
 clear that at that time there must have been an expectation of 
 a child being born. The intention, therefore, appears plainly to 
 have been to stave off a pressing emergency and nothing more. 
 It is impossible to say that any interest in the wife could sustain 
 a deed of that character." 
 
 For parti- But a power to revoke for a particular purpose may not make 
 
 cular purpose. ^^^^.^^ ^ ^^^^^^ ^.^,- j ^j^^ 
 
 {d) See Hungerford v. Earle, Freem. v. Keymis, 1 Lev. 150, Ilardr. 395, post, 
 Ch. 120; and as to purchasers, Jenlc'ms p, 214.
 
 CHAPTER YI. 
 
 COXTIXUANCE IN POSSESSION — HOW FAK A MATIK OF FRAUK. 
 
 The fact of possession not being taken l.y a i.iirehaser or donee Powei.ion not 
 when the sale or gift has apparently been completed is frequently jlenlly I"*' 
 a mark of fraud. This is so because it is evidence that the "**''' °^'^'^"''- 
 purchase or gift was never intended to have any real operation 
 according to its apparent character and effect (e), either tliat there 
 should be no substantial change of ownership, or that tliere was 
 a secret understanding in favour of tlie donor (/). 
 
 There are two leading distinctions to be carefully borne in mind 
 in tlie consideration of this question. 
 
 The first distinction is, what is the nature of tlie property ? 
 
 The principle wliich governs transfers of interests in land Difference 
 differs from that which governs transfers of personal chattels (//). anJ*wrUn«i 
 Personal chattels pass by actual delivery (/<), and ostensible P"'!*'^.^"- 
 possession is a tacit assertion of ownership on the faith of which 
 credit may naturally be given ; tradesmen may be induced tliereby 
 to supply goods, and debts may be contracted. But "with interests 
 in land it is otherwise ; no inference of absolute ownersliip is 
 necessarily deduced from the occupation of a house or farm ; in 
 fact, more frequently than not, the actual occupier has but a very 
 limited interest in the land. In the case of goods and cliattels, 
 possession alone is a prima facie title (i), and in the absence of other 
 cu-cunistances is held out to the world as a good title ; whereas 
 
 {e) Tinjne's Case, 3 Rep. 80 b: HaU see Bump. Fr. Conv. (Amer.\ 2nil e-l. 
 
 V. Saloon Omnibus Co., 4 Drew. 492. 122, 177. 
 
 (/') See Coke's advice to creditors tak- i7() Cadogan v. Kennett, Cowp. 4.;4 ; 
 
 ing gifts in satisfaction of their debts, 3 Ward v. Audland, 16 M. & W. 87<»: 
 
 Eeprsia: Ex parte ChapUn^^Ci Qh. D. Shomer v. PUch, 4 Ex. 478: Flor;, r. 
 
 319 ; and post, p. 247. Dennji, 7 Ex. 583 : post, pt. v. ch. ii. 
 
 (fj) So also in U.S. of America : Phett'i- (/) Phillips v. Earner, 1 Esp. .^•>.'>-358 ; 
 
 place V. Sayks, 4 Mason, 312, 321 : and Arvnddl v. Phipps, 10 Vcs. 139, H.'i. 
 
 1
 
 114 WANT OF rOSSESSION- 
 
 tlio occupation of laiul can he shewn lo he llie possession of 
 
 ownership or not hy the title deeds alone, so that it is to them, 
 
 and to whose possession they are in, tliat others have to look 
 
 before giving credit. 
 
 Mortgage of A mortgage nf land NviUiriui fiand eaii never be fraudulrnt, 
 
 land. . . • / 7 \ 1 1 J \ 
 
 merely because the mortgagor remanis ni possession (/.) ; but the 
 possession of ffoods not going with the title has always been 
 admitted as a badge of fraud (/) ; and the more nearly a chattel 
 approaches in its nature to an interest in laud the less is want of 
 possession an argument of fraiul (m). 
 
 Chattels But even for a valid transfer of property in chattels actual 
 without''^'^ possession is not in all cases necessary (n) ; and in general the 
 delivery. f^^^^j. ^.j^^^ ^^f^gj. ^i^g transfer the possession remains in the trans- 
 Want of pos- feror is only jww^a facie evidence of fraud (o). Where, for 
 Errvidencl instance, land is mortgaged with the chattels on it, it is not in 
 ofiraud. i\^q nature of the transaction that actual possession of the land 
 
 Mortgage of gliould be given to the mortgagee, and liis constructive possession 
 
 cliattels with i «-. • 
 
 land. of the land will, it seems, be sufhcient to prevent tlie mortgage 
 
 from being void against creditors, even as to the chattels, from 
 
 the want of actual possession (2^). And the same is the case in a 
 
 mortgage of fixtures, other than trade machinery, together with 
 
 the freehold by the owner of the freehold, which does not, so far 
 
 as regards the fixtures, require to be registered (7) as a bill of 
 
 sale (r). 
 
 So there is now no presumption of fraud if the mortgagor 
 
 retain possession of fixtures, whether consistently with the deed 
 
 or not ; because they pass like real estate by title, and possession 
 
 is no ground from which to infer ownership. So, unless fixtures 
 
 (Jc) Lady Lamhert's Case, S[\ep. Touch. man v. Pitt, 5 Esp. 22-5; Eastwood v. 
 
 65 ; Stone v. GrubJiam, 2 Buls. 225. Brown, Ry. & Mood. 312 ; Martlndale v. 
 
 (/) Neate v. Latimer, 2 Y. & C. Ex. Booth, 3 B. & Ad. 498 ; Carr v. Burdlss, 
 
 257, per Lord Abinger, at p. 26.^^. 5 Tyrw. 309 ; post, p. p. 121, 122. 
 
 (/n) Steicard v. Lonibe, 1 Brod. & B. (p) Steicard v. Lombe, 1 Brod. & B. 
 
 500,511. 506-11. 
 
 (n) MartindaU v. Booth, 3 B. & Ad. [q) Under 41 & 42 Vict. c. 31, ss. 4, 7 ; 
 
 498 ; Kidd v. RawUnson, 2 ]i. & P. 59 ; 45 &. 46 Vict. c. 43 ; see post, p. 149, and 
 
 Watldns v. Birch, 4 Taunt. 823 ; Meyer- Appendix Nos. III., IV. 
 
 stein post, v. Barber, L. R. 2 C. P. 51 ; (r) Mather v. Fraser, 2 K. & J. 536 ; 
 
 pt. V. ch. ii. see Ex ^^af'^e Moore and Jiobinson^s 
 
 {o) Arundell \. Phipps, 10 \ea. 139 ; Banking Co., U Ch. D. 379; post, 
 
 Eidd V, liawlinson, 2 B. &. P. 59 ; Iloff- p. 149. 
 
 I
 
 A BADGE OF FRAUD. ^ ^ - 
 
 are Kcverod, tliey arc not within llio order and disposition of a 
 person within the meaninc,' of the Bankruptcy Act (.s). 
 
 AVliere sucli a possession as the nature of the case a.Jniit.s If «ucl. po.M,. 
 lias heen <:;iven and taken at the time of the Iran^^fer th-ii ic "'"".?? *"' 
 
 '^'> iiiiiu 1^ jioKHiblc wai 
 sufficient (/). given it in 
 
 enou^'b. 
 
 ¥ov instance, "if a Ix.nd is assi-ncd the bmid nuisL he delivered, IlonJH require 
 
 and notice must he o-iven to the debtor; hut in assij^mnients of^*""''"^'' 
 
 book (kibts notice akuie is sufficient, because lliere can be no Ii.x>k dvLu 
 
 delivery; and such acts are equal to a delivery of -.x.ds wliich ""' 
 
 are cajxible of delivery" [n). 
 
 As to this diffi'renee between real and personal properiv. it 
 was said in I^i/all v. J,'oUr (r), "Possession can be no otherwise a 
 badge of fraud than as it is calculated to deceive creditors. As PossoMlon of 
 to the possession of goods, I have no other way of coming to tlie fro,lI-\!!!l.!'!' "' 
 knowledge of the owner l)ut by seeing who is in possession of •''"'l "'I" '"'""• 
 them ; but the possession of land is of a difi'ercnt nature, fur 
 a man may be in possession of lands as a tenant at Avill, as a 
 mortgagor is to the mortgagee, before the condition broken. A 
 purchaser may call for the title deeds, and need not he deceived 
 unless he will ; but this is not the case of goods where they are 
 left in the possession of the seller." 
 
 But though with respect to land tlic question whether actual When want of 
 and visible possession is or is not taken is in general of no gi-eal C'nmv'u!^ 
 imi3ortance,yet where there is such a continuance in possession as to •"'"»" J"'*-'"' • 
 prevent any substantial change of ownership the case is diflerenl. 
 In Eussrl v. Hammond (//•), Lord llardwicke said it was a plain 
 badge of fraud that the settkn- took liack an annuity to jiimself 
 and his wife for life of £27, which was probably tlie full value of 
 the estate comprised in the deed, and the father gave the son 
 nothing ; which is almost tantamount to a continuance in posses- 
 sion, and has always been deemed a strong circumstance of fraud. 
 
 (s) Rr2mrteI]arcIai/,5r)eC,.M.Sz(;. («) Per Lord :\[acclesfieia (then Sir 
 
 403 ; Holland v. Hod<j.^on, L. R. 7, C. 1'. Thomas Parker) in liijall v. lioUe, 1 .\tk. 
 
 328 ; and see Eobson, Bkc}-. otli ed. 532. 177, S. ('. llii(dl v. Bowles, 1 Ves. 307. 
 
 (0 Atkinson v. 2IaUn(i',2 T. K. 462 ; (v) 1 Atk. 105, 108, S. C. 1 Vcs. 343, 
 
 Manton v. Moore, 7 T. It. 71 ; Gough v. 300; and see per Lord Mansfield in ]Vor$- 
 
 Everard, 2 H. & C. 1, 8 ; 31air v. Glennie, ley v. Dematlos, 1 Burr. 477, 483. 
 
 4 M. & S. 240; post, pp. 123, 124. {w) 1 Atk. 13, 10; post, pp. 122et8eq. 
 
 I 2
 
 IIP, WANT OF rOSSESSlON 
 
 Mere fact of 111 •reufral. ihe mere fact that the veiuU.r or donor has, after a 
 ^e^tate"'^ s;Ue or gift, retained possession of the land, does not of itself raise 
 after sale or ^^.gjj .^ priiiid fac'w prcsmujifion <»f fraud. For that possession 
 
 mortgage no ' ^ j , , i i ■ i • ,1 
 
 evidence of niov properly be m one person and the legal title in another 
 '™"'^' person. It is to the possession of tlie title deeds of real estate 
 
 that creditors ought to look (.7). 
 
 Where virtual and substantial possession of land is ivtained by 
 
 retaining the title deeds, much tlie same rules are applicable as to 
 
 sales of personalty (y). 
 
 Is transfer of ^^^ second leading distinction in the consideration of this 
 personal Y>w. question is whether the sale or gift of the 'personal property is 
 
 perty absolute ^ 
 
 or conditional? alisolute or conditional (~). 
 
 Is mere fact of Willi regard loan absolute sale or gift of jJt'/yo/irr^ property 
 fe'r^rimaSde' ^^^^re has been a considerable conHicl of authority as to uhether 
 evidence of ^j^g j^gre fact of retention of possession bv the vendor or donor 
 
 of itself afforded rondnsive or merely pruna janc 2J}'csum2nirc 
 
 evidence of fraud. 
 
 Hi/all V. Hoik (zz), though a case on the 21 Jac. 1, c. 19, was 
 argued on the general question of possession. It was there said, 
 in relation to the condition of creditors where the debtor con- 
 tinues in possession of the goods mortgaged, that the statute 
 governing this matter was 13 Eliz. c. 5, in which there was no 
 (li.stinction whether the sale be absolute or conditional, provided 
 it was fraudulent. Courts of equity and juries were to consider, 
 upon tlie whole evidence, whether the conveyance was made with 
 a view to defraud or not ; conveyances for value were good, 
 " unless the circumstances 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 to defraud, 
 this has never been looked upon as fraudulent." With regard to 
 Ticynes 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 
 
 (j:)Ante,pp. 113,114. The same is the De G. &. J. 21; Clarle v. Pahner, 21 
 rule in America: see Bump. I'r. ('unv. Cli. D. 124; post, p. 197. 
 (Amer.), 2nd ed. 122, 177. (;) Post, p. 122. 
 
 (y) See Doe v. Ball, 11 .M. & W. o31 ; {zzj 1 Atk. 165, 107-8, S. C. J?,/aU v. 
 
 and see Perry-Hcrrich v. Atltvood, 2 Howies, 1 Yes. 348, 300. 
 
 (rt) 3 Rep. 80 b.
 
 I 
 
 A BAlXiE OF FRAUD. ' ' ' 
 
 to give him u false ajipeaiaiice of eii'cum,staii(;e.s and credii," Iml 
 that "possession can Ije no otherwise a hadge of fraud than as it 
 is calculated to deceive creditors." 
 
 In Jhiclcnal v. Eoidoji (h) Lord Cowpor made no distinction be- 
 tween 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 calcu- 
 lated as to acquire a false credit would have made the transaction 
 void, and that this must mean such ])ossession as would give false 
 credit, so that all that is laid down there is that a ])ossession lo 
 ac(|uire a false credit M'ould nuike such a transaction void, (other- 
 wise not. 
 
 This doctrine was closel}' followed liy Ln-d ]\ransfii'M in 
 Woyslcjj V. Dcmaftof^ ('■), Avho tliere 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 tliat the want of Wantofpos- 
 possession alone is of itself a conclusive proof of fraud {d), that give evidence 
 is to say, where it is enough to shew that the transfer was not a °!j,g'^"j ||",yeg 
 real sale or gift at all, but a mere contrivance, whereby no pro- the unreality 
 
 ^ ' ' J i. of the transto 
 
 perty was intended to pass, but which should be brought forward 
 when convenient in order to protect the goods from the claims of 
 creditors. It was chietly on this ground that tlie sale in Tu:ynr\ 
 Case (r) was held void for there " the donor continued in pos- 
 session 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 absolute con- Old rale as to 
 
 . . , possession 
 
 veyance and the grantor remanied ni possession ni such a way as j;fte,- transfer 
 to be able to use the goods as his own, it was always void against Jf )[:f J^j"'^'^"''"^ 
 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 accordance with the terms 
 
 (h) Free. Cb. 285. Bowles, 1 Ves. at p. 3G0 ; and see Ej: 
 
 ((■) 1 Burr. 467. parte Games, 12 Cli. D. 322. 
 
 ((/) Stone V. Gruhham, 2 Buls. 22G. {(l) Bmlcnal v. Jioiston, Free. Ch. 287 j 
 
 (e) ;5 Rep. 80 b. Julirards v. Harhen, 2 T. E. 587 ; 
 
 (/) Fer SirW. Fortescue, in Tanlor Twi/ne's Case, 3 Fop. 80 b ; J'c'/et v. 
 
 V. Jones, 2 Atk. GOO ; and see Bijall v. Pcrchard, 1 Esp. 205.
 
 118 
 
 WANT OF POSSESSION 
 
 But where it 
 is attempted 
 to screen more 
 priiperty than 
 necessary, it is 
 quehtion for 
 jury. 
 
 But no pes- 
 htfssion IS not 
 alwa\s 
 fraudulent. 
 
 of the deed, was none the more valid, for it proved, or was taken to 
 pi-ove, the unrealiiy of the transfer, and that it was intended 
 to be really for the grantor's benefit at the expense of his 
 creditors (//). But the possession of an assignor is not fraudulent 
 when lie is tenant in common with the purchaser, because the 
 possession of one tenant in cunnnon is the possession of all (/). 
 
 "Want of absolute possession will make a bill of sale fraudulont 
 if the idterior object is to convey more property ihan would 
 satisfy the debt to secure which it was given, in order to screen 
 it from other creditors (/.•) ; but whether or not this was llie 
 c»bject is a question for a jury, especially where the value of the 
 proi)erty was a fluetuatinu, "ue. 
 
 In all casi's where there is a lease, bill of sale, or other assign- 
 ment, without any change of possession, tlic question is, whether 
 it was a bouii fide transaction or a trick and contrivance : and 
 the payment of the consideration money and other circumstances 
 must be free from doubt (/), for any circumstances of fraud 
 coupled vdih the transferor's remaining in possession will upset a 
 transaction (m). 
 
 It by no means follows, though, that because there is no 
 possession given therefore a transfer is fraudulent ; for those 
 cases where the judges have said that if possession was not given 
 it was fraudulent (n) nuisl lie taken with reference to the circum- 
 stances of each case. 
 
 Tlie question of possession is one of nnich importance, but 
 
 (/<) 'i'he idea that a secret benefit was 
 intended for the grantor in contradiction 
 of the apparent grant, is the leading prin- 
 ciple on wliich these conveyances are void. 
 The earlier statute, :j Hen. 7, c. 4, enacted 
 tliat " all deeds of gift of goods and chat- 
 tels made or to be made of trust tu the 
 use of that pemuH or jicrHoim tiiat made 
 the same deed of gift be void, and of none 
 effect; " and see the fifth badge of fraud 
 in Tir line's Cane, ?, Co. 81 a; and the 
 resolution (ibid.) that no gift shall b'! 
 considered bona fide which is accompanied 
 with any trust ; and so " the want of de- 
 livery is evidence only that the transfer 
 
 was colonrahle" : Martindale v. Booth, 
 ?, 15. & Ad. 498, 505 ; Liiulon v. tSharjJ, 
 (J Man. & G. 895, 898. 
 
 ((■) Ik Matthews, 1 Atk. 185. 
 
 (k) Benton v. TJiornhlll, 2 Mars. 427. 
 And it will be seen that this was also the 
 case in /ultranh v. Jfarbcn, 2 T. R. 587, 
 post, p. 119; BidiMj^ih v. GoohJ, 11 
 "\V. \\. 882. 
 
 (/) Jleed v. Blades, 5 Taunt. 212 ; E 
 ]iarte (lames, 12 Ch. D. ?>\A. 
 
 {in) (Irakuni v. Furher, 14 C. B. 410. 
 
 («j L'dwaids V. llarhtn, 2 T. R. 587 ; 
 IVordall v. iSinith, I Camp. 332 ; Mac- 
 dona v. Swlneij, 8 Ir. C L. U. 80.
 
 A BADGE OF FRAUD. 1 1 *J 
 
 that is with a view to ascertain the good or bad faith of the 
 transaction (o). 
 
 In Arnnddl v. PJiipp.^ (p) Li>rd Kldoii said that tlic mere jjord KMon : 
 circumstance of tlie possession of chattels, however familiar it gcs'sion on'ly 
 mi'dit l)e to say that it proves fraud, amounts to no more than ?''.'""• ''^'^'"l 
 
 o "^ i evidence ot 
 
 that it is privid facie evidence of property in the man possessing, fraud, and all 
 
 . 1 • 1 1 • tlie circuni- 
 
 until a title not fraudulent ]s shewn undi-r whicli that possession stances must 
 has followed ; tliat every case, from 7\r)/nes Ca^^c {(j) downwards, 
 supports that, and there was no occasion otherwise for the statute 
 of King James (/•). 
 
 There is no sufficient authority for saying that the want of 
 delivery of possession makes void a lull of sale of goods and 
 cliattels ; it is prima facie evidence of a fraudulent intention, and, 
 if it lie a badge of fraud only, in order to ascertain whether a 
 deed be fraudulent or not, all the circumstances must be taken 
 into consideration (.s). 
 
 Edwards v. Harhcn (t) is an early case on the sul)ject, the Edirards v. 
 facts of which sufficiently appear from the judgment. The 
 Court of King's Bench held the l)ill 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 sale of all f^^^^^^' ^''^ 
 the defendant's household furniture and stock-in-trade ; it was to 
 take effect immediately on the face of it ; but there was an agree- 
 ment 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 happened 
 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 not, came before the Court in 
 
 (o) Ahhoit,C.J.,m Latimer Y. Batsoi), originated the law with respect to pm- 
 
 4 B. & C. 052; and see Arundell v. perty remaining in the reputed ownership 
 I'ldppii, 10 Ves. 139 ; K'uhl v. Haw- or order and disposition of a bankrupt. 
 Vinson, 2 B. & P. 59 ; Hoffman v. rill, (.s) Per Pattcson, J., in Martindale v. 
 
 5 Esp. 22, 25 ; Eastwood v. Brotvn, Booth, 3 B. & Ad. 498, 507 ; post, pp. 150 
 Ky. & Mood. 312. et seq. 
 
 [l,) 10 Ves. 139, 145. (0 2 T. E. 587. 
 
 (7) 3 Rej). 80 b ; sec the remarks of {u) But the property in the goods, if at 
 
 Litthdale, J., in Jlartiudale v. Booth, all, passed by the mere execution of the 
 
 3 B. & Ad. 498, 505. deed : Burlbnj v. Patterson, 9 C. & P. 
 
 ()•) 21 Jac. 1, c. 19, ss. 10, 11, which 574.
 
 120 WANT UF POSSESSION 
 
 HeedvuiJun- the last term in the case of Bamford v. Baron, in which all the 
 less posst'ssion ; |„pg ^^. .j.y unanimously of opinion that unless possession 
 
 accompanies J^'^'o'^'^ "-^^ j c ^ ^ 
 
 and follows it. acdjinpiuiics and foUoifs 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 conveyance was not held to Ije fraudulent. There are 
 many cases on the subject, from which it appears that tlie 
 principle stated never admitted of any serious doubt. So lonjj 
 a"o as the case in Bulstrode (c) the Court held that an alisolute 
 conveyance or gift of a lease for years unattended with possession, 
 was fraudulent, but if the deed or conveyance be coiuUtionul, then 
 the vendor's continuing in possession does not avoid it, becau.se, 
 by the terms of the conveyance, the vendee is not to have the 
 possession till he has performed the condition (ic) ; and so with 
 bills of sale. Buller, J., then proceeded : " This has been argued 
 by the defendant's counsel as being a case in wdiicli the want of 
 possession is only evidence of fraud, and that it was not such a 
 circumstance j^cr se as makes the transaction fraudulent in point 
 Where there ^^ 1^^^' ' ^^^^^ ^^ ^^^^ point which we have considered, and we are 
 is nothing but ^^l of opinion that if there he nothinq hut the absolute convcmncc 
 
 absolute con- ^ ... „ 
 
 veyance with icithout the posucssiov , that, in i^oint of lav:, is fraudulent " (a;). 
 
 uut pofisestion 
 
 lent. In HfiscUnton v. Gill (//), decided, three years before Udirards 
 
 {C) >itone V. (Jruhliam, 2 Buls. 22(5. 
 
 (»c) ]]ut sec Buchial V. Jiolston, Vrec. Dallas (U.S.), 358, AVallace, C. C. 17« ; 
 
 f'li. 28.5, and Bifall v. Jiolle, 1 Atk. 165, FhettijAace v. ,Sa>/les, 4 :\Iason (U.S. 
 
 S. C. Jii/all V. Uoides, 1 Ves. 348, ante, Circ. ("t.), .'512, ;}21 ; Kennedy v. Jioss, 2 
 
 pp. lltj, 117. Const. (S.C.\ 125; and Clow v. Wood:^, 
 
 ('.#•) In America the Joctiine of J-^d- 5 Serg. & IJawle (Pennsylv.), 275. But 
 
 tcards \. Uarltii has been fully adopted in others a less strict rule — that -want 
 
 and even exceeded in some courts and of possession is only primil facie evidence 
 
 States; Oic Hamilton \. Itus8el,\ Cranch of fraud — has obtained. See Brouhx v. 
 
 (Sup. Ct. of U.S. Kep.), 309; Conard Poirers, 15 Mass. I!ep. 244; Bartktt 
 
 V. Atlantic Insurance Co., 1 Peters (Sup. v. Williams, 1 Pick. (Mass.), 288 ; Brif/ys 
 
 Ct. of U.S. Kep,), 38G, 449; Bissell v. v. Parhnan, 2 Metcalf (Mass.), 258; 
 
 lloiikiiix, 3 Cowen (Sup. Ct. of N.Y.), Carpenter \. tSnelliny, 1 Browne (Mass.), 
 
 Kjti, 1K9 n. ; United States v. Hooe, 3 452 ; Gates v. Monry, 15 Gray (Mass.), 
 
 ( 'ranch (Sup. Ct. of U.S.), 73 ; Meelcer 564 ; Uhner v. Hills, 8 Grcenl. (JIaine), 
 
 V. Wilson, 1 Gallison (U.S. Circ. Ct.), 326; Wanh v. Medley, 1 Dana (Ken- 
 
 419; irWolf\. Harris, A Mason (U.S. tucky), 269. But .sec LaiiyJdin v. Fer- 
 
 Circ. Ct.), 515,534; tititrteraut v. Bui- yunon, i'} Dana (Kky.), 117. See Kent, 
 
 lard, 9 .Johns (N.Y. Bep.), 337, where, 12th ed. 520: Bump. Fr. Conv. (Amer.), 
 
 too, the consideration was money paid at 2nd ed. 64, 74 et scq., 111-114. and ca.scs 
 
 tiic time ; 2 N.Y. ]{ev. Stats. 136, ss. there cited. 
 5, C, 7 ; United >itales v. ('ouyiiyhum, 4 (//i :j T. P. (>2U.
 
 A BADGE OF FRAL'D. 121 
 
 V. 11(1 rhcn (:), liy JUiller, J., it wus laid down ihaL " possession 
 uluiio is Dot (jvideiice of fraud, but tliat tlie transaction must lie 
 sliL'wn to 1)13 fraudulent from oilier circumstances." 
 
 It will be observed, however, that the words of Luller, .1., in 
 EdwanU v. Ilarheii (z), apply where there are no facts whatever in 
 the case beyond those of an absolute conveyance and a non-delivery 
 of possession. Sudi :i case is, from the nature of the transaction, 
 very exceptional. This case has given rise to much comment 
 in suljsecpient cases, and, although never actually overruled, the 
 principle laid down in it has since been modified consi<lerably. 
 There were in it, however, other circumstances of fraud — the 
 generality of the assignment and the fact that more pr(jpcrty was 
 assigned than necessary to cover the debt (ti). 
 
 In Martimlale v. Booth (b) the doctrine laid down by lUdler, J., 
 was repudiated by the whole Conrt, and continuance 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 
 I'arke, 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 EdicanU v. Harhcn (z) has not been generally 
 considered, in subsequent cases, to ha^'e that import. The want 
 of delivery is only evidence that the transfer was colourable." 
 
 In Lindon v. S]i(iri> (r) Tindal, C.J., said: "The modern 
 doctrine is that it must be left to the jury to say 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 Mucdoan v. Siriinij (d), 
 Lefroy, C.J., pointed out that the principle laid down in EdiccmU v. 
 Harhcn (z) liy the judges was only intended to apply to possession 
 under the particular circumstances of that case. 
 
 The more modern doctrine, then, appears to l)e that the mere Modem doc- 
 fact of the vendor's or donor's continuance in possession of *[^"j\f°erT' 
 2)ersoncd property after an absolute sale or gift affords oid\- a ^''^''^ft-r _ 
 
 ^ - nieielyapnmi 
 
 facie presunip- 
 (z) 2 T. i;. 587 ; ante, p. U'J. [b) ;J V>. & Ad. -idS. tion of fraud. 
 
 (a) Benton v. Thornhill, 2 Mans. -127, (r) M. & Gr. 898. 
 
 7 Taunt. 149. [d) 8 Ir. C. L. 73, 84, 8G.
 
 122 AVANT OF POSSESSION 
 
 7>n;«« facie presumption of fraud. It is such a presumption, 
 therefore, as may be explained away or rebutted; or, taken in 
 connection with all the circumstances of the case, it may amount 
 to a conclusive presumption of fraud. In short, the question of 
 fraud or no fravul depends upon all the special circumstances of 
 each particular case. 
 
 Distinction be- Althou«j;h in some of the very early cases no distinction has 
 ]^^5\"^"j-^'"'%een made between absolute and conditional transfers oi pergonal 
 tional trans- property but they have ])een treated as the same in principle (e), 
 still, this distinction was recognized in Echcards v. Harlcn (/), 
 where it was said by BuUer, J., with regard to deeds or bills of 
 sale whieli are to take -pluce at soivr fi/fure time, tliat "the posses- 
 sion continuing in the vendor till that future time, or till that con- 
 dition is performed, is consistent with the deed, and such posses- 
 sion comes within the rule as accompanying and follovAng the deed." 
 
 Possession This criterion, whether possession acconijianies and follows the 
 
 and'fcTwiD"^^ deed, is only one means of ascertaining whetlier it was a bona fide 
 the deed. j^^j^ 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 
 creditors {(j) ; 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 (li). 
 
 In Martindale v. Booth (i), "the consideration for the liill of 
 sale," said Lord Tenterden, C.J., " was not only an antecedent 
 debt, but a sum of money to be advanced by tlic plaintiffs to 
 enable I'riest to carry on his trade. The omission of the plaintiffs 
 to take possession of the goods was perfectly consistent with the 
 deed ; for it was stipulated that Priest should continue in posses- 
 sion until default made in payment of all or any of the instal- 
 ments The possession by Priest, therefore, being consistent 
 
 (c) Ant;, pp. 110, 117. ErcJdfih v. rarssfonl, 2 Mood. & Rob. 
 
 (/) 2 T. K. 587 ; see notes to Ttnjaes .O.'ifi, ;j4-_'. 
 Ca»e, 1 Sro. L. C. Kth ed. (/<) Armstronr/ v. Bahlocl-, (Jow, 33; 
 
 (//) liirheJi V. Ju(i),8, It ('. & P. C4n ; liecvex v. Capper, 5 Bing. N. C. 140 ; 
 Martindale v. Booth, 3 ii. & Ad. 50.0 ; Carr v. JJurdiss, 5 Tyrw. 309. 
 
 (/) 3 15. & Ad. 41(8.
 
 \ 
 
 A BADGE OF FRAUD. 123 
 
 with the (leeil, and it having heen given in consideration of money 
 advanced to enable Priest to carry on his trade, I cannot say 
 that it was ahsohitely void.'" 
 
 So in Alton v. Harrison (k) a hill 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 shoidd issue 
 against him, was held valid. Tlic ground of lliis decision was 
 that the proviso was consistent with ihe tunor 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 payment.- The source from which the mortgagee's 
 interest is to come is frequently the earnings of the mortgagor in 
 his business, which would 1)0 destroyed by an immediate change 
 of possession (/). Indeed, the general idea of a mortgage, even 
 where the mortgagor does not by means 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 : that AVherc 
 
 J. 1 1 continuance in 
 
 where, in strict pursuance of the terms or the agreement or aeecl, possession is 
 actual possession is not given, such want of possession is not per Jj'J {l"J'^£J'^°o 
 se even an evidence of fraud. SfrS'''" 
 
 In such a case the fraud against creditors must be looked for in 
 the nature of the arrangement itself, and not in the way in which 
 that arrangement is acted upon wdtli regard to possession being 
 taken (m). 
 
 In order to take advantage of this rule the suljsequent acts 
 must be consistent with the deed itself, and not with a parol 
 
 {k) L. E. 4 Ch. 622. TI'. «;•(■/• v. Joule, 3 C. B. (N.S.) 309; 
 
 (/) Steward v. Lomhe, 1 B. & B. 50(). JIascUnton v. Gill, 3 T. E. G20-1, per 
 
 (in) Beeves v. Capper, 5 Biug. N. C. Asliurst, 'J. ; Martindale v. Booth, 3 
 
 140 ; Wooderman v. Baldock, 8 Taunt. B. & Ad. 498 ; Alton v. Harrison, L. E. 
 
 670 ; C'arr v. Burdiss, 5 Tyrw. 309 ; 4 Ch. 622 ; Eastieood v. Brown, Ey. cS: 
 
 Beed v. Wilmot, 5 Moo. & P. 583; M. 312.
 
 124 WANT OF POSSESSION 
 
 agreement between ilie i)aities, for that is in the nature of a 
 
 seeret trust and is always viewed with the <,'reate.st suspicion (//). 
 
 ro>*cssion This beinjj; the reason of the rule it follows, of course, that 
 
 ?ccoXn"ce ' '" tlie mere fact of the possession, or the absence of it, when in 
 
 *!''' '''^ •j^'^*^' accordance with the deed, will m.t set up the deed if there are 
 
 will not of 
 
 itself make it other circumstauces from wliieh a frau<lulent intention may be 
 
 TaliJ. , , , 1 ■ , ,. 1 , 
 
 collected (u); nor, on the otlier hand, is the tad that no posses- 
 sion has been given conclusive proof of fraud, although incon- 
 sistent with the deed (/<). 
 
 So a conveyance (by a deljtor who remained in possession) 
 absolute in form, l)ut with a proviso that on payment on a future 
 day the conveyance shouhl be void and the property should revest 
 in the grantor, was held to stand on the same footing as if such 
 ]iroviso had not Ijeen in the deed. The deed was held fraudu- 
 lent because of other circumstances wliich afforded conclusive 
 evidence of fraud (7). So the mere fact that a conditional sale, 
 such as a mortgage, contained no proviso enabling the mortgagor 
 to retain possession, is not conclusive evidence of fraud (r). 
 
 In Cool- V. Waller (.s) a bill of sale l>y way of mortgage of 
 all the furniture and effects in an hotel was given by an hotel- 
 keeper to a creditor to secure certain 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 lie 
 pai<l to the debtor. 
 
 The assignor not being insolvent at the time, the bill of sale 
 was held valid against creditors, altliough the debtor remained 
 in ]>ossession. Lord Hatlierley (then Sir "\V. P. "Wood, A\C.) 
 said : " The bill of sale docs not contain the usual clause of 
 possession until default, Imt T think that cannot, in this Court, 
 be much relied on where it is a mortgage security " (/). 
 
 (n) See the fifth badge of fraud in (;>) Easta-ood v. Brown, Ky. & Mood. 
 
 Tiri/ne'H f'tme, .3 Co. 81 a: E(hrar<h v. .312; Jannan v. Woolloton,3 T. K. 620. 
 
 JIarbeii, 2 T. I!. .087 ; 3 lJ;ic. Abr. 7tli (7) Cr(niij>tlionic v. , 6 L. .L Cli. 
 
 cd. "«.'», 1>I. 2, tit. Fraud ((".): ante, 01. 
 
 p. 117 ; IC.1 pnrtr ChtipUn, 26 < "li. 1 ». ol'J. (/•) Steicavd v. Lomhe, 1 1!. & B. 506. 
 
 (o) nirhfx v. Eciinx, {) ('. & V. (/< 1 .-j W. R. ;}57. 
 
 r,4o-G42 ; Crcniij/lliornc v. , L. .1. ^ ^'<^f'' ^'- J''"'/«e'', •'» W. R. ."JoT. 
 
 Ch. 01.
 
 A BADGE OF FRAUD. 12o 
 
 Here it will lie Ri;eii tlio rcniaiiiiii^;' in jiDsscssimi \v;is not in- 
 consistent Nvilli the (Iced, wliidi was in the furni (if a mortgage, 
 but necessary for the purposes of the business, and the considera- 
 tion for it was partly an existing debt and partly the price of 
 furniture then sold. And in Weaver v. Juiilr. (//), where likewise 
 a bill of sale was given Ijy way of mortgage of chattels, and tlic 
 consideration for it was ]»artly an old debt, and ])artly a fresh 
 advance, it was held that the fact of the assignor retaining posses- 
 sion (there being no evidence of fraud) was immaterial. ]>ut in 
 that case there v'y/.s a clause for possession until d<'F;iult. 
 
 The same principles ap])ly to cases in which a debtor (/•) or 
 his representative (if) has given a preference to one creditor ; 
 for, notwithstanding what was said by Lord Kenyon in Holhlrd v. 
 Anderson (x), want of possession Ijeing given under an assign- 
 ment to defeat a ]iarticular execution or secpiestration (//) is not 
 always proof of fraud. It is a fact which requires explanation, 
 and from which, if not explained, a jury may be led to infer that 
 the instrument w^as not meant to operate {£). 
 
 Upon this prhiciple, that the possession is consistent with the 
 deed, or with the object of the parties to it, an assignment by 
 a man to trustees of the furniture in the house in which he and 
 his wife and family live, has been hehl not to be within 1 o Eliz. 
 c. 5, for they can only enjoy the furniture by its being in the 
 house in which they all live {a). 80, 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 {h). 
 
 If trustees for creditors are authorized by the trust dee(l to 
 permit the debtor to use any part of the trust property till the 
 
 (») 3 C. B. (N.S.) 309; and sec E.r. (a) ('iidof/au v. Kmnett, Cowp. 43-2 ; 
 
 parte (lames, 12 Ch. D. 314. ArundeU v. I'lupps, 10 Yes. 139 ; but see 
 
 (y) Ej- parte Games, 12 Cli. D. 314. Ashtoti v. /lUicl-sJia<r, L. E. 9 E(i. 
 
 (ic) Mkldhton v. PoUoch, 2 Gli. D. I(t4. .■)10 ; post, pp. 135 et scq. 
 
 {x) 5T. R. 235; ant(?, pp. 99 et Poq. [h) KUhl v. llaxdimon, 2 B. & B. 
 
 (//) Alton V. Jlarr!soii, L. R. 4 Cli. 59; Jieed v. Blades, 5 Taunt. 212; 
 
 Q22, rioldero v. London and Westminster 
 
 (z) Evelehjli v. Farssfard, 2 Md m1. & Discmiut (_'„..:, Ex. D. 47. 
 Rot).' 539.
 
 12G 
 
 WANT OF POSSESSION 
 
 debts are got in, or for any other purpose, sucli possession is not 
 fmuJiilent, because it is consistent ^vilh tlie deed (c). 
 
 The question of fraud or no fraud upon the rrround of the 
 want of possession is, then, in all these cases a question of fact 
 for a judge or jury ; and each particular case must be decided 
 upon its special circumstances (d). 
 
 Notoriety XotoHcty of change of ownership acts as a powerful antidote 
 
 leslenTtlo to evidence of fraud as inferred from possession not being given 
 
 presumption ^.^ ^j^g assignee. Change of actual possession is notice to the 
 of fraud. - o • i • i •. • 
 
 world that there has been a change of ownership, and it is 
 the same whether such notice is given in that way or by noto- 
 riety (c). In eitlier way the presumption of ownership is re- 
 butted. 
 
 In Armslroiuj v. Baldocl- (/) a debtor assigned to trustees for 
 the benefit of his creditors certain property and his implements 
 and stock-in-trade, but, consistently with the deed, remained in 
 possession. The question was, whether this assignment was good 
 affainst a subsequent execution. Dallas, CT., said that in all 
 such ca.ses as this notoriety of the change of posses.sion is the 
 question on which the validity or invalidity of 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 assignment. 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 wdiich operates as 
 notice to all the world, and a lawful consideration, the idea of 
 fraud is excluded. 
 
 Secrecj. As ])ublieity goes towards lessening tlie degree of fraud 
 
 inferred from want of possession, so secrecy in tlie transaction 
 
 (c) Wooderman v. Baldocl; 8 Taunt. (e) Latimer v. liaison, 4 B. & C. G52 ; 
 
 C76-, Goss V. Xeale, .0 Moo. 191; Kldd v. llairUnson, 2 li. SuF. CO; Hof- 
 
 Neate v. Latimer, 2 Y. & C. Ex. Ca. man v. Pitt, 5 Esp. 22 ; Heed v. Lladcs, 
 
 'ITii ; Burlltiff V. I'atersoti, 9 C. & P. 570 ; 5 Taunt. 212 ; Macdona v. Hwinerj, 8 Ir. 
 
 Fenn v. Billlcston, 7 Exch. 152 ; Boldero C. L. R. 73. 
 
 V. Ijondoti and Westminsttr Loan and (/) Gow, 33. 
 
 Dincount Co.,:) Ex. D. 47. (.'/) ^yood]u^m v. BahJocl:, Gow, 35, in 
 
 ((/) Martindalev. Booth, 3 15. & M. note to Armstrong ^. Baldock; but see 
 
 498; Biches v. Evam, 9 C. & P. G40; S. C. 3 J. B. Moo. 11. 
 and see pp. 121, 122.
 
 A BADGE OF FRAUD. 127 
 
 increases it. Lord Coke's advice in Tinjnc's Case (h), as to 
 <j;ifts ill satisfaction of a dclil made, liy one who is indi^htcd to 
 others also, is : " Lot it Ijc made in a ])uhlic manner, liefore the 
 neighbours, and not in private, for secrecy is a mark of fraud. 
 Let the goods and chattels be appraised liy good peojde to the 
 very value, and take a gift in ]);irliculcir in satisfaction of your 
 debt. Lamediately after the gift take possession of tliem ; for 
 continuance of the possession of the donor is a sign of trust " (/). 
 
 It has been shewn that in all cases turning on the want of Possession 
 
 . , . . , , I only valimblo 
 
 possession the material question is, whether the conveyance was ^s evidence of 
 intended to operate as a real transfer of the property, or ^v■llether [J^ [J^'^|J^j.';|^ 
 it was merely colourable, and meant as a cloak to defraud 
 creditors ; and that the 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 to pre- Naturoof 
 
 possession 
 
 vent any inference of fraud must be such as will shew the honesty must be such 
 uf the intention to part with the property, and to act up to the Jonesty^''' 
 terms of the agreement ; so that a mere formal delivery, unless ]Mere formal 
 the transmutation of possession is notorious (/.■), will Ije of no 5se'^^^^°" " 
 use whatever (/). 
 
 The delivery of possession and the giving up of ownership 
 must be such as to exclude the doctrine of reputed ownership (m) ; 
 
 it must be actual and complete. 
 
 In Wordall v. SihUIl (n) a publican made a l)ill 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 juibli- 
 
 (/t) :] Co. 81a; Lofft. 782-3; ?, Com. (A-) Carr v. Z?Mrr?m, 5 Tyrw. 309, 316 ; 
 
 Dig. 297 ; >Stone v. Gruhham, 2 Buls. and per Dallas, C.J., in Armstrong/ v. 
 
 225 ; Kidd v. ItuwUnson, 2 B. & P. 01 ; Baldoch, Gow, 34. 
 
 Xa^/mer V. J5a/.9c?i, 4 15. & C. 652. (^) Formal possession was given in 
 
 (;) /;i re /o/ir.son, 20 Ch.D. 389, S. C. Edirards y. Ilarhen, 2 T. R. 587, ante, 
 
 51L. J. (N.S.)Cli.503; ^jr;j«rfe Wilson, p. 119. See also 41 & 42 Vict. c. 31, 
 
 22 AV. 11. 241 Ex parte ChapUn, 2G Cli. and 45 & 46 Vict. c. 43, post, p. 151. 
 
 D. 319 ; .and see 41 & 42 Vict. c. 31, and (???) Carr v. Bitrdiss, 5 Tyrw. 309. 
 
 45 & 46 Vict. c. 43, post, pp. 150 et seq. (??) 1 Camp. 332.
 
 I'JS REPUTED OWXERSIIIP UNDER 
 
 can ami hi^ wife liad actoss. Lord Ellenliorougli said that in di-fi^'al 
 the executinii by a Itill of sale there must a]i]iear to liave IteGii a 
 lionJi fide substantial clianfje of possession. It is a mere mockery 
 to put in another person to take possession jointly with the former 
 owner of the .ijoods. A concurrent possession with the assignor 
 is colourable. Then' must be an exclusive possession under the 
 assiirnmeut, or it is fraudulent and void as against creditors. 
 Ix»rd Kenyon also took the same view in a very similar case (o). 
 
 Hj- parte In Ex parti' WU>i(jn {p) an unregistered bill <tf sale was given by 
 
 A. to B., kept secret, and not acted on. The goods were afterwards 
 sold to (A, and the proceeds of sale were paid tn \\. It was held 
 that although A. was insolvent at the time he gave the liill of 
 sale, and l)ankrupt shortly afterwards, the payment to !>. was valid. 
 In that case it was said by James, L.-T. : " I think the ])rinciple of 
 Tu-ync's Case as to non-delivery of ])ossession is to be applied in 
 much the same way as the rule in Imiikruptcy with respect to 
 order and disposition ; which is, that the goods must remain in the 
 order and disposition of the bankrupt up to the time of the 
 bankruptcy, and when possession is given before the Ijankruptcy 
 there is no ground for saying it is fraudulent." That doctrine 
 merely ap])lies the common principle that people must make good 
 their rejaesentations ; they must make good that which they hold 
 out to the world as being the fact (q). 
 
 Reputed V>\ the Bankiujitcy Act, 1883 (/■), the same ]»nnci})le is in the 
 
 nndeHJanl;- f"ll"wing temis re-euactcd : — The property of the bankru])! shall 
 rnptcy Act, comjjrise " all goods being at the commencement of the bankruptcy 
 in the possession, order, or disposition of the bankrupt, in his 
 trade or business, 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 pro- 
 vided that nothing in the Act shall give validity as against 
 creditors of the liu.sband to any gift by him to his wife of any 
 
 (o) Paget v. Po-chanl, 1 Ksp. '20.'). (;•) Section 44 (3) ; see Robson, Bkcj. 
 
 (;j) 22 W. R. 241. .Oth ed. 533-5G2 ; po.st, p. 135. 
 
 (7) Ex parte J layman, 8 Cli. D., per («) Section 10. 
 
 .Tnmcp, I. ..J., at p. 23 ; h'.r parte Wintf- 
 JieUl, 10 Ch. D, 591.
 
 BANKRUPTCY ACT. 129 
 
 property whicli after .such cjift sliall continue Id lie in his order 
 and (hs])Osition or in his reputed ownershiji. 
 
 TIic doctrine of reputed ownersliip does not apply in cases 
 where the possession is quite consistent witli (lie real tith^ [f). 
 Where a liusband and wife remain in joint ])osscssion of fur- 
 niture settled hy tlie luisl)and l)y a post-nuptial deed n])on trust 
 for his wife as her separate property and registered as a hill 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 (//). 
 
 It has l)een held under tlic reputed ownerslii]) clause of thel^eputcd 
 Bankruptcy Act, 18G9 (/•), that goods were only in the possession, pneRo^,]'y''\vl?.Mi 
 order, or disposition of a Itankrupt in cases where the l)ankrur)t H"^''"''^ '^'" 
 
 ' ■•- ^ I- .sole possession 
 
 was in the sole possession of the goods and as the sole reputed ^^'^ »s ^ole re- 
 puted owner, 
 owner (7") ; and that tlie Act did not extend to cases in whicli 
 
 the bankru])t and others were jointly in jiossession and were jointly 
 
 reputed owners. 
 
 In Ux parte Watkins (.>:) it was said by Lord Selborne, L.C., 
 that to bring a case within the clause two things were necessary. 
 " Mrst, 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 consideration of all the 
 facts which any .one who took pains to inform himself on the 
 subject would know. 
 
 But, on the other hand, where the purport of the deed is not of Possession 
 
 o • ■ ^ • i. ne 1. given need 
 
 itself fraudulent, and the objects of it can be carried into etlect only be tlwt 
 without a thorough change of possession, the possession need only "bjectToi'dted. 
 be such as is sufficient for effecting these objects (y). The posses- 
 sion 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 possession taken was sufficient. 
 
 (0 Asldon V. mci'Mair, L. E. 9 Eq. («•) Ex luirte I)orman,L. Yl. 8 CIi. '>!. 
 
 515_16. (.»•) L. K. 8 Cb. at p. 528. 
 
 (m) Ex2Ktrte Cox, 1 Cb. D. 302. (.y) Jezeiih v. Ingram, 8 Taunt. 838. 
 
 ((■) Section 15 (5) ; re-enacted by tbc See, also, ante, p. 115, cases in note (0- 
 Act of 1883 ; supra, 
 
 E
 
 130 
 
 WHAT KIXD OF POSSESSION 
 
 Benton v. 
 ThornhiU. 
 
 In Bniton v. TJiornhill (z) a creditor sent his sou B. to liis 
 debtor, and by liis means obtained a bill of sale of all the debtor's 
 eflects, expressed to be iu consideration of £G00 (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 
 supplied the articles requisite for the maintenance of the family. 
 On the other hand, the debtor himself paid and ajipealed 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 liis orders from 
 tlie 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 tliat depended 
 on what was the object of it, and whether a bona fide possession 
 had been given under it ; that there was an uncontrovcrted 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 valid within the doctrine of Twync's Case {a) and Edwards 
 V. Ilarlcn (h). 
 
 Caiie8,how 
 reconciled. 
 
 In order to reconcile this decision with the cases of Par/d v. 
 Pcrchard (c) and Wordall v. Smith (d), previously mentioned (c), it 
 may be 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 tliat 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 
 
 (z) 2 Mars. 427, R. C. 7 Taunt. 149. 
 («) .3 Ucp. 80 b. 
 
 {b) 2 T. 1{. 587, and ante, p. 119 ; and 
 see Ileed v. iSlades, 5 Taunt. 212. 
 
 (c) 1 Esp. 205. 
 
 (d) 1 Camp. 332. 
 
 (r) Ante, pp. 128, 129.
 
 IS NECESSARY. 131 
 
 tlie creditor (/), But in Wordall v. Smith ([/), wliicli was cited in 
 Benton v. ThornJtill (h), the money received after the alleged 
 possession taken was put into the till, and the dehtor had access 
 to it ; and in Fagd 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 (/.•) a general principle applicable to all this class of 
 cases, but that lie must l)e taken to have spoken with regard to the 
 particular circumstances of the case he had before him. This Joint posses- 
 appears from the case of Lcdimcr v. Batmi (/), which, however, for jul'^**'''"" 
 was on a somewhat different question. There the goods had lieen 
 actually sold by the sheriff under a fi. fa., and the purchaser, 
 though he put a servant in possession, allowed the debtor to 
 remain in possession also, and to use tlie goods as if there had 
 been no execution. Lord Tenterden (then Sir Charles Abbott, 
 C.J.) said that the facts were very different from those in Wordall 
 v. Smith (m), where Lord Ellenborough's observations, if construed 
 with reference to that case, did not warrant the assertion that any 
 distinct question should have been left to the jury as to the posses- 
 sion of the goods. In that case an assignment was made to a 
 creditor without any execution, 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 business 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 pur- 
 chaser from the assignee had suffered the debtor to continue to use 
 them (??). 
 
 In Lcdimcr v. BcUson the consideration was money paid at the Money pmM a 
 time — less open to suspicion than that of an antecedent debt {o) : sideration timn 
 indeed, it is hard to see how such a conveyance could be presumed ^ '^'^^^ ^'■"''" 
 
 (/) See Carr v. BimJlss, 5 Tyrw. 309, (o) Kidcl v. BawUnson, 2 B. & P. 59 ; 
 
 314. Jezepliv. Ingram, 8 Taunt. 838 ; Martin- 
 
 (rj) 1 Camp. 332. dale v. Booth, 3 B. & Ad. 498 ; 31efjtjot v. 
 
 (h) 2 Mars. 427. Mllh, 1 Eaym. 28G ; Eastwood v. Broim, 
 
 (/) 1 Esp. 205. Ry. & Mood. 312. See also B. N. V. 258 ; 
 
 (/.) 1 Carap. 332. Mercer v. Peterson, L. E. 2 Ex. 304, 
 
 (/) 4 B. & C. G52. S. C. L. R. 3 Ex. 104 ; Flumh v. Fllntt, 
 
 (m) 1 Camp. 332. 2 Anstr. 439, 440 ; and Agra Bank v. 
 
 («) See next page. Barrj/, L. Iv. 7 II. L. 135. 
 
 K 2
 
 132 
 
 CONTIXUAXCE IN POSSESSION 
 
 bnj goods. 
 
 fraudulent against creditors from want of possession unless there 
 was actual fraud (p). " If," said Lord Eldon, in Kidd v. Rawliiison, 
 Money lent to " Kidd liad lent money to Aburu to buy these goods, and had then 
 taken a conveyance of them, or a security for his debt thus arising 
 out of the mere act of lending the money ; leaving Aburn in 
 possession of the goods would not have been a fraudulent act " {q). 
 In such a case the other creditors are in no way injured by the 
 transaction : if the money had not been lent, the goods could not 
 have been purchased. 
 
 Goods sold by 
 sheriflfaud 
 afterwards in 
 debtor's pos- 
 session. 
 
 "When goods belonging to a debtor have once been sold under an 
 execution or other process, their having got back into or being left 
 in the possession of the debtor will be less liable to the imputation 
 of fraud than where the sale is by the debtor himself (r) ; but 
 even in such a case it is a question for a jury whether the transac- 
 tion was fair or fraudulent, whether it was a bona fide sale, and 
 the money really paid by the purchaser, or whether it was in fact 
 paid by the debtor, and a colourable transaction (s). 
 
 Kidd V. 
 
 liaiclinson. 
 
 Thus in Kidd v. Piau'linson (f), an execution having issued 
 against the goods of one Aburn, his furniture was taken and put 
 up for sale by the sheriff. The plaintiff, Aburn's brother-in-law, 
 but not a creditor, became the purchaser, and a bill of sale was 
 made out to him. Tlie plaintiff allowed Aburn to keep possession, 
 so as to be able to carry on his business ; but he afterwards, being 
 arrested for debt, made a bill of sale to the defendant, who took 
 possession, and sold, after having received a notice from the plain- 
 tiff of his prior title. On an action by the plaintiff for money had 
 and received by the defendant, the jury found that there was no 
 fraud, but that it was intended that the bill of sale should be a 
 security for the money advanced to the sheriff; and the plaintiff 
 got a verdict. Lord Eldon pointed out the difference between 
 this case and that of a sale by the debtor himself in satisfaction 
 of the debt of one creditor, and said that this case did not fall 
 within the principle of Tinjncs Case (u) ; the goods were pur- 
 
 (p) Macdona v, Swiney, 8 Ir. C. L. 88. 
 (7) B. N. P. 258. 
 
 (r) See Cole v. Daries, 1 Ld. Raym. 
 724 ; Lat'imer v. Bataon, 4 B. & C. C52. 
 
 («) Latimer v. Batson, 4 B. & C. 
 C52-3. 
 
 (0 2 B. & P. 59. 
 
 ()() 3 Co. 80 b ; ct ante, p. 8C.
 
 AFTER A SALE. 133 
 
 chased at a public sale by u person who had never acquired the 
 character of a creditor, and were tlien lent to tlie original owner 
 for a temporary and honest purpose. 
 
 Ji'zcph V. Ingram (c) was neither a mere sale by the debtor Another 
 
 ii«-i • • n 1 7 -FT 1 / \ creditor satis- 
 
 hnnself without possession, as m Edwards v. Ilaroen (iv), nor an fyinj; pxccu- 
 absolute public sale by the sheriff, as in Kidd y. Bavdinson {x).f^^^^,^'^^^J ^^^^ 
 The slieriff beiuL!' in possession of tlic property in dispute, Dunk, (debtor m 
 
 _ _ i. J. ./ i posscstion. 
 
 another creditor, in order to liberate the goods, advanced money 
 for that purpose, and took an assignment of the farm, stock, goods? 
 Sec, from the debtor as security, after which (in accordance with 
 the terms of the assignment) Dunk entered and managed the 
 farm, but the debtor continued in possession. The jury found 
 that there was a want of sufficient notoriety of transfer, and gave 
 their verdict for the plaintiff, a creditor who had subsequently 
 obtained a judgment. Gibbs, C.J., granted a new trial. He 
 said ()j) : " This is not the case of a dry sale and leaving the party 
 in possession ; on the other hand, it is not an absolute public 
 sale by the sheriff, but money is paid him to redeem the goods, 
 and then there is a conveyance from the debtor to the person 
 who advances the money." The jury on the new trial found in 
 favour of the validity of the assignment. 
 
 It is a much stronger case where the purchaser from the sheriff' ^ale by sherifl 
 
 ^ ^ , and debtor 
 
 has left the original owner in possession or at an actual rent, and remaining in 
 it seems that such a possession is not of itself even evidence of ^^^^^^ of the 
 fraud, and in the absence of proof of actual fraud will be upheld purchaser, 
 without a jury (z) ; and the circumstance of tiie purchaser being 
 a creditor makes no difference if the creditor takes 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 execu- 
 tion under which he bought was sued out, although he got that 
 execution by means of a judgment confessed (z). 
 
 The same principle applies to any case in which the sale is Other saleg 
 
 i^ i- ^ ^ -^ .the same, if 
 
 notorious (a). In Leonard v. BaJcer {h) a man made an as.sigu- notorious. 
 
 ment of his effects to trustees for his creditors and absconded, the 
 
 (r) 8 Taunt. 838. {^) Wathins v. Birch, 4 Taunt. 823. 
 
 {w) 2 T. E. 587. (rt) Latimer v. Batson, 4 B. & C. 652. 
 
 (./■) 2 B. & P. 59. (b) 1 Man. & S. 251. 
 lu) 8 Taunt. 843.
 
 134 coNnxuAxcz rs' possession atter a sale. 
 
 Bj lactioQ. assignment was advertised in the public papers, and then the goods 
 sold bv public auction to the plaintiff, who remoTed 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 execution, the jury finding that 
 the sale w^s notorious, and not made with an intent to defeat 
 
 - - • -: :r:.:::.:rs. And so also where the sale is bv the debtors landlord 
 u^ .---r a disness for renr, which, if bona fide, is vahd arainst 
 creditors, and, unless collusion is alleged, without any question for 
 a jury (c). 
 
 (c) Gmtirie t. Wcad, 1 StaA. 367. 
 
 i
 
 niAi'Ti:!; \ ii. 
 
 lill.IS OV SAl.K ACTr^. 1S7S AND 882. 
 
 Tiikkt; \ViMo ui:iiiy cusos of aeoret trunslovs of peraonal |iim|>ciI y Sm^nt trmin 
 wlurh ruuM iiol lu> im]H-arlu>a h\ n-cA\\ov:'., c\[\wv as t"nuiaiil.Mi( Jl'^^i;,^^^^^^^^^ 
 iif as iiiaiK- willhuit iMUMili'iat iiMi, ,iiul iii wlurli, iii'\ crt lu'lcss, 
 crnliloi's iiii;'li(, iiuair loss li_\ phii-m;; ii'li.mri' iipmi I he I'.ul ol" 
 the ilrl»Uii'',s aitprariajJi; to ciMilmiir m pusaossioii el the lu'iM'iial 
 lu'ii|H'ily al'lrr it- hail lu'i'U sri'irtU I iau:.l'i'lM'(Hl. 
 
 I'lii:; ili'I'ccl. Ill till' law lias licrii iciiu'ilu'il. il' llu' ilt'lilur Im'imhh' ll.>w lav pro- 
 iiisohiMil or I'aiiki upl , l>y ci'ilaiii |mh\ laoii', ,'\' sih.i", m\ c I 'aiilv iSmiLnipU'y 
 riiplcy Afts wlih'li air known as tho oiiha' aiul (li,-|iosilion '"' 
 rliuisrs, or as llio ilorlriiu' of I'l'iailcil ow iitT'liip i^d'), iiiuliM' w liirli 
 all " ".'ooils anil cliadcls," nmlor llio I'.aiik i ii|ili\ Aol of I :'.(i',i (,■), 
 or all "<;ooils," iiiiiloi- llio Aol oi IS.'-v'l (/'), pils;; lo llio iloMof'M 
 liiislcc ill liaiik iiiptcy. r.iif (lie iloclrino of iv|iiilnl ow iici '.liiii 
 a|>|ilii'.". only iiiiilrr (he I'.ank ni|i|(\ Acl. iSd','. if Ilio li:iiik iii|it ho 
 a Ifiulti- widiin (ho iiioaiuii;; of lliak Art (./), aial iiiidia- llio I'.aiik- 
 iii|i|cy Aol. I ;-;S'>, only if 1 ho ""oods" arc in llio |io;,:,(':,;aoii, oi iloi , 
 or i|is|iosi(.ioii of Iho li:iiiki ii|i| ;;/ /lis tl'tlde 0)' hltsiuens {/i) \ HO thai. 
 II lai'M' nnnihor (*{ riiai's arc slill oiilsiilo iho scopo of t lio:,o srol ions. 
 
 In all Iho cashes in wlilrli Iho dohloidul not bt'oonio iir.ohiail 
 or hankinpl, and whoro Ins (sml iniianoo in iiosMcssion aflor un 
 assi'Minionl. /or vttln,\ hocaiiso ron-aslonl willi Iho Naiiis cif [\n\ 
 doi'd, w as II ol o\ idoiii'o of Mil ml on I loll lo dof la I id oli'diloi:i w il hiii I ho, 
 iniMiiin;; of I'i V.\\:.. c. ,'i, Iho inoic faol thai Iho liiinsfor was ahso 
 liiloly :uiT,l did iiol, III poinaal of il;iolf iii\alidalo llio ^rvA (/). 
 
 (./) Idifil, iiilrnilihn,l ill -.'I Jill'. I, 11, ID, (/,) l„ ,;■ IWillis, II (.1 I! I>. HfiO 
 
 M, I I ; linloi.-llin A, I of isr.l, lliiM .kirliiii.i /,',.//,i V. Mill,i\ :',' Clo K.I, la m 
 
 ll|i|ilin.l |c, ,(// IfiliLllipl-, , HIhI rin- Ih.lrri 1(1 ./,■ II L i llaiHI , IJ Q. II. I'. Ill, linliHOll, 
 
 II, nil V /;.,/„(•, ,Slii. I.. ('. Hill ..I. VHJ. •', IlLry. ;,||i ,,1, .Ml -f.Hil. 
 
 I>{> '.'1:1 i( (1(11 1, ; JiiiliMtm, Hkuj. Mli i il. (() iSon /'.'i' jiin'tf S'liiirrnii', - I •" (i. 
 
 .'r.",l Ul. Hlll|, M. y^ {\. '.Ill/; |iri' Lnld MillllKI'Iry, lllt'll 
 
 ((^ !I-J & Il.'l Vii-t. ti, 71, H. I.'. (fO. Sir W. r. W.mmI, \.('., m Math.ry. 
 
 (,/') -KJ ."t -i? Viol,. 0. W, M. -Il (V) (;0, rnmr, '.' K. i"t .1. t,M-\) , mil.'. \>\<. IM - 
 
 (,/) :i'.l .S, !i;i Vlut, 0. 71, H. 1ft (n), uiul -J 17. 
 rnl..>luk' I,
 
 136 BILLS OF SALE ACTS, 
 
 Act 1854. The Bills of Sale liegistration Act, 185 1 (k), Nvas 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 uf ijcrsonal 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 creditors (/). 
 
 Under it bills of sale of personal chattels must have been 
 registered within twenty-one days after their execution, in 
 order to make them valid as against assignees in bankruptcy 
 and execution creditors {m), if the personal chattels comprised 
 in them were left in the api^arent possession of the assignor {n). 
 By the Bills uf Sale x\.ct, 18GG {a), provision was made for the 
 re-registration of bills of sale every five years. 
 Act 1878. By the Bills of Sale Act, 1878 {f), both these last Acts were 
 
 repealed {q), except as regarded bills of sale executed before the 
 commencement of the Act on January 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 fix- 
 tures and growing crops if assigned apart from the laud, and as 
 to the re-registration of such bills of sale (.s). 
 
 It is })rovi(led by the Bills of Sale Act, 1878 {t), that every bill 
 of sale under it shall be duly attested, and 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 (w), 
 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 ; Ijut in 
 
 (k) 17 i 18 Vict, c 3*3, which came into (ji) See Appendix No. IIL Tlic corrc- 
 
 operation on July 10, 1854. sponding Act for Irehmd ia 42 & 43 Yict. 
 
 (I) lie Daniel, Ex j'crte Aghhy, 25 c. 50, and is almost identical. 
 L. T. 188. [q) 41 & 42 Vict. c. 31, s. 23. 
 
 (m) 17 & 18 Vict. c. 3G. The corre- (/•) 41 & 42 Vict. c. 31, s. 2. 
 
 spending Irish Act was 17 & 18 Vict. c. 55. (s) 41 & 42 Vict. c. 31, sb. 7, 23. 
 
 («) Minister v. Price, 1 Y. & F. G«G. (0 41 & 42 Vict. c. 31, s. 8. 
 
 {o) 29 it 30 Vict. c. 90. (w) Murines y. Hartley, 1 Y>. & S. 1.
 
 1878 AND 1882. 137 
 
 respect only of all cliatlels in his possession, or apparent posses- 
 sion, at or after the times therein specified. 
 
 The Dills of Sale Act, 1878, Amendment Act, 1882 (r), which Act 1882 
 came into operation on November 1, 1882, and which, so far as is bluH'of s'l'li'by 
 consistent with the tenor thereof, is to be construed as one with ^y^y "'"s'^cu- 
 
 ' rity lor p.ay- 
 
 the Act of 1878 (?'■), and in which the expression "hi/l q/" 6Y(/'J " "icnt of money, 
 and other expressions in it have the same meaning as in the Act 
 of 1878, applies onli/ to bills of sale given by way of security for 
 the payment of money (,'). 
 
 This Act, unless the context otherwise re(|uires it, does not 
 apply to any bill of sale duly registered before Novendjer 1, 1882, 
 so long as the registration thereof is not avoided l)y non-renewal 
 or otherwise (y) ; nor does it apply to bills of sale executed, but 
 not registered, before that date (z) ; nor to bills of sale duly regis- 
 tered under the Act of 185 1, but not re-registered {'(). 
 
 The object of the Bills of Sale Act, 1882, said Brett, M.R., is Object of Act 
 twofold : first, that the borrower should understand the nature of ^,^1^ bon-ower 
 the security which he was about to give for the debt due from ^^'^ lender, 
 him ; and, secondly, that a 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 (h). 
 
 If a bill of sale be really voluntary, although it may have com- How a bill of 
 plied with the technical requirements of the Bills of Sale Acts (c), aYoiS 
 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 requirements of the Bills of Sale 
 Acts. The mere fact of due registration under the Bills of Sale 
 Acts does not necessarily make it good against creditors (c). 
 
 (0) 45 & 46 Vict. c. 43. See Ap- (h) natn-s v. Burton, 11 Q.B. Ih 53d ; 
 pendix No. IV. JlelviUe v. ^'^'tritu/ci; 13 Q. B. D. 397 ; and 
 
 (w) Section 2. see In re Williams, 25 Ch. D. GG3. 604. 
 
 (,,;) Section 3. («) «ee Jfercer v. Peterson, L. K. 
 
 Qj) Section 3. 2 Ex. 304, S. C. L. R. 3 Ex. ; Oriental 
 
 (1) Section 3; Illdson v. Darloiv, Banllnrj Co. v. Coleman, 3 (iiff. 11; 
 23 Ch. I). 690. and see Durrill v. Ternj, G II. & N., 
 
 («) /Swire \. Coohson',d App. Cas. 6."j3. per Martin, B., 812; post, p. 141.
 
 138 BILLS OF SALE ACTS, 
 
 A bill of sale may also be deemed fraudulent, hy virtue of the 
 Bills of Sale Acts, because it fails to comply with them ; altliough 
 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 to be to 
 
 of bills of sale. ,..,,.,, ^. 
 
 divide bills of sale into the tollowing three classes : — 
 
 1 . Bills of sale executed on or after Xovember 1 , 1 882, to secure 
 the payment of money ; which are subject to the provisions of 
 the two Acts of 1878 and 1882 ((7). 
 
 2. Bills of sale, executed before Xovember 1, 1882, whether 
 absolute or to secure the payment of money. 
 
 3. Absolute bills of sale executed on or after Xovember 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 speci- 
 fically enacted (/). 
 
 Rerinirements Everv bill of salc under the Act of 1882 is void unless made 
 Ac/, 1S78, ill accordance with the form in the schedule annexed to the 
 
 Act, 1882. ^^^ W- 
 
 Such bill of sale must be made or given in consideration of 
 a sum not under £30 (h). 
 
 It must also be duly attested and registered under the Act 
 of 1878 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 eoiillicting 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. 
 ]■:.!■ ],(tric In the recent case of Ex ixirte Stanford {h), decided by the full 
 
 tStaiifunl. 
 
 Court of Appeal, a bill of sale whereby the grantor, as security 
 
 [il) Sinfl\. I'anndl, 21Cii. D. 210; ('as- (/) 4.5 & 4G Vict. c. 43, s. 13. 
 
 son V. Churchlcy, 53 L. .1. (N..S.)Q. B. 33.5- {ij) 45 & 46 Vict. c. 43, s. 9. 
 
 (c) Uohinson v. Tvchcr, 1 C. & E. (A) 45 & 4(3 Vict. c. 43, s. 12 ; sec 
 
 173; ,Su:ift v. Paniicll, 24 Cli. D. 210; Dads v. Usher, 12 Q. B. D. 400. 
 
 Casson v. Churchley, 53 L. J. (N.S.) (/) 45 & 4(; Vict. c. 43, a. 8. 
 
 Q. 15. 335. {/.) 17 Q. 13. D. 250, at pp. 270, 271.
 
 1878 AND 1882. 139 
 
 for money, " rts hcncficial owner" assigned chattels to the grantee 
 was held void because, l)y virtue of section 7 of tlie Conveyancing 
 Act, 1881, a covenant thereby introduced altered the legal rights 
 of the parties from those given by section lo of the Ijills of JSale 
 Act of 1882. 
 
 The true principle was there laid down to be this: a bill of Test wlictlicr 
 sale is in accordance with the prescriljcd form if it is substantially ;„ accordanco 
 in accordance with it, if it does not depart from the prescribed ^'k' j*^".™ ^^ 
 form in any material respect. 
 
 The bill of sale may diverge substantially from that form in 
 cither of the two following ways ; and in such case is void. 
 
 It may thereljy 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 depart 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 effect, which it would produce 
 if cast in the exact mould of the schedule. 
 
 In the cases cited below (/) one or more of the variations 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 
 effect that it has been upheld. 
 
 {!) Ex parte Pearce, 25 Ch. D. GoG ; Commercial Co. v. Bichardson, 55 L. J. 
 
 Davis V. Burton, 10 Q. B. D. 414, (N.S.) Q. B. at p. 455. 
 
 S. C. 11 Q. B. D. 537; Melville v. (m) Wilson \. Kirhcood, 48 L.T. (N.f^.) 
 
 Stringer, 13 Q. B. D. 392 ; Iletherington 821 ; In re CunninrjJtam, 28 Ch. D. (■)82 ; 
 
 V. Groome, 13 Q. B. D. 789 ; Levy v. Hammond v. HocJang, 12 Q. B. D. 291 ; 
 
 Folack, 52 L. T. (N.S.) 532; Crosserv. Boherts v, Boherts, 13 Q. B. D. 794; 
 
 Long, W. N. (1885) 95; Sibley v. IBggs, Furher v. Ahreg, 1 C. & E. 186 ; Thorp 
 
 15 Q. B. D. G19; Myers v. Elliott, 16 v. Creegen, 55 L. J. (N.S.) Q. B. 80; 
 
 Q. B. D. 526; Ex parte Parsons, 16 Ex parte Allam, 14 Q. B. D. 43; In re 
 
 Q. B.D. 532; C7emso?iv. ro«(;n.se»u/,lC.& Hall, 14 Q. B. D. 38G ; The Consoli- 
 
 E. 418 ; Lee v. Barnes, 17 Q. B. D. 77; dated Credit and Mortgage Corporation, 
 
 Goldstrom v. Tallerman, 17 Q. B. J). Limited, v. Cosneij, IG Q. B. D. 24; 
 
 80; Blaibcrg v. Parsons, 17 Q. B. D. Little \. Hughes, n Q. B. D. 204; Ex - 
 
 337; Daviesv. Bees, 17 Q. B. D. 408 ; parte Bentley, 34 W. R. 579; In re 
 
 Furherv.Cohh,nQ.li.'D.4o<); Bianchi Cleaver, 55 L. J. (N.S.) Q. B. 455; 
 
 V. Offord, 17 Q. B. I). 484; Maclcay v. Lumlcy v. Simmons, 55 L. J. (N.S.) 
 
 Meredith, 34 W. R. 433 ; The Liverpool Q. B. 579.
 
 140 BILLS OF SALE ACTS, 
 
 liiii of sale Every bill of sale by way of security for the payment of money is, 
 
 18S-' if void 18 if made after Xovember 1, 1882 (n), absolutely void against the 
 60 against u ^yholo wofM, oveu as af^aiust the "rantor, if it is not in accordance 
 
 persons. ' '^ o > 
 
 with the provisions of the Act of 1882 (o). 
 
 And every If a bill of Sale is rendered void because not made in accordance 
 
 provrslon ink ^^'i^^^ ^^^^ ^^^"^ ^^ ^^^^ Schedule to the Act of 1882 (p), then every 
 IS void if not provision and covenant contained therein is also rendered void. 
 
 in accordance ^ 
 
 with fi.nn in The document cannot be bad as a bill of sale and yet be valid 
 
 schedule. „..,,. 
 
 as a covenant to secure the payment of prmcipal and interest 
 by the grantor. The whole document is, in fact, absolutely nuga- 
 tory (q). 
 
 Is a deed with It is conccivcd that a mortgage may now, by reason merely 
 chnisel^arelii ^^ containing an attornment clause or a power of distress, 
 avoided in ^ bccome totallv void under the Bills of Sale Act, 1882 (r), if, by 
 
 toto under Act - > \ /> > j 
 
 1882? reason only of containing such clause or power, it requires 
 
 registration under that Act as a bill of sale within the meaning 
 of the Act of 1878 (s). The mortgage cannot be made in the 
 form prescribed in the schedule to the Act of 1882, and there- 
 fore it would appear to be absolutely void (i). 
 
 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 (^i). 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, qj'.d 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 
 
 {ii) Ante, p. 138. {)■) 45 & 46 Vict. c. 43, s. 9. 
 
 (o) 45 & 4(3 Vict. c. 43, ss. 7, 8, 9, 12 ; (.«) 45 & 46 Vict. c. 43, s. 3 ; 41 & 42 
 
 sec iJavis v. Burton, 11 Q. B. D., per Vict. c. 31, ss. 4, 6. 
 
 Brett, L.J.,539, 540; Ex parte Parmm, (t) Ex parte Parsons, 16 Q. B. D. 
 
 16 Q. B. 1)., per Lindley, L.J., 546; Ex 532; Daiie« v. Ikes, 17 Q. B. D. 408; 
 
 parte Stafford, 17 Q. B. I)., per Fry, Bluiherg v. Parsom, 17, Q. B, D. 337. 
 
 L.J., 274; Davieis \. Jleen, 17 Q. B. 1). (//) See Ex j^irte Williains, 7 Ch. D. 
 
 4U8 ; liluiherfj v. Parsom, 17 Q. B. D. 138; Ex parte Jachsou, 14 Ch. D. 725 ; 
 
 337. Ex parte Vulsei/, 21 Ch. D. 442 ; Dav. 
 
 (p) Section 9. I'rec. Conv. 4th cd. vol. 2, pt. 2, 98, 
 
 (</) Dalies v. Pecs; 17 Q. J!, l". Jii8. 99.
 
 1878 AND 1882. 141 
 
 created as subsidiary to the mortgage, and is to operate as an 
 additional and better security to tlie mortgagee (c). ( )n tliis ground, 
 such a deed may possibly be distinguished 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 ]878 it was not necessary to state the con- Consideration 
 sideration in a bill of sale. "■'^'-''' ^''"« ^^ 
 
 Sale Acts. 
 But under the Act of 1878 a bill of sale is deemed "fraudulent 
 and void" (?/') and under that of 1882 " void" (.r) if it does not 
 set forth the consideration for which it was given. 
 
 Inasnmch as under the Act of 1878 the consideration 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 statement 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 Must it le 
 required that the consideration to be stated should be a valuable ^'^^"'^^''^ '^ 
 one. There appears to be no decision upon the point whether, 
 under either Act, the statement of a good or merely a meritorious 
 consideration 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 con- 
 sideration has been set out. The nature of the consideration is 
 not material for the purposes of those Acts. 
 
 The word "consideration" is a legal term, and it means that "What is con- 
 whicli in point of law is the consideration for the giving of the ^'^'•''''*'°"^ 
 instrument {h). It means everything, no more and no less, than 
 the grantor gets for the bill of sale ('•), but not at all necessarily 
 
 (/•) /;; re Stoclton Iron Furnace Co., {z) 45 & 4(j ^'^ct. c. 43, s. 8. 
 
 10 Ch. D. 356, 357; Ex parte Funnett, (a) Post, pp. 142 et seq. 
 
 10 Ch. D., per Jessel, M.R., 235, ami (&) JCx parte ChalUnor, 10 Cli. I). 
 
 Lush, L.J. , 230. 205, per .Tame.'!, L..). ; Ex jntrie Wlnttr, 
 
 [w) 41 & 42 Vict. c. 31, s. 8. 29 W. K. 575. 
 
 {x) 45 & 40 Vict. c. 43, s. 8. {c) Ex parte Charin(j Cross Advance 
 
 (y) 41 & 42 Vict. c. 31, s. 8. Bank; 16 Ch. D. 35.
 
 statement ot 
 amount. 
 
 142 BILLS OF SALE ACTS, 
 
 the amount named by the bill of sale, which may be much more 
 or less than the consideration ('/). 
 
 Wliat con- It has been held that the consideration which must be set forth 
 
 uau8t1)e°s"ateJ. ^^ ^^^^^ wliich the grantor actually receives from the grantee for 
 
 giving the bill of sale, the real, the actual consideration ; probably 
 
 it need not be stated w^itli minute accuracy, but it must be set 
 
 forth substantially (e). 
 
 It is sufficient if the facts are accurately stated either as to their 
 legal effect or as to their mercantile and business effect, although 
 they may not be stated with strict accuracy (/). The real con- 
 sideration 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 whicli must be stated (//). 
 
 What is proper There is oue class of cases in wliich the real question is, what 
 is a proper statement of the amount of the consideration ? 
 
 The fact that part of the money was paid to other persons with 
 the grantor's assent does not render the statement of the con- 
 sideration inaccurate {li). 
 
 So, a statement of the consideration as "£2050 by the mort- 
 gagees 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 payaltle by the mortgagor to the mort- 
 gagees, but not then due, was upheld {i) ; and also where the 
 consideration was stated to be £560, of which sum £00 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 (/.-). 
 
 But the amount has been held untruly stated where it was 
 
 {(l) Ex parte Chain nor, ICj Ch.'D.2Cj8, per Selborne, L.C. ; Ex imrle Julimon, 
 
 per James, L.T. 2G Ch. D. 348, per Bowen, L.J. 
 
 (e) Exparte XaHonal Mercantile lianl; (/<) IlamJtjn v. Bettdey, 5 C. P. D. 
 
 15 Cb. T). 53, per Jamcia, L.J. ; Jtobfrtu v. 027. 
 
 ^oZ»er<«, 13 Q.B. D. 802, per Brett, M.R.; (i) Ex parte National Mercantile 
 
 Ex parte Winter, 29 W. R. 575 ; Ex Banl; 15 Ch. D. 55 ; Credit Co. v. Pott, 
 
 parte Beetenson, 42 L. T. (N.S.) 808. C Q. B. D. 295. 
 
 (/) Credit Co. v. Pott, G Q. B. D. 299, (/,) Ex parte Challinor, 16 Ch. D. 2C0 ; 
 
 per Brett, L.J. followed in Ex parte BoUand, 21 Cb. D. 
 
 (</) Credit Co. v. Pott, Q. B. D. 207, 
 
 j43.
 
 1878 AND 1882. 143 
 
 expressed to 1)0 "112U by tlio mortgagee paid to tlie mortgagor at 
 or before the execution liereof," wliili; in fact (Jidy l*.") was 
 advanced, £-]0 being deducted by the grantee for interest and 
 expenses (/). This case was distinguished from Bx parte National 
 Mercantile Bank (m) on the ground that in that case the retainer 
 was to meet a debt existing independent of the bill of sale, wliile 
 in this case the lial)ility arose solely out of it. 
 
 In Bx parte Bolph (n) and Bx pietrte Birth (o) these cases were Test wliotlier 
 all reviewed and reconciled in the Court of Appeal by the appli- intated!'"^"" 
 cation of llie following principle, laid down liy -Tame?, L.J., in Bx 
 parte Challinor {p), and quoted with approval by Cotton, L.J., in 
 Bx 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 borrower, 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 consideration paid 
 to the grantor. Ikit the money retained or applied must be in 
 respect of a debt strictly so called, a debt existing at the lime, 
 independent of any created by the bill of sale (r). 
 
 8o, where the consideration was stated to be "£700 now in 
 hand paid," while £7 10.5. was retained by the grantee for com- 
 mission on the loan and expenses in connection therewith, it was 
 held untruly stated (s). 
 
 In Bx pxivte Bolph (t) the consideration was expressed to be "£50 
 by the assignee paid to the assignor at or before the execution 
 hereof." In fact, only £21 lOs. 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 ttco days, in accordance with a written 
 request of the assignor dated the day of the execution of tlie deed. 
 
 (Z) Ex parte C/iarlvg Cross Advance (r) Ex jxirte Firth, 19 Ch. D. 429, per 
 
 JBanli, 16 Ch. I). 35; Ex parte Firth, .Tcssel, M.K. ; and seo Ex 2)arte Bolland, 
 
 19 Ch. D. at p. 430. 21 Ch. D., per Cotton, L.J., 552. 
 
 {m) 15 Ch. D. 42. («) Hamilton v. Cliainc, 7 Q. B. D. 1, 
 
 \n) 19 Ch. D. 98. 319; and sec Ex parte Carter, 12 Ch. D. 
 
 (o) 19 Ch. D. 419. 908. 
 
 Ip) 16 Ch. D. 260. (0 1^ t'li. D. 98 ; see Collis v. Tuson, 
 
 (<7) 21 Ch. D. at p. 552. 46 L. T. N.S.) 387.
 
 144 BILLS OF SALE ACTS, 
 
 The Court of Appeal held the consideration to be untruly stated, 
 Itecause the £2-5 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 (u), the consideration was expressed to be " the 
 sum of £40 now lent and paid by the mortgagee to the mortgagor," 
 while in fact only £38 lO*'. was then paid, £1 lO.s. being retained 
 by the grantees for the cost of the bill of sale given by way of 
 mortgage. It was held b}' the ("curt of Appeal that, as there 
 was no debt until after the transaction was completed, the con- 
 sideration was untruly stated. 
 
 But in the case of Li re Cann (c), 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, received 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 Ux 2^0''>'t<^ Bolland (?r) the consideration was stated to be 
 "£2000 to the mortgagor paid by the mortgagee immediately 
 before the execution of these presents," while the grantor owed 
 the grantee £2000, the balance 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 consideration to be 
 truly stated, following Ex 2Jcirte Challinor (x), as it would be held 
 in law a payment of the £2000. 
 
 Tasfis as to There is another class of cases in which the question is whether 
 
 ^'/^"i!!!!!!!!"^^^ the circumstances attending the advance have been so mis-stated 
 as to amount to an untrue statement 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 
 
 (u) 19 Ch. D. 419. (u') 21 Cli.D. 54.3. 
 
 (r) 13 Q. B. D. 3G ; and sec Er parte (.r) 16 Ch. D. 2G0. 
 
 Williams, 25 Cb. D. C5G.
 
 1878 AND 1882. 145 
 
 of the transaction so mixed n]^ witli tlie eonsideration as to give 
 an untnu) impression of wliat tlie considenilion ivally was (//). 
 
 Piecitals of tlie motive and ol)ject of the advance need not be 
 stated, nor need any collateral agreement or bargain between the 
 grantor and the grantee as to the application of the considera- 
 tion (z) ; nor need the history of the transaction be described (a). 
 
 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 transaction (h). 
 
 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, being a mere 
 collateral agreement, is not part of the consideration (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 (r). 
 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). 
 
 {;/) IlamJi/n v. Bettcley, 5 C. P. D., per Grove, J., 330. 
 
 (,~) Ex ^jf/r^e National Mercantile (d) Ex jiurte Popplc}vell,2\CA\.\). "iZ. 
 
 Banh, 15 Cli. D., per James, L.J., 53; (e) Ex parte Winter, 29 W. I!. 575. 
 
 Ex parte BopjileveU, 21 Ch. D. 73; Ex (/) Ex parte Charine/ Cross Advance 
 
 IKirtc Winter, 29 W. R. 575. EanJc, IG Cli. 1). 34. 
 
 (rt) Ex parte Allam, 14 Q. B.D. 43. (//) Carrard v. 21cth, 50 L. J. (\.S.) 
 
 {h) Ex j)arfe Nntioncd Mercantile C. P. 187; hni scq Ex ])arte liolj)!!, 19 
 
 Banlc, 15 Ch. D., per James, L.J., 53. Ch. D. 98. 
 
 (c) liohcrts V. lioherts, 13 Q. B. D. (h) Ex parte Allam, 14 Q. B. D. 43; 
 
 794. but see Ex parte Berwicl; 29 W. K. 292. 
 
 L
 
 146 BILLS OF SALE ACTSj 
 
 Wliero a sum of £100 was advanced hy five instalments, the 
 first three of which, amountinpi; to £2 10, were advanced to the 
 grantor and his partner some time before June, while £100 v/as 
 advanced in June and £00 in July, both to the grantor alone, and 
 the deed recited that £340 was advanced to the grantor in June all 
 at one time, it was held that the consideration was not truly stated (<). 
 
 Act 1682 It has been a question whether the Bills of Sale Act, 1882, 
 
 "•JP^'f^ • >. aiDolied to cases in which the ri^ht to immediate possession of 
 
 ■whether right 1 1 
 
 to immediate j|jg aoods was givcu by the grautor to the grantee, and the grantee 
 |STs°given took possession of the goods instantly in accordance with the con- 
 
 to ^grantee or ^^^^^ ^^^^^ ^^^^ ^j^^^^ ^^^^^ ^j.y 
 
 The Court of Appeal, however, in Ex 2Jcirte Parsons (/), where 
 the bill of sale conferred a right to immediate possession of the 
 goods, laid down the principle 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 sec- 
 tion i of the Act of 1878) section 9 of the Act of 1882 avoids cvtri/ 
 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 not when But a transaction (such as a pledge) the effect of which is 
 IToncrtrans- immediately to transfer possession as distinguished from giving 
 ferred by the ^j^^, ^^„\^^ |-q ^j^j-g [^ jg ^ot within the scope of the Bills of Sale 
 
 transaction. ° 
 
 Acts. The distinction seems to be that in such a case the transfer 
 of possession precedes the document, instead of following it ; and 
 that the special property passes by tliat transfer of possession, 
 and not h)/ the document (?»). 
 
 What is a bill The question whether a particular document, if a security for 
 
 oul'ct'^irTs!'' the payment of money, is within the Act of 1882 depends upon 
 
 whether it is a bill of sale as defined by the Act of 1878 (n). If 
 
 the document is a bill of sale as defined by the Act of 1878, then 
 
 it is a bill of sale within the Act of 1882. 
 
 (i) Ex parte Curler, 1'2 Cli. D, 908 ; In re Cunningham, 28 Ch. D. 6S2 ; but 
 but see Ex parte Xatlonal Mercantile see post, p. 150. 
 Bank, 15 Ch. D. 55 ; Credit Co. v. Pott, (/) 10 Q. B. D. 532. 
 
 6 Q. B. D. 295. ("/) In re Hall, 14 Q. B. D. 38G ; //* 
 
 (/.•) See In re Hall, U Q. B. D. 38C ; re Hardu.-icl; 55 L. J. (N\S.) Q. B. 490. 
 (n; 41 & 42 Vict. c. 31, ss. 4, 6, 10 (3j ; 45 & 4G Vict, c. 43, s. 3.
 
 1878 AND 1882. 147 
 
 By the r.ills of Salo Act, 1878 (o), tho expression "bill of What is a bill 
 sale" includes "bills of sale, assignments, transfers, declarations Act' 1878. 
 of trust without transfer, inventories of j^oods witli receijit tliereto 
 attached, or receipts for purcliase-nioneys of goods, and other 
 assurances 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 agreement, 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 " : — What is a bill 
 
 of sale. 
 
 An agreement to execute a l)ill of sale, if relied on as an equit- 
 able assignment, but not if a mere agreement (p) ; a receipt for 
 purchase-money (q) ; a document giving licence to take immediate 
 possession (r) ; a post-nuptial settlement (.s), but not if made in 
 pursuance 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 (n). 
 
 And any defeasance, condition, or declaration subject to which 
 the bill of sale is given, and which is not contained in the body 
 thereof, shall be deemed to be part of the Ijill, and shall be written 
 on the same parchment or paper thereof (r). 
 
 A parol agreement to pay a debt by instalments is a defeas- 
 ance (w) ; but a memorandum was held not to be a condition so 
 as to require registration (.'•), nor is a verbal agreement not to 
 register a bill of sale (y). 
 
 (o) Section 4. (.v) Asldon v. BlachJuai; L. IJ. 9 Eq. 
 
 (p) Ex 2Mrte. Maclay, L. E. 7 Cli. 510. 
 
 G43; Ex jjcirte Connhm,h. R. 16 Eq, {t) Foiderw. Foster,2B'L.3.Q.Y^.2\0. 
 
 414 ; Edwards v. Edwards, 2 Ch. D. 291. («) Section 6 ; ante, p. 140. 
 
 ((/) Snell V. HelfjJiton, 1 C. & E. 95. {v) Section 10 (3). 
 
 (/•) Beg. V. Townshend, 15 Cox, C, C. {ic) Ex parte Southam, L. K. 17 Ed. 
 
 4GG ; In re Cunningham tt Co., 28 Ch. D. 578 ; and see Ex parte Odell, 10 Ch. D. 76. 
 
 682 ; and see In re Hardwki-, 55 L. J. (x) Ex parte ColUns, L. R. 10 Ch. 
 
 (N.S.) Q. B. 490. 367. 
 
 (//) Ex parte Poppkwell, 21 Cb. D. 73, 
 
 L 2
 
 143 BILLS OF SALE ACTS, 
 
 A bill of sale given by tlie equitable owner will be vnliJ if 
 registered in his name (z). 
 
 A bill of sale originally duly registered, even if assigned by tbo 
 grantee, will be void if not re-registered (z:). 
 wi.iit is vol a But the expression " bill of sale " does not include the following 
 documents : — 
 
 Assignments for the benefit of the creditors of the person making 
 or "iving the same, marriage settlements, transfers or assignments 
 of any ship or vessel or any share thereof, transfers of goods in 
 the ordinary course of business of any trade or calling, bills of sale 
 of goods in foreign parts or at sea, bills of lading, India warrants, 
 warehouse-keepers' certificates, warrants or orders for the delivery 
 of "oods, or any other documents used in the ordinary course of 
 business as proof of the possession or control of goods, or author- 
 izing 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 1 je bills of sale : — 
 
 An efjuitable sub-mortgage of a registered l)ill of sale (a) ; a 
 transfer so far only as relates to the sum transferred, where a 
 further advance is then made (h) ; a contract giving a right con- 
 nected 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 acknowledgment for 
 money previously paid (rf) ; a mere equitable agreement (c) ; a 
 building agreement which is a licence to take possession of personal 
 chattels, but not as security for a debt (/), or which contains a clause 
 that all laiildiug or other materials brought by the builder on the 
 land shall become the property of the landowner {cj)\ an agreement 
 for the loan and hiring of furniture unaccompanied by any other 
 
 (z) Walrondy. GoIdmann,lQQ. B. D. and sec section 10 (5), and Ex juirte 
 
 121, not following Chajnnan v. Knirjht, >SJia>i\ 25 W. R. G8. 
 5 C. P. D. 308. (c) Ej: parte Watso)!, 5 Ch. D. 35. 
 
 (zz) Kciret v. The Kosher Meat >^upphj (d) Woodf/(dc v. Godfrey, 4 Ex. D. 59, 
 
 Association, Limited, 2 Q. 15. D. 301; S. C. 5 Ex. D. 24; Marsden v. Meadows, 
 
 and see Ilcrrne v. JLu/hes, Q. B. D. G7G ; 7 Q. B. D. 80 ; and see Ex parte Odell, 10 
 
 Ex parte >Shaw, 25 Sv. H. C8G ; AsJwtv v. Cb. D. 76 ; Exparte Cooper, 10 Ch. D. 313. 
 Leicis, 10 Q. B. D. 477. {e) Ex parte Machnj, L. W. 8 Cli. G53. 
 
 (a) Ex parte Turquand, 14 Q. B. D. (/) Ex parte Xeiritt, IG (Mi. ]). 522. 
 
 636. («/) Jiecves v. Barlov, H (j. IJ, D. 010, 
 
 (t) Home V. Ilvfjiics, 6 Q. B. D. 676 ; S. C. 12 Q. B. D. 436.
 
 1878 AND 1882. 149 
 
 documents (//), a parol agreemcut to give a l)ill of sale (/) ; property 
 bf)uglit by a wife after marriage in renewal or substitution for 
 that included in the marriage settlement (/,) ; an assignment for tlie 
 benefit of all the creditors of the grantor (/) ; a valid hypothecation 
 under the Factors Act (m) ; an assignment of a foreign sliip {n) ; 
 a cliarge 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 (i)). 
 
 A bill of sale of goods in Scotland need not l)e registered in 
 England (pp) ; 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 (7). 
 
 By the Bills of Sale Act, 1878, the expression "personal chattels " What are per- 
 is defined to mean goods, furniture, and other articles capable of ^°^^^ thattels, 
 complete transfer by delivery, and (when separately assigned or 
 charged) fixtures (r) and growing crops {s). 
 
 Trade machinery, whether separately assigned or charged, or not, 
 is, for the purposes of this Act, deemed " personal chattels " (/). 
 
 But the expression " personal chattels " does not include chattel What are not 
 interests in real estate, nor fixtures (k) when assigned together chauds. 
 u-ith a freehold or leasehold interest in any land or building to 
 which they are alhxed; nor growing crops (v) when assigned 
 together icith any interest in the land on which they grow ; nor 
 
 (/t) Bx parte Crawcour, 9 Ch. D. 419 ; (;)) Heeves v. Barlow, 11 Q. B. D. 610, 
 
 and SCO North Central Wagon Co. v. S. C. 12 Q. B. D. 436 ; In re Hardwich, 
 
 iManchefiter, dbc, Co., 32 Ch. D. 477. 55 L. J. (N.S.) Q. B., per Bowen, L.J., 
 
 (0 Exjmrte Hauxwell, 23 Ch. D. 626. at p. 493. 
 
 (Jc) Duncan v. Cusldn, L. R. 10 C. P. {pp) Coots v. Jed-s,L. E. 13 Eq. 597. 
 
 554. (7) Brookes v. Harrison, 6 L. 11. Ir. 
 
 (l) Beg. V. Creese, L. 11. 2 C, C. E. 332 ; see section 24. 
 
 105 ; Johnson v. Osccnton, L. E. 4 Ex. (?•) As to what are fixtures, see notes to 
 
 107 ; Ashford v. Tmtc, 7 Ir. C. L. Rep. Ehccsw Maidc, 2 Sm. L. C. 8th eJ. 169 et 
 
 91 ; Boldcro v. London and Westminster scq. ; and section 7 ; and Ex parte Moore 
 
 Discount Co., 5 Ex. D. 47. and Robinson'' s Banlang Co., 14 Ch. i). 
 
 (to) Ex parte Xorth- ]restern Bank, 379; The fSlujfidd and South Yorhsliire 
 
 L. K. 15 Eq. 69 ; and see Merchant Permanent Building Society v. llurri- 
 
 Banldng Co. v. Spoffcn, Ir. L. E. 11 Eq. son, 54 L. J. (N.S.) Q. B. 15. 
 
 586 ; In re Hail, 14 Q. B. D. 386. (s) Section 4 ; as to gi-owing crops, 
 
 (») Union Bank v. Lcnanton, 3 C. P. sec further, section 7. 
 
 D. 243; Ex parte Ilodgkin,h. E. 20 Eq. (0 Section 5. 
 
 746. {u) Sec section 5; and .\ct 18S2, s. 6. 
 
 (0) Ex parte Fletcher, 8 Ch, D. 218. (u) See section 7 ; and Act 1882, s. 6,
 
 sesbion. 
 
 150 BILLS OF SALE ACTS, 
 
 shares or interests in the stock, funds, or securities of any (lovern- 
 ment, 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 removed 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 185i did not reriuire registration, as there could be 
 no present delivery of growing crops {»:) ; but so soon as they are 
 severed they become personal chattels under the Act of 1878. An 
 assignment of future growing crops passes the property in them 
 on their coming into existence (./;). 
 Apparent pos- Under the Bills of Sale Act, 1878, a bill of sale was in certain 
 events, but only against certain defined persons, avoided (y), if the 
 personal chattels comprised in it were, at the time specified in 
 section 8, " in the possession or ap-parent possession " of the 
 grantor (:). 
 
 That "apparent possession" was also defined by the same Act (a). 
 
 A Ijill of sale in which the sale or mortgage of the personal 
 chattels comprised in it is followed by a complete transfer and 
 delivery of them to the grantee, either at once or within the period 
 of seven days allowed for registration, is not within this Act (b). 
 The title of the grantee is in such a case as good as if the deed had 
 been duly registered within the time (r). 
 
 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 bankrupt's 
 family, leaving the grantor as much the apparent owner of the goods 
 as he was before tlic execution of the bill of sale ('Q. 
 
 (w) Brantom v. PhilUps, 2 C, P. 1). (;;) Section 8. 
 
 212; Ex parte Panne, 11 f'h. U. 539; (a) Section 4. 
 
 Ex parte National Mercantile Panic, 10 (6) Chajmian v. Kn!i/ht,o ('. V. 1)., 
 
 Ch. D. 104. per (!iove, J., 314, 315; Ex parte Close, 
 
 {x) Clements 7. MattheiCK, 11 Q. B. D. 14 Q. B. D., per Cave, J., 393 ; In re Cun- 
 
 808. nini/ham, 28 Ch. D., per Pearson, .T., 687. 
 
 ((/) Dailx V. Goodman, u C. P. D. IJS ; (r) Ex parte '"^affery, 16 Ch. D. CC8. 
 
 J^jon V. Tucher, G Q. B. D. OGO, S. C. {d) Ex part r. ."iajfcrij, IG Ch. D., per 
 
 (reversed on another point) 7 Q. B. D. 523. Lush, L. J., G71.
 
 1878 ANIJ 1882. 151 
 
 TliG real question .seems to lie lliis in each case, Is the .grantor 
 liavin^^ the goods kept for liini, and tloes he still exercise dojniniun 
 over them :* (r) 
 
 It is immaterial for tliis purpose hoio the grantee under an 
 unregistered bill of sale has acquired possession of the goods so as 
 to exclude the apparent possession of the grantor. It is enough 
 that he has done so ellcctually (/). 
 
 It is a dillicult (piestion to decide what tlie nature of the Wlien ap- 
 possession must be so as to exclude the operation of the Act. This besTinIi't"xT:.is. 
 is a question of fact. 
 
 It must, under the Act, Ix; 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 {(j). 
 
 So, the goods have been held in the apparent possession of the 
 grantor when the grantee of furniture in a house occupied by the 
 grantor put a person in possession 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 posses- 
 sion of the goods in a house belonging to the grantor, in wliich 
 the grantor did not sleep, but of which he had a key, and went in 
 and out as lie chose (/); or when the grantee was entitled to, and 
 unsuccessfully endeavoured to obtain possession of, the goods {k) ; 
 or when the grantor had bailed the goods with a bailee to keep for 
 him (/). 
 
 The occupatwii of the premises by the grantor must be an actual ^^'J>;^t is 
 
 in, i • 1 • PI- • occupation. 
 
 ae jacto occupation ; the mere continuance or his tenancy is not 
 
 enough {m) ; but if he does occupy 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). 
 
 (e) ^nco)iav.i?o^c'r5,l Ex. D. at p. 292. (i) Seal v. ClarUfge, 7 Q- B. D. 51(j. 
 
 (/) Ex parte Si/mmons, 14 Ch. U. 693. (/.-) Ancona v. liogers, 1 Ex. D. 285; 
 
 (r/) Ex parte Lewis, L. K. 6 Ch. 626 ; Ex parte Jay, L. 11. 9 Ch., per Mellisb, 
 
 Ex parte Jay^ L. E. 9 Ch. 697 ; Seal v. L.J., 705. 
 
 Clarichje, 7 Q. B. D. 516. (/) Ancona v. Jlof/ers, 1 Ex. D. 285. 
 
 (/() Ex 2>arte Hoornan, T>. K. 10 Eq. {m) Eobinson v. lirifff/s, L. E. 6 Ex. 1. 
 
 63; and sro AsJiton v. JJlachshaw, \j. R. (».) Pickard v. Marriage, 1 Ex. D. 
 
 9 Eq. 520 ; Ex parte Jfonian, L. E. 12 364; and see Ex parte Morrison, 28 
 
 Eq. 598 ; Ex parte Harding, L. E. 15 W. E. 524 ; Gibbons v. Hiclcson, bb L. J, 
 
 Eq. 223. (N.S.)Ch. 119.
 
 152 BILLS OF SALE ACTS, 
 
 whenappar- Actual visible possession by the grantee or by some other 
 out possession pej-gQii Iqj. iiiiii, if such a possession that every one exercising 
 
 ordinary vigilance can see it, will take the personal chattels out 
 
 of the apparent possession of the grantor (o). 
 
 So the possession of a receiver (p), of a sherili' under an execu- 
 tion issued either by the grantee or a third party (q), an advertise- 
 ment 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 pos- 
 session by the grantee (t), liave been held to exclude the apparent 
 possession of the grantor. 
 
 So, if the grantee openly, really and truly takes possession, 
 although the grantor remains in possession, the Act does not 
 apply (u). 
 
 It is not necessary that the possession of the grantee should be 
 a/xhtsivc to take the goods out of the grantor's apparent possession (r). 
 
 Ai-parent pos- The words "apparent possession" are not in the Act of 1882; 
 
 undir Acf ^^ would therefore seem that this question cannot occur in any 
 
 1882. ]jiii 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). 
 
 deputed Under the Bills of Sale Act, 1878 (u), chattels comprised in a 
 
 ownership not registered bill of sale, if ''iven by way of aljsolute transfer, whether 
 
 under Act o > o j j 
 
 1878, registered before November 1882 or not (:), or if given merely 
 
 (o) Ex parte Saffery, 16 Ch. D., per but see Tiiclccr v. Finlayson, 2-1 W. 11. 
 
 Lash, L.J., 671 ; and sec lAncohi Wayon 570. 
 Co. V, Mnmford, 41 L. T. (N.S.) 655. (0 Ex parte National Guardian 
 
 ijj) Tui/lor V. Edcersky, 5 Ch. D. Assurance Co., 10 Ch. D. 408. 
 740. [ii) JJavies v. Jones, 10 W, Pv. 779, 
 
 ('/) Ex parte Safery, IC Ch. D. 608 ; (r) Act 1882, s. 2 ; ante, p. 151, 
 
 but see /:,'.': parte Mutton, L. R. 14 Eq. (w) Act 1882, s. 8. 
 
 175. (r) Davies v. Jones, 10 W. E. 779; 
 
 (/•) Goiiyh V. Eccrurd, 2 H. & C. 1 ; and see Ex parte Mvrtlock, W. N. (1881) 
 
 Ex parte Lewie, L. 11. C Ch. 626; 101. 
 
 Emanuel v. Brldr/cr, L. IJ. 9 Q. B. 286 ; (,//) 41 & 42 Vict, c, .Jl, s. 20; Ex 
 
 t'Smith V. Wall, 1« L. T, 182. parte hard, '!?> Ch. D. 40;t. 
 
 («) Ex parte Fletclier, 5 Ch. L>. 809; (t) Hwi/t v. J'anneU, 24 Ch. D. 210,
 
 1878 AND 1882. 153 
 
 by way of security for the payment of iiionuy, aiul duly registered 
 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 registered bill of sale is expressly protected Ijy 
 that Act from the operation of the doctrine of reputed ownership. 
 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 Ijy way of security but umkr Act 
 for the payment of money, and duly registered on or after 
 November 1, 1882 (h), are in the order and disposition of the 
 grantor within the bankruptcy 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 validly 
 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 unprotected by the Bills of Sale Act, 1878, and there- 
 fore are subject to this clause of the Bankruptcy Acts (d). 
 
 Under the repealed Act of 1851 the effect of an execution was iiow f:ir 
 to entirely avoid a prior unregistered bill of sale (e). Under the avoids 'bill of 
 Bills of Sale Act, 1878, however, an unregistered bill of sale is void ^^'*^- 
 only so far as is necessary 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 (y). 
 
 By the Bills of Sale Act, 1878 (//), a bill of sale must be regis- rxegisti-ntion 
 tered within seven clear (i) days after it is made or given ; and lyygl^ 
 the bankruptcy of the grantor within those seven days is immaterial 
 if the bill of sale is registered in due time (A). 
 
 If a bill of sale is void because not re-registered at the com- 
 
 (a) Li re Hewer, 21 Ch. D. 871. (e) likhurds v. Jamcn, L. E. 2 Q. B. 
 
 (6) 45 & 4G Vict. c. 43, rs. 3, 15; 285; but see /?i 7'e Artistic Colour Print- 
 
 Swift V. Fannell, 24 Ch. 1). 210. inff Co., 21 Cb. D. 510. 
 
 (c) As to what is reputed ownership, (/) Ex parte Blaiberg,2Z C\\. D. 254. 
 Bce ante, pp. 128, 129, 135; Kobson, (fj) Edwards \. Echmrds, 2 Ch. D. 201; 
 Bkcy. 5th ed. 529 et scq. as to Act 1882, ante, pp. 138, 140. 
 
 (d) Asliton V. Blaclcshaw, L. 11.9 Eq. (//) Section 8. 
 610; Ex parte Harding, h. 11. 15 Eq. (/) Section 10 (2). 
 
 228. (/>•) Ex parte Kahcn, 21 Ch. D. 871.
 
 154 BILLS OF SALE ACTS, 
 
 mencement of this Act, it cannot be renewed under it ; and the 
 same will ajiply to an assignment of it (/). 
 
 Tmier Act Bv the Bills of Sale Act, 1882 (m), a bill of sale must be duly 
 
 registered, under the Act of 1 878, within seven clear days after its 
 execution. 
 
 This Act has been held not to apply to an unregistered bill of 
 sale executed more than seven clear days before the date of its 
 operation (n). 
 
 Successive Under the repealed Act of 1851 there was a practice, by agree- 
 
 bills of sale. . . 
 
 ment between grantor and grantee, to give and accept successive 
 bills of sale, each executed witliin twenty-one days after the one 
 before, the last of the series only being registered ; and this was 
 upheld against execution creditors (o), but not against a trustee in 
 bankruptcy (j>), unless based upon a new consideration (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 (•■') ; nor 
 to a subsequent bill of sale executed more than seven days after the 
 execution of a prior unregistered bill of sale of the same chattels (t). 
 
 ^/f -n^P/'T'y ^y ^^^ Bills of Sale Act, 1878 (u), it is provided that in case two 
 
 of bill of sale. . \ / i. 
 
 or more buls of sale are given comprising in whole or in part any 
 of the same chattels, they shall liave priority in the order of the 
 date of their registration respectively as regards such chattels. 
 
 This has been held to ap})ly not only as between two rnjislcrcd 
 
 (I) Askew V. Lcn-is, 10 Q. Jl. I). 477 ; (/;) J-y parte f'ohcn, L. H. 7 Ch. 20; 
 
 and sec Karet v. Kosher Meal 'Supply Ex pari e Stevens, L. 11. 20 Eq. 786; Ex 
 
 Association, 2 Q. B. D. 361. parte Furhtr, (> Ch. D. IHl ; Ex parte 
 
 (m) Section 8. J'anne, 11 Ch. D. 531). 
 
 (ii) JficLsou V. Darlon; 'l.\ ( li. i>. (7) /« re ./ocAwh, 4 Cli. I). C82. 
 
 COO. ('•) 'Section 9. 
 
 (o) StansfiM v. f'uhitt, 2 D. (i. & .F. (/) Ex parte l/aKZinll/r.i Ch. D. 62ri. 
 
 222; JlolUngsworth v. While, 10 W. \\. (I) Carrard v. J/e<r/:, 50 L.J. (N.S.) 
 
 619; Smalc v. Burr, L. R. 8 C I'. C4 C. P. 187. 
 
 liamsdcn v. Lvpton, L. K. 9 Q. B. 17. («) Section 10 (4).
 
 1878 AND 1882. 155 
 
 bills of sale, but also as between a suljsuquciitly registered and a 
 prior unregistered bill of sale (r) ; and whcllicr the grantee under 
 either bill of sale is or is not in })OSsession of the goods (/'•). 
 
 The point has not been deeided winch of two bills of sale, each 
 duly registered within the time prescribed by the Acts, has priority. 
 
 Under the Bills of Sale Act, 1878, a transfer or assignment of a Rcpistration of 
 registered bill of sale need not be registered (./;) ; and a renewal 0^1!!' " ' 
 of registration shall not become necessary l)y reason only of a 
 transfer or assignment of a bill of sale (y). A sub-mortgage of a 
 registered bill of sale by way of mortgage need not be registered (:). 
 
 It seems doubtful whether if, on the transfer, a fresh advance be 
 made to the mortgagor by the transferee, such transfer will need 
 registration as to the further advance {a) ; it will not need regis- 
 tration to the extent of the amount transferred (A). xVnd the 
 point has not been decided whether the transferee, either with 
 or without the concurrence of the original grantor of an unre"is- 
 tered bill, can by registration protect himself ('), 
 
 A bill of sale registered after October Gl, 1882, must also be 
 renewed every five years in accordance with the J5ills of Sale 
 Act, 1878 (f/j. 
 
 A solicitor must attest the execution of every bill of sale under Attestation of 
 the Bills of Sale Act, 1878 ; and the attestation clause must state \^l{^l ^a 
 that the attesting solicitor explained the effect of the bill of sale to ^^^'^• 
 the grantor before the execution of it (c). 
 
 Any solicitor, whether in practice or not, or a mere clerk, and 
 even if in any way connected with the grantee (/), and whether the 
 solicitor of the grantee {</), or of l)oth the grantor and grantee {h ), 
 may be the attesting witness ; but the grantee himself may not 
 
 (t)) Conclhj V. Steer, 7 Q. B. D. 520. (c) See Chapman v. KnSijht, b C. P. 
 
 [lo) Lyons v. Tuclccr, (3 Q. B. D. 660, D. 308 ; Carrardw Mecl; 50 L. J. (X.S.) 
 
 S. C. 7 Q. B. D. 523. U. P. 187. 
 
 (x) Section 10 (5). {d) See Act 1882, s. :\ ; Sirirer. Cook- 
 
 {ij) Section 11. son, 9 App. Cas. (w.'i. 
 
 (s) Ex parte Turqiiand, 14 Q. B. D. (c) Section 10 (1). 
 
 63G. (./■) mil V. Klrhoood, 28 W. J!. .'158. 
 
 (a) Home v. Hughes, G Q. B. D. G76; {r/) Penvurden v. livhcrts, '.' Q. B. |). 
 and see Wale v. ('oinmissioners of Inland l:)!. 
 
 Hevenue, 4 Ex. D. 270. (//) I'crnon v. CuoJcc, 49 L. J. (N.S.) 
 
 (b) Ibid. G, l\ 7G7.
 
 156 BILLS OF SALE ACTS, 
 
 attest if a solicitor (/), neither, of course, can the grantor if a 
 solicitor. 
 
 If the attestation clause states that before the execution of the 
 bill of sale the efl'ect of it has been explained by a solicitor, the 
 Court will not iiKjuiie whether any explanation was in fact given, 
 or what its nature was {k) ; and the bill of sale will be deemed 
 valid even if the attesting solicitor omitted to give the explanation 
 which the attestation clause states he has given (/.•), nor need that 
 statement be verified by the allidavit of due execution and attesta- 
 tion directed to be filed by the Act (/). 
 
 Uniler Act The Bills of Sale Act, 1882 (;»)> repeals these two rc(juirements 
 
 as to attestation, and provides that the execution of every bill of 
 sale by the grantor shall be attested by one or more credible 
 witness or witnesses, not being a party or parties thereto. 
 
 This new provision will apply onli/ to bills of sale by way of 
 security for the payment of money made after October 31, 1882. 
 
 By the Bills of Sale Act, 1878 (n), the following documents 
 must be presented to the registrar within seven clear days after 
 the making of the bill of sale : — 
 
 1. The original bill, with every schedule or inventory thereto 
 annexed or therein referred to. 
 
 2. A true copy (o) of such bill, and of every such schedule or 
 inventory, and of every attestation of the execution of such bill 
 of sale. 
 
 3. An affidavit of the time of such bill of sale being made, and 
 of its due execution and attestation, and a description of the 
 residence and occupation of the grantor, and a description of the 
 residence and occupation of each attesting witness. Such copy 
 and affidavit must be fded with the registrar within seven clear 
 days after the making of tlic bill of sale. 
 
 The decisions as to the allidavit to be filed and as to the 
 
 (i) ;VeaZ V. Clarhlrjc, 7 Q. B. D. 5ir,. ()?)) Section 10 ; ante, p- !''•''. "ote (c), 
 
 {!;) Hill V. Kirhrood, "28 W. 1{. 358 ; {u) Section 10 (2). 
 
 Ej:j)artc Xational Jlcrcanttle Bunk, 15 (o) Sec Gardnor v. Slum-, 19 W. Ti. 
 
 C'l). D. 42 753; Lamb v. Brace, 21 ^\■. Iv. C45 ; 
 
 (/) Section 10 (2). Be Ileicer, 21 Cb. D. 871.
 
 1878 AND 1882. 157 
 
 description of the grantor or attesting witness under the repealed Am.l.uit 
 Act of 18-j1- npply to this section of the lUlls of Sale Act, 1878, i878 ana Act 
 and also, it is conceived, to bills of sah- under the liills of Sale ^^^''' 
 Act, 1882. 
 
 The aflldavit must state as a fact the true date of execution 
 of the bill of sale (j>). J kit that date may be stated by refer- 
 ence (q). 
 
 It must state the due execution and attestation of the bill of 
 sale. The affidavit must state that the attesting solicitor was 
 present, and did witness its due execution (/•). 
 
 It must describe the residence and occupation of the grantor and 
 of each attesting witness (s). 
 
 This description must be that which applies at the time of 
 swearing the affidavit, and not of executing the bill of sale (0- 
 
 A description to the best of the belief of the deponent has been 
 held sufficient («). 
 
 There is nothing in the Act to necessitate the grantor's name 
 being correctly given, and, in the absence of fraud, an error in it is 
 immaterial (v). 
 
 The description must be contained either somewhere in the 
 affidavit, even in the introductory part of it (w), or in some docu- 
 ment incorporated by reference into it (.>), or by a reference in the 
 affidavit to the bill of sale (//) ; or that in the affidavit may be 
 explained or supplemented by the bill of sale (:). Lut a descrip- 
 
 (jj) DarvUl v. Terry, G H. & N. 807. S. C. 45 L. T. (N.S.) 2G8 ; but see In re 
 
 (q) Lamb v. Brace, 45 L. J. (N.S.) //«wr, 21 CIi. 1). 871. 
 
 Q. B. 538. ((() lloe v. Braihhaw, L. ]J. 1 Ex. 
 
 (r) fSharpe v. Birch, 8 Q. B. D. Ill ; lOG ; and see Yates v. Ashcroft, 31 \V. I!. 
 
 Ford V. Kettle, 9 Q. B. D. 139 ; I'h^ parte 15G. 
 
 KnJfjhtley, 30 W. K. 844; Coojyer v. {v) Ex parte M'Hattle,\(} Ch.D.Z^B. 
 
 Zeffert, 32 W. E. 402 ; and see Ex (w) Blaihery v. Parke, 10 Q. B. D., 
 
 parte Carter, 12 Ch. D. 908. per Nortli, .I.,"94. 
 
 (s) Pklcard v. Marriaye, 1 Ex. D. (.r) Ibid. 
 
 364; i\7c/(o/,soKv. CofTper, 27 L. J. (N.S.) (y) Banhury v. WJn'te, 2 IT. & C. 
 
 Ex. 393. 300 ; Boiith v. Boublot, 1 E. & E. 850. 
 
 (/) Button V. O'Neill, 4 C. P. D. 354, {;:) Jones v. Harris, L. K. 7 (J. 15. 
 
 overruling London and Westminster 157; Tliorj) \. Broirn, I;. 1\'. 2 11. I,. 
 
 Loan Co.v. Chance, 12 C. B. (N.S.) 730 ; 220 ; E.c parte Maelen-.ie, 42 L. J. I'.kcy. 
 
 Ex parte Wolfe, 44 L. T. (N.S.) 321, 25.
 
 158 BILLS OF SALE ACTS, 
 
 tion in the bill of sale alone is insufficient (a), and a contradiction 
 between the description in tlie affidavit and that in the bill of sale 
 is fatal (h). 
 
 If there are several grantors, the description of each of them 
 must be given, although only one is in possession of the goods (c). 
 But the joinder in a bill of sale of a person who had no interest 
 in the goods, and had nothing to convey, is mere surplusage, and 
 tlierefore immaterial (d). 
 
 What is a There have been many decisions upon the question what is a 
 
 tutticient />> • . i • • 
 
 desciiptioD. sufficient description of the residence of the grantor and of every 
 attesting witness. 
 
 The principle by which the Court tests the sufficiency of the 
 description is to strictly follow out the object of the Bills of Sale 
 Acts. That was, and is, by means of registration, to give notice to 
 all who are likely to deal with the grantor of the bill of sale ; to 
 enable any one who is asked to give him credit to know at once, 
 by looking at the register, whether the person he is asked to give 
 credit to has executed a bill of sale (c). So, with regard to each 
 attesting witness, the object is to enable any person interested 
 in making inquiries to find that attesting witness (/). 
 
 The test really is whether the description is enough to enable 
 any actual or intending creditor, by the use of ordinary care, to 
 identify his debtor, or an attesting witness, so as to be al»le to 
 make any necessary inquiries of hhn (g). It need not afford the 
 fullest means of knowledge (/<). It in a question of circumstances 
 in each particular case, and no more general rule can be laid down. 
 
 The Ijurden of proof lies on the person who challenges the 
 accuracy of the description to shew it is not accurate (/). 
 
 (a) Jlalton v. FiujUsh, 7 E. & B. 94. Western DepoxH Jkinl; L. R. 10 Ex. C4 ; 
 
 {h) Murray v. Mackenzie, L. Pi. Ki J/«r)W/ v. J/ac7.e7(.t/f, L. K. IOC. P. 625. 
 C. P. 025; Brodrick v. >%«/<>, L. P. (; (/) Lamh v. Bruce, 45 E. J. (N.S.) 
 
 C. P. 98. Q. 11 538. 
 
 (c) Hooper v. Farmenter, 10 W. P. (7) Hi J, 
 
 648. {!,) Blount v. Harris, 4 Q. B. D. G03. 
 
 {(l) Ex parte I'opjjkueU, 21 Cli. D. 7:5. (/) Sutton v. Bath, 3 H. & N. 382; 
 
 , (e) Ex parte Hoowan, L. R. 10 Eq. Chant v. Shaw, L. P. 7 Q. B. 700; 
 
 63; Jonea v. Harris, L. P. 7 Q. B., per Throssel v. JIarsh, 53 L. T. (N.S.) 321 ; 
 
 Cockburn, C.J., 160; Larchin v. North- but see Castkv. Dounton,b C. P. D. 56.
 
 1878 AND 1882. 
 
 150 
 
 An error in tlie descrijitinn whieli is mero surpln.sri;:;o (/•), or 
 which cannot niisk'iul (7), will not avoid the re.^istralioii ; ])ut it 
 will if calculated to mislead (///), as where thewron^ir ninnber of the 
 house or street is given (//), or, of course, if ahsolutely incorrect (o). 
 
 The residence which should be described is the place or places (p) ResiJence. 
 in which the grantor or attesting witness carries on business or is 
 occupied during the day, either for himself or for another— the 
 place where he is most likely to be found (q). The residence of 
 an incorporated company is its princi])al oilice {r). 
 
 In the cases cited below, the residence of the grantor or 
 attesting witness has been held to be described sulUciently (i), or 
 insufficiently (;'). 
 
 The same test is applied to determine whetlier the occupation uccnpation. 
 of the grantor and each attesting witness is sutticiently described. 
 Occupation means the principal business of a man's life, vocation, 
 calling, trade, the business wliicli a nian follows to procure a 
 living or obtain wealth {a), the business in which a man is 
 usually engaged to the knowledge of his neighbours {o). The 
 occupation described must be that (if any) at the time of swear- 
 ing the affidavit («•). Probably, if the grantor or attesting witness 
 has more than one occupation, he need only state that which is 
 his substantive occupation (./•). 
 
 (/.•) Ex parte ropplewdl,1\ CL. D. 73; 
 Exparte Wolfe, 44 L. T. (N.S.) 321, S. ('. 
 45 L. T. (N.S.) 268. 
 
 (0 Hewer v. Cox, 3 E. & E. 428; 
 Blount V, Harris, 4 Q. B. D. 603 ; Ex 
 jmrte M'Hattle, 10 Ch. D. 398 ; Corbetl 
 V. lioiee, 25 W. 11. 59; Throsnel v. 
 Marsh, 53 L. T. (N.S.) 321. 
 
 («i) Castle V. Downton, 5 C. P. D. 56. 
 
 (/() j\Iurray\. Mackenzie, L. R. IOC. P. 
 625. 
 
 (o) Cooper v. Davis, 31 AV. R. 721, 
 S. C. 32 W. li. 329. 
 
 (jj) Wallls V. /i'mith, W. N. (1882) 77. 
 
 (q) Attenhorough v. Thomjjson, 2 H. 
 & N. 539 ; Blackwell v. England, 8 E. 
 & B. 56 ; Ex imrte Bren-ell, 29 AV. R. 
 99 ; Heiver v. Cox, 3 E. & E. 428. 
 
 (/•) Maiujhan v. S}tarp)e, 17 (". B. 
 (N.S.) 443 ; Shears v. Jacob, L. R. 1 C. P. 
 523 ; Deffell v. White, L. R. 2 C. P. 144. 
 
 [s) Reiver v. Cox, 3 E. & E. 428 ; 
 
 Blachu'ell v. England, 8 E. & B. 5C ; 
 Bellamy v. Saul, 7 L. T. (N.S.) 345; 
 Cooper V. Ihherson, 29 W. R. 56G ; In 
 re. Mouhou, 51 J.. J. (N.S.) Ch. 823 ; 
 Briggs v. Boss, L. R. 3 Q. B. 268 ; 
 McCue V. James, 19 W. R. 158; Blount 
 V. Harris, 4 Q. B. T>. 003 ; Ex inirtc 
 M'Hattie, 10 Ch. D. 398. 
 
 (t) Jones V. Harris, L. R. 7 Q. B. 
 157 ; Be Harms, 10 Ir. Ch. lUU ; 
 Murray v. Maclenzie, L. R. 10 C. P. 
 625 ; ante, pp. 156 et seq. 
 
 (w) Tuton V. tSanover, 3 11. & N. 280. 
 
 (/;) BucJcin v. Hamhjn, 18 \V. R. 43. 
 
 [w) Ante, p. 156 ; and see Ex parte 
 Chapman, ^b L. T. (N.S.) 208; Castle 
 V. Bownton, 5 C. P. D. 56; Cooper v. 
 Davis, 31 W. R. 721. 
 
 {x) See Ex parte National Mercantile 
 Bank, 15 Ch. 1). 57, per Bramwell, L.J. ; 
 and Ex parte Kationcd Ban!:, 20 W. K. 
 375, S. C, per Thesiger, L.J., C24.
 
 160 
 
 BILLS OF SALE ACTS, 
 
 In tlie cases cited below, the occupation of tlie grantor or of the 
 attestin^;^ witness has been hehl described suflficiently (//), or 
 insuUiciently (:). 
 
 Altliough one witness is sufficient for the attestation of a bill 
 of sale, yet, if several persons do attest, the description of the 
 residence and occupation of each of them must be stated in the 
 affidavit (a). 
 
 The affidavit to be made on the re-registration of a bill of sale 
 must state the residence of the grantee as stated in the bill of 
 sale, even if it was there erroneously stated (b). 
 
 A bill of sale under tlie Act of 1882 is valid although it contains 
 no description of the place where the goods are. The Act does 
 not require the place to be described in the bill of sale (c). 
 
 After-jicquiied An assignment for value of ijcrsonal chattels to be afterwards 
 prope }. acquired constitutes only a contract in equity to assign them, and 
 is absolutely inoperative at law. But so soon as the personal 
 chattels have come into existence, if they are so specifically 
 described as to be capable of Ijeing identified, the contract operates 
 in equity as an assignment of which the Court will enforce specific 
 performance {d). 
 
 The real difficulty in such cases under the Bills of Sale Acts, 
 185-i and 1878, was to ascertain whether the subject-matter of the 
 
 I'nder Act 
 
 IbTS. 
 
 ((/) McCue V. James, 19 W. Ti. 158; 
 Smith V. Cheese, 1 C. P. D. GO ; Gnnj v. 
 Jones, 14 C. B. (N.S.) 743; Sutton v. 
 Bath, 3 H. & N. 382 ; Morexi-ood v. 
 South Yorkshire Raihcay Co., 3 H. & N. 
 798; Trousdale v. Sheppard, 14 Ir. 
 C. L. 370 ; Ex pai le Youiuj, 28 W. R. 
 924; Lucldn v. Ihmhjn, 21 L. T. 
 (N.S.) 3G6 ; Briggsv. Boss, L. R. 3 Q. B. 
 268 ; lAimh v. Bruce, 45 L. J. (N.S.) Ex, 
 538 ; Gugcn v. Sampson, 4 F. & F. 974 ; 
 Grunt V. Shaic, L. R. 7 Q. B. 700; 
 Foubjer v. Tiqilor, 1 L. T. (N.S.) 57 ; 
 Be Eurl of Llmtncl, 7 Ir. .lur. (N.S.) 
 05 ; Gardner v. Smart, 1 C. & E. 14 ; 
 Ex parte Wolfe, 44 L. T. (N.S.) 321, 
 S. C. 45 L. T. (N.S.) 208; Ex parte 
 Chapman, 45 L. T. (N.S.) 208. 
 
 (,-) Dryden v. Hope, '.» W. R. 18; 
 Brodrkk v. Scale, L. R. C. 1'. 98; 
 
 Allen V. Thompson, 1 II. & N. 15 ; 
 Adams v. Graham, 9 L. T. (N.S.) GOG; 
 Beales v. Tennant, 29 L. J. (N.S.) Q. B. 
 188 ; Crosble v. Murp)hy, 8 Jr. C. L. R. 
 301; Me O'Connor, 27 L. T. 27; Be 
 Doughty, 2 Ir. R. Eq. 235; Ex jmrte 
 Jlooman, L. R. 10 Eq. 03 ; Larchin v. 
 North- Western Deposit Bank, L. R. 10 
 Ex. 04 ; Ex jiarte National Deposit Bank, 
 20 W. R. 375, S. C. 20 W. R. 624; 
 Castle V. Doicnton, 5 C. P. D. 56. 
 
 {a) Pickard v. Marriage, 1 Ex. D. 
 304; Nicholson v. Cooper, 27 L. .1. (N.S.) 
 Ex. 393. 
 
 (h) Ex parte Webster, 22 Cli. T>. 130; 
 Act 1878, 8. 11; Act 1882, s. 11. 
 
 (c) Ex parte Jlill, 17 Q. P.. J). 74. 
 
 {d) Jlolroydv. Marshall, 10 11. L. C. 
 191 ; Collycr v. Isaacs, 19 Cb. D. 342 ; 
 Joseph v. '^Lyo7is, 15 Q. B. D. 280.
 
 1878 AND 1882. ICl 
 
 assignment was defmito and spooilic, sn tliat wlicn at a future time 
 the jiroporty asRioncd came into oxistoncn it was eapal)lo of beinj,' 
 identified ; or was indefinite and vague, and therefore the assign- 
 ment was void because not capable of being specifically enforced 
 in equity. 
 
 Tims, assignments of machinery, plant, and fixtures (c), of stock- 
 in-trade which during the continuance of the security might Ite 
 brought on the ]iremises cither in addition to or in substitution 
 for that actually there at the date of the bill of sale (/), of future 
 crops on a particular farm {(j), of after-acquired personal chattels 
 upon specified premises {h), of future book debts due and owing to 
 the grantor {i), have been held to l)e sufllciently defined and valiti 
 in equity. 
 
 On the other hand, assignments of all the personal estate apd 
 effects hereafter to be in a certain farm or elsewhere in the Ignited 
 Kingdom (Z), of all future personal property to secure any sum or 
 sums in which the grantor might l)e indebted to the assignee at the 
 time he might choose to make use of the assignment (/), and of all 
 future crops to which the assignor might during the continuance of 
 the security be entitled to on any farm {m), have been held too 
 vague and indefinite to be enforced in equity. 
 
 The foregoing principles will apply to any absolute bill of sale, 
 and to any bill of sale executed before aSTovember 1, 1882. 
 
 By the Bills of Sale Act, 1882, the law relating to after-acquired Under Act 
 property under bills of sale to secure the payment of money made 
 after October 31, 1882, has been practically repealed. 
 
 By that Act such a bill of sale is void, except as against the grantor, 
 unless the personal chattels in it are specifically described in a 
 
 (e) Holroydv. 3Iarshall, 10 H. L. C. (/.) Bekhng v. Jieed, 3 H. & C. 955; 
 
 191 ; Leatliam v. Amor, 47 L. J. (N.S.) and see -CroifM v. Fryer, 4G L. T. (N.S.) 
 
 Q. B. 581. C;57. 
 
 (/) Lazarus v. Andrade, 5 C. P. D. (/) In re Count d'Epinmd, 20 Cli. I). 
 
 318 ; Colhjer v. IsaacK, 19 Cb. D. 342. 758; but see Clements v. Matthcvs, 11 
 
 (fj) Clements \. Matthews, 11 Q. B. D. Q. B. D. 808; The Oficial Ii'cccinr v. 
 
 808. TallLy, 17 Q. B. D. 88. 
 
 (h) IMlas V. Eohinson, 15 Q. B. D. 288. (w) Clements v. Malthdws, 11 Q. B. D. 
 
 (/) The Official Bcceiver v, TaiVni, 17 3C8. 
 Q. B. D. 88.
 
 1G2 BILLS OF SALE ACTS, 1878 AND 1882. 
 
 scliedule (n), and also is similarly void in respect of any personal 
 chattels specifically described in the schedule (o) of which the 
 grantor was not the true owner at the time the bill of sale was 
 executed; unless those personal chattels are either growinL; crops, 
 or fixtures, plant, or trade machinery substituted for those specifi- 
 cally described in the schedule (p). In these two cases the bill of 
 sale is valid although the personal chattels are not described in 
 the schedule and were not then the property of the grantor. 
 
 The protection of the Act, however, does not extend to additions 
 to the property specifically described in the schedule, or to fuhire 
 growing crops — that is, crops not then actually growing (q). 
 
 Bill of sale But a bill of sale within the Bills of Sale Act, 1882, though 
 
 onU- as fo°° void exccpt as against tlie grantor as to after-acquired property, 
 
 then existing -^ i^cvcrtheless Valid as to existing property specifically described 
 
 property. in the schcdule (?'). 
 
 Bill of sale by A bill of sale by a company is within the Bills of Sale Act 
 of 1878, except that if unregistered it is not thereby avoided 
 against the liquidator of the company, as he represents the 
 company and its contriljutorics as well as the creditors (s). 
 
 It has been held that an ordinary bill of sale by a company 
 is as much wdthin the mischief of the Act of 1882 as a biU of 
 sale by a private individual ; and therefore a bill of sale by a 
 company, if to secure the payment of money, must be made in 
 compliance with that Act, and duly registered under the Act of 
 1878 (0- 
 
 It is only when the security given by a company is a "deben- 
 ture " (w) within the meaning of tlie exception in section 17 of the 
 Act of 1882 that the document (if a bill of sale) comes within 
 the Act of 1878 alone (c). 
 
 (n) Section 4. As to what is a suffi- Pavement Co., 40 L. T. (N.S.) 159; in 
 
 cient description, see lioberts v. lioherts, re Cunningham, 28 Ch. D. G82. 
 
 13 Q. B. D. 794. (<) In re Cunningham, 28 Ch. D. G82. 
 
 (o) Section 5. (w) Brocldehurst v. Railaatj Printing 
 
 (p) Section 6. and FnUishing Co., W. N. (1884) 70. As 
 
 (7) Ibid. to what is a debenture, see British India 
 
 (/•) Roberts v. Roberts, 13 Q. B. D. f'Steam Navigation Co .v. Commissioners 
 
 794- Crasser and Long v. Maxwell, of Inland Revenue, 7 Q. B. D. 1G5, 
 
 W. N. (1885) 9.5, overruling Levy v. 172, 17.3. 
 
 Polaclc, 52 L. T. (N.S.) 532. ((•) Ross v. Armg and Navy Hotel Co., 
 
 («) Re 3Iorine Mansions Co., L. R. 55 L. J. (N.S.) Ch. G97. 
 
 4 E(i. GUI, GIO; In re Asphallic Wood
 
 CIIArTER VIIT. 
 
 WHO ARE ENTITLED TO TANK AS CREDITORS UNDER 1 ELIZ, C. 5. 
 
 The statute 13 Eliz. c. 5, is expressed to be to avoid convey- wiio aro 
 nnces, &c., " to delay, liinder, or defraud creditors and othrrs (w) oti.c,?-'" ""' 
 of their just aud lawful actions, suits, debts, accounts, daii)n"es, 
 penalties, forfeitures, heriots, mortuaries, and reliefs." 
 
 It is conceived that the words " creditors and others " are wide 
 enough to include any person who has a ler/al demand against the 
 settlor, so that he may rank as a creditor, although at the date of 
 the settlement he may have no legal right to enforce it. The 
 character of the claim, so long as it is a legal one, seems 
 immaterial (wiv). 
 
 This is the construction which the statute has received in 
 America, where the words " creditors and others " are not restricted 
 to such as are creditors in the strict sense of the word {x). 
 
 The enactment is clearly intended to prevent persons from Ccneral 
 conveying away the whole or any part of their property in deroga- StenS 
 tion of the rights of those who as gcnercd creditors have a claim 
 on the general assets of their debtor (y). 
 
 Mortgagees, therefore, who have a specific portion of property Not mor(- 
 set aside, and, so far as their interest is concerned, freed from ^'^°^^^' 
 liability to the general debts, and to which they can, primarily at 
 least, resort for the satisfaction of their claim, are not to be 
 regarded as " creditors," or at least a mortgage debt is not properly 
 speaking a debt for the purposes of the statute {z), for a fully 
 
 {w) Ante, p. G4. cli. i. ; Bump. Fr. Conv. (Amcr.), 2nJ ed. 
 
 [loio) Post, p. 184. 491, 492. 
 
 (a-) See 13 Eliz. c. 5, s. 2; Taylor v. {y) Georf/e\.3Iilb(n>Jce,d\e8. 190,100. 
 
 Athinson, 2 Atk. at p. GOO ; Holmes v. {z) JS'tephcns v. Olive, 2 Bro. C. C. 90 ; 
 
 Penney, 3 K. & J. 100; In re Ridler, Lush v. Willdnson, 5 Ves. 384; Free- 
 22 Ch. D. 74 ; ante, p. 04 ; post, pt. vi. man v. Pope, L. E. 5 Ch. 538 ; and see 
 
 Ex parte IIi(xtallc,2 Ch. D. 54. 
 M 2
 
 1G4 
 
 WHO ARE CBEDITORS 
 
 L'nless for 
 surplus. 
 
 Mortgagee 
 
 lelincjuishing 
 
 security. 
 
 Barrncl: v. 
 McCuUoch: 
 husband 
 creditor of a 
 person to 
 whom his wife 
 had given 
 money to 
 invest for Ler. 
 
 secured debt is generally excluded from an eslimaiL' of liaV»ilities. 
 There seems at one time to have been some uncertainty on the 
 point, and some confusion as to whether mortgagees were to be 
 looked upon as creditors under this statute, or as purchasers under 
 '11 Eliz. c. 4 {a) ; but it has been decided tliat they are purchasers 
 under the later statute (h). If the property mortgaged is not 
 sufficient to satisfy the debt, tlie mortgagee of course will be a 
 creditor for the balance (c). 
 
 And a mortgagee may, by relinquishing tlie security of his 
 mortgage, become entitled to sue as a creditor ; so that where a 
 plaintiff who had an equitable mortgage sued in tlie double 
 character of purchaser and creditor, although the deed was held 
 void against him as a purchaser {d), it was held (on a cpiestion of 
 costs) that he had a right to sustain the suit as a creditor (c). 
 
 In Barrach v. McCuUoch (/), the plaintiff was held to bo a 
 creditor under the following circumstances : — M. was a friend of 
 the plaintiff and liis wife ; the w^ife had, witliout her husband's 
 knowledge, from time to time given ]\I. money to invest for her 
 benefit. This money she took partly out of tlie profits of her 
 husband's business, and partly, during a time when tlie business 
 was being carried on 1iy trustees for the benefit of her husband's 
 creditors, out of moneys allowed to her from time to time by such 
 trustees. M. furnished an account of investments wliicli he 
 represented he had made with the moneys so given to him, but it 
 was found on his death that such investments were not then in 
 existence, if they had ever been made ; and the plaintiff now 
 claimed against ]\I.'s estate the moneys so given to him, and 
 interest thereon. It was held by Lord Hatherley (then Sir W. 
 r. Wood, V.C.) that ihc husliand, the plaiiitilf, was entitled to .sue 
 
 (fl) See 1 Eq. C. Ab. 148, pi. 1, where 
 the case of Dollu v. Coltman, 1 Vern. 
 294 (in which an agreement was set aside 
 as fraudulent against subsequent mort- 
 gagees), is put under the heading of 
 " What conveyance or disposition shall 
 be fraudulent as to creditors," and the 115 
 Eliz. c. 5, is cited in the margin ; and sec 
 Naylor v. JiaUhrin, 1 Rep. Ch. G9 ; 
 Girling v. Lov-tker, 2 Ifep. Ch. 1^0; 
 post, pp. 208 et seq. 
 
 (b) Lister V. Turner, 5 Ilarc, 281 ; 
 Dolphin V. Ai/hcard, L. R. 4 H. L. 480. 
 
 {<■) Harman v. liichards, 10 llare, 81 ; 
 and see Doe v. Kiiitjht, 'j B. & C. (J71, 
 09.0. 
 
 {(l) See Doe v. Knight, o P.. & C. G71, 
 C95; and Edcv. Knowks, 2 Y. & C. Ch. 
 172. 
 
 (e) Liftler v. Turner, 5 Ilaro, 281. 
 
 (/) 3 K. &.T. 110.
 
 WITHIN 13 ELIZ. C. 5. 1G5 
 
 as a creditor of the estate of 'M., to set aside iuvestinents of stock 
 made hy liiin in his lifetime in the names of trustees for the 
 benclit of his daughters. 
 
 Tn Rider v. Kidder (/y) a liuslmiid on liis iiiaiiiai^e covcuiiiitcil Wife creditor 
 
 (.1 1 ■ 1 • • I I T "" llUHbiUlirH 
 
 Willi tlie trustees or the scttleiiicnt, m caso Ins mtcndcd wile covenant witli 
 should survive him, within twelve months next after liis decease '"'''' ^'■"8''-'*-"-'*- 
 to pay her £3000, with interest at 4 per cent, per annum, for her 
 own use, and in case there should he any issue, to pay to the 
 trustees within the time aforesaid £2000, with tlie same interest, 
 upon trust for the henefit of the wife and children ; and Lord 
 Eldon was of opinion that under this covenant the wife was a 
 creditor of tlie husband's estate after his death, as against a 
 fraudulent conveyance made by him (//). 
 
 In Lcivlciier v. Frcemetn {i) a curious distinction was taken Debts founded 
 
 , 111. A I'i. - 1 "1 nialclicio. 
 
 between debts founded m malehcio and real debts. Atter the 
 plaintiff had brought his action against M. for lying with his 
 wife, M. made a conveyance of his land to trustees for the 
 payment of certain scheduled delits and such other debts as he 
 should appoint. The plaintiff recovered £5000 tlamages against 
 M. and brought his bill to Ije relieved against tlie deed as frau- 
 dulent against him and made to defeat him of his debt. Per 
 Civrieuii : " This deed is not fraudulent, either in law or equity, 
 for such debts as are named in the deed ; for the plaintiff was no 
 creditor at the making of the deed ; and though it were made 
 with an intent to prefer his real creditors to this debt, when it 
 afterv/ards came to be a debt, yet it was a debt fouiuUd in 
 malcficio, and therefore it was conscientious in him to prefer the 
 other debts before it." But the plaintiff was allowed to liave an 
 interest in the surplus after the other debts were paid (k). 
 
 A creditor of an ancestor of the author of a voluntary settle- ^^^"^'j^'"^^^^^^^^^^^ 
 ment is a creditor of the heir to whom lands have descended from tbc bcii's 
 that ancestor. So where a man to whom lands had descended conveyuuce. 
 as the heir of his father made a voluntary settlement of them, it 
 
 {</) lOVes. 3G0; Ex parte liohinson, (/) 1 Eq. C. Ab. 140. Sec S. C. 
 
 1 Moll. 291. Tree. Ch. 105, and Frccni. Cli. '2,ie,. 
 
 (/() 10 Ves. 369. (/^ ^cc FickstocJc v. Luster, 3 M. & S. 
 
 371 ; ante, pp. 1U5 ct scq.
 
 1^)6 WHO ARE CREDITORS 
 
 was held void as against liis father's creditors ; and the Court 
 agreed " that the conveyance of the heir shall he fraudulent as a 
 conveyance by the father, who is the principal debtor " (/). In 
 GoocJis Case {m) the plaintiff brought his action in the Court of 
 King's Bench against the defendant, as heir to his father, in debt 
 on a bond made by the father, in which he liound liiuiself and 
 his heirs ; to the plea of riens per descent the plaiiititl" proved 
 that the father died seised of certain lands which had descended 
 to the defendant as his heir ; in answer to which the defendant 
 gave in evidence a feoffment in fee made liy him before this 
 action. Plaintiffs counsel alleged and proved that this was made 
 by fraud and covin to defeat the then action. But it was strongly 
 urged and insisted on, that it ought to have been pleaded, and 
 could not on this issue (of riens per descent the day of the writ 
 purchased) be given in evidence. The Court, however, declared 
 that the plaintiff, who was a stranger to it, could not be driven to 
 jilead the feoffment, of which he had no knowledge, but might 
 give it in evidence (n), and that the statute was to be favourably 
 interpreted for the suppression of fraud. 
 Or that of go a voluntary conveyance by a devisee is void acjainst the 
 
 devisee. j j j o 
 
 creditors of the testator (o). 
 But not bis But (in the absence of special circumstances) land is not liable 
 
 conveyauee for , , . „ , . , , , . 
 
 value. to tlie debts oi the ancestor after it has been alienated by his 
 
 heir or devisee for the purposes of a marriage settlement (j)). 
 Or by an A voluntary conveyance by an executor or administrator is 
 
 executor or . 
 
 administrator, void as against the creditors of the testator or intestate (q). 
 Surety is a _ A Surety to whom a counter bond has been given to indemnify 
 
 creditor on his , . , . • i . i i i p i • . . , . 
 
 bond for fiiui, having paid the debt for his principal, is a creditor of iiis 
 
 in emnity principal {)'), and, in equity, though he had no counter bond (.s). 
 
 (/) Gooch's Case, 5 Rep. 00 a ; Apliurnj (p) Mathms v. Jones, 2 Anstr. 50(5 ; 
 
 V. Bodinrjlium, 1 Cro. Eiiz. 350; liicliurd- likhardson v. Ilorton, 7 Beav. 112, 124, 
 
 ao?iv.//cyWoH,7Beav.ll2; Shep. Touch. GG. post, p. 333. 
 
 {m) 5 Rep. 60 a. {q) Doe v. Fallows, 2 Tyr. 400. 
 
 (n) Sec Kidney v. Coussmalcer, 12 (>•) See Oshorn v. Churchman, do. 
 
 Ves. 130, 155, as to the difference be- Jac. 127, which, however, only decided 
 
 twecn cases where a bill in Chancery is him to be a creditor within the 13 Eliz. 
 
 filed expressly to set aside a Rcttlcnicnt, c. 7 (Bankruptcy). See also Head v. 
 
 and where the settlement first comes out Foltcr, Cro. Jac. 140 ; Worski/ v. Ue- 
 
 in the answer; and post, pt. vi. cb. i. mattos, 1 Burr. 407, 474, 482. 
 
 (o) (Jooch's Case, 5 llcp. 00 ; Apharrj {s) Ford v. Stobridge, Kcls. 24. 
 V. Bodinrjham, ] Cro. Eliz. 350.
 
 WITHIN 13 ELIZ. C. 5. • 1G< 
 
 A wife in whoso favour so([UL'sii'alioii was issued 1iy the Wifo Bcqucs. 
 
 -r-i 1 . • 1 /-( • -PI- 111 -11 tratiiig is a 
 
 Ecclesiastical Court in a suit tor divorce was held entitled to set crediiur. 
 aside a settlement by her husliaiid uiuh'r this Act (/). 
 
 iVlthougli as against creditors a voluntary bond w ill not pre- Creditors 
 vail (if), a creditor under a voluntary covenant (r) or Ijond (?/;), vohmtary 
 although post obit (.v), is as much entitled t(j the benefit of the '"^''^nicuts. 
 statute, even in equity, as any other creditor (y). In Adamcs 
 V. Hallctt (z) a man by voluntary post obit bond secured to Ids 
 daughter-in-law an annuity for lier life, and afterwards made 
 a voluntary settlement comprising nearly all his property. It 
 was held that she, as a creditor under the bond, was entitled 
 to set aside the settlement. Sir G. M. Giffard, V.C., said that " if 
 the bond had been for \alue the only objection would have 
 been that it was post obit;" l)ut that made no difference, 
 because the settlor, by making the settlement, abstracted from his 
 property that which was absolutely essential to satisfy the bond, 
 and that it mattered not how long afterwards the Ijond became 
 due ; and that the bond being voluntary made no difference, for 
 in considering the statute in a suit of this description you look 
 at what the legal rights of the parties are {a), and as the creditor 
 under this bond would have been a perfectly good creditor at law 
 and was constituted a creditor by an act inter ^•ivos, there was no 
 reason why he should not be so in equity. 
 
 In this case, it will be observed, the necessary effect of the 
 settlement was to prevent the settlor from leaving at his death 
 sufficient assets for satisfaction of the voluntary bond, and in the 
 event the actual effect of the settlement was to prevent that 
 payment ; but where there are no facts from which it can be 
 
 (0 Blenlcinsopp v. rAenllnsopp, 1 De (?") Leclimere v. Earl of Carlisle, 3 
 
 G. M. & G. 495. P. Wms. 222 ; Payne v. Mortimer, 1 
 
 ((() Faireheard v. Bowers, Free. Cli. Giff. 118. 
 17, 2 Vern. 202 ; Ex parte Spurrier, (.») See, as to post obit bond, Jiamsdcn 
 
 Mont. 24(5 ; Goldicutt v. Townsend, 28 v. Jackson, 1 Atk. 292. 
 Beav. 445 ; Lomas v. Wright, 2 My. & K. {>j) Marhull v. Marhrell, 34 Beav. 
 
 769 ; and see Hunt v. Muunsdl, 1 Dow, 12 ; Williamson v. Codrington, 1 Ves. 
 
 211. 511, 514; Cox v. Barnard, 8 Hare, 
 
 (r) Fktclicr V. Fletcher, 4 Hare, G7 ; 310. 
 Alexander v. Brame, 19 Beav. 436, S. C. (~) L. II. 6 Eq. 408. 
 
 7 De G. M.&G. 525; Lomas \. Wright, («) See Hervei/ v. Audland, 14 Sim. 
 
 2 My. & K. 769. 531 ; Beard v. Xidthall, 1 Ycrn. 427.
 
 1G8 WHO ARE CREDITORS 
 
 reasonably inferred that the testator knew or helieved, or liad just 
 reason to believe, tliat his assets, after deducting tlie projierty 
 settled, would not be sufficient to pay a post obit bond in addition 
 to debts contracted for value, the settlement will stand (h). In 
 such cases of volunteers on both sides, the burden of proving that 
 the deed was executed witli a view to defraud creditors falls on 
 the person claiming under the Ixjnd (r) ; but it is only when the 
 voluntary debt is actually created that the volunteer becomes a 
 creditor. 
 
 If during the proceedings the creditor becomes a debtor to the 
 settlor on a balance of account, the proceedings cannot be main- 
 tained (</). 
 
 Pronii.sKcc of And it appears that a person to whom, or io a trustee for wliom, 
 
 vuluiitary 
 
 Hole. a voluntary promissory note, or in fact any instrument creating a 
 
 legal debt (e), has been given is in the same position as the 
 holder of a voluntary bond (,/'). 
 
 Voluntary It scems that formerly the voluntary assignee of a debt was not 
 
 assignee of a t p • p , . . 
 
 debt. a creditor; for an assignment or a cliose in action conveyed no 
 
 legal right, and operated in cfpiity as a mere agreement, which, 
 if voluntary, could not be enforced by the assignee, and lie there- 
 fore, not Iiaviiig an enforcealdc right, was not a creditor {(j). 
 Now, however, under tlie Judicature Act, lb7o, an aljsolute 
 assignment in writing under tlie hand of the assignor of any del it, 
 subject to giving notice of it in writing to tlie deljtor, transfers 
 the legal right to such debt, and it is conceived that a voluntary 
 assignee of a de1jL wcjuld lie deemed a creditor (Ii). 
 
 So in America, whoever may become tlie owner of the debt 
 can enforce it, since the right to avoid the transfer is not merely 
 personal (i). 
 
 (h) Ante, pp. .38,42, .50, (/) JJurJdtl v. Hansom, 2 Coll. 80.5; 
 
 (c) Per JiOrd IJoinilly, in Denuifj v. jMtirnon v. Keartoy, ?i Hm. & (iiff. 186; 
 Ware,22 lieav. 18.5, IH'.). Tliat a voluii- JAoyd v. Chunc, 2 Giff. 441. 
 
 tary covenant may bo made the founda- (g) /Scwell v. Moxsij, 2 Sim. (N.S.) 
 
 tion of a creditor's Buit in equity, sec 189. 
 
 Watson V. Parker, G I»eav. 283. (//) Section 2.5 (C) ; poKl, pt. v. cb. ii. 
 
 (d) White V. Witt, 24 W. 1{. 727. (/) Sec Bump. Fr. Conv. (Amer.), 2nd 
 
 (e) Sec Williamson v, Codrinyton, 1 cd. 495. 
 Vcs. 511,514.
 
 WITHIN 13 ELIZ. c. 5. 1G9 
 
 But to U}),sct ;i transiictiou for value as fraudulent against ruii not as 
 creditors the creditor inipeacliing must lie for value (/,). against value. 
 
 It is expressly mentioned in the preandile that " ercditors and Forfc-itureK on 
 others " are to be protected with respect to " forfeitures," and, as lawry,' &c." 
 might be expected, the statute has been liberally expounded to 
 guard the rights of the Crown in this respect; for forfeitures are Jii-iiis uliliu 
 to be considered as debts witliin the statute. Thus in I'luinrrfoii^^^''''^^' 
 V. Blimt, cited in Twync's Case (l), it was resolved that the 
 statute extended to a case where " P. being indicted for recusancy, 
 for not coming to divine service, and having an intent to ilec 
 beyond sea, and to defeat the (j)ueen of all that niiglit accrue to 
 her for his recusancy or flight, made a gift of all liis leases aiul 
 goods of great value, coloured with feigned consideration, and 
 afterwards fled beyond sea, and afterwards was outlawed on the 
 same indictment."' For " Ihis Act doth not extend only to 
 creditors, l)ut to all others who had cause of action or suit, or any 
 penalty or forfeiture," &c. And it was resolved that " this M'ord 
 'forfeiture' should mjt be intended only of a forfeiture of an 
 obligation, recognizance, or such like (as it was objected by some 
 that it should, in res[)ect that it comes after damage and ])enahy), 
 but also to everything which shall by law l)e forfeited to tiie 
 King or subject. And therefore if a man, to prevent a forfeiture 
 for felony or by outlawry, makes a gift of all his goods and 
 afterwards is attainted or outlawed, these jjoods are forfeited 
 notwithstanding this gift. The same law of recusants; and so 
 this statute is expounded beneficially to suppress fraud " {in). 
 The case of Bex v. Nottiiujliam (n), and /S'/> Walter Raughlm Cane 
 there cited, differ from this in tliat the conveyances were lu^ld 
 void though it did not appear that there was any express intention 
 of avoiding forfeiture. Tn the former case, however, there was a 
 power of revocation. 
 
 In iShain V. Bran {o) it was said that a ileed of sale executed 
 by a man on the eve of his trial for a capital offence, of whicli he 
 was afterwards convicted, could not be su})])orted \\iLliout ])roof of 
 
 (A-) Sanders v. , Holt, .'i-i?. (m) Seo also Ifo. Ab. pi. '.', p. ol 
 
 (l) 3 Eep. 82 II. Sec "also Jjenl/nd'>i (ti) Lane, IJ. 
 
 Case, cited in fSagUan/ v. Hide, 2 Vcrn. (»;) I Stark. ,'>1!». 
 •11 ; and oilier cases, ante, pp. 71 ot Hcq.
 
 place. 
 
 170 WUO AKE CREDITOKS 
 
 the consideration, although if bona fide and for a good considera- 
 tion it would prevail (p), but not if voluntary (q). 
 
 Sales for value In one case (p), the deed being held to be on valuable con- 
 
 sideration, Lord Loughborough decided in favour of its validity 
 
 without going into the question whetlier tlie statute applies to the 
 
 King. But it seems that a valualjle consideration is not always 
 
 If bona fide enough; there must be also bona fides on the part of the 
 
 actuaUouvic- piii'chascr ()'), and the alienation must be effected before actual 
 
 tion. conviction ; but where the record of conviction stated that the 
 
 prisoner was convicted at the assizes holden on the 19th day 
 
 of the month, but he had assigned his cfoods bona fide and for 
 
 value on the 2(>th, and was actiudlij convicted on the 21th, the 
 
 assignment was held good (s). 
 
 rrowu stands "Where a settlement void against his creditors has been made 
 by a person who is afterwards outlawed, if the settlement was not 
 made for the purpose of defeating the rights of the Crown under 
 the outlawry, or under such circumstances as to induce the pre- 
 sumption of such a purpose, the Crown will ]iot be a creditor of 
 the outlaw, but will take only that to which the outlaw himself 
 was entitled at the date of the outlawry (;'). 
 
 Eepresen- Xhe representatives of creditors are considered as creditors 
 
 tativcs of 
 
 creditors arc within the statute. 
 
 creditors. 
 
 Assignees and An assignee, therefore {n), or trustee {v) of an insolvent or 
 banVrupt"y H'luidating debtor or bankrupt, although in right of the debtor he 
 ^^- only takes such interest as the debtor was beneficially entitled to, 
 
 yet represents the creditors also for all purposes, and if any 
 fraud against creditors exists in a transaction to which the 
 insolvent or liquidating debtor or Ijankrupt was a party the 
 assignee or trustee may take advantage of it. A deed which is 
 void as against creditors is void also as against those who 
 represent creditors (?r). So Lord Louglil)orougli said in Anderson 
 
 (p) KliKj V. JJreuicii, 2 Bro. C C. (m) 1 Geo. 4, c. 110, s^. 7; Ware v, 
 
 93, n. ; Allibon v. AUonuij- General, Gardner, L. 11. 7 Eq. 317. 
 
 Colles, P. C. 393. (/•) 32 & 33 Vict. c. 71, ss. 14 et seq., 
 
 ('/) See ante, pp. 71 ct seq. and 40 & 47 Vict. c. 52, ss. .OO, 57. 
 
 (/•) HcG Perkins \. Bradley,! }li\re,2l0. (") Per Parke, li., in J)oe i]. Grimshi/ 
 
 («) WkUakcrx. Winbe;/, 12 ('. P. 44. v. JJall, 11 M. & W. 531, 533; see also 
 
 (<) GoldnmUh V. liUSseU, 5 De G. M. & JJutcIier v. Harrison, 4 P. & Ad, 120, 
 
 G. 547, 555. 1 Mcv. & M. 077 ; Bims v. 'T/iomas, 12
 
 WITHIN 13 ELIZ. C. 5. 17i 
 
 V. Mcdthij (.c), "Assignees liave all tlic e(iuily the crcditov.s Iiave, 
 and may impeach transactions which tlie liaiil^niiii liimsell' would 
 he stopped from impeaching;" in fact, assignees have frequently 
 heen allowed as creditors under the statute without question (y). 
 
 On this principle it has been held that a sheriff, bailil'f of a ShcrilTor 
 county court, or other officer executing a process against a debtor executing 
 in right of a creditor, may treat a fraudulent deed as void, and [.""(lUor u''a 
 seize notwithstanding (-j). In Lovich v. Crowdcr (a) Lord Tenterden creditor, 
 said : " Now, if a party be in possession of goods, apparently the Fratvlnleut 
 property of a debtor, the sheriff, who has a fi. fa. to execute, is 
 bound to inquire whether the party in possession is so bona fide, 
 and if he iind the possession is held under a frauduhmt bill of sale 
 he is bound to treat it as null and void, and levy under the writ." 
 
 As to cases in which axcntioa has been obtained fraudulently Slu-iiiT seizing 
 to protect the property from subsequent seizure, the question jgyj execution, 
 whether the sheriff could, nevertheless, take the goods and sell 
 them under a later writ, is one on which, although many even of 
 the later cases have decided that he may do so, there has been 
 more diversity of opinion (h). 
 
 It has been argued that the first deed or judgment, even if Framlul.nt 
 
 '^ , •11 jud,?niciil 
 
 fraudulent, is good between tne parties themselves and between good a.u'ainst 
 either of the parties and a stranger, other than a creditor; that the ^ '■*"='="'■ 
 sheriff or other officer is a stramjer unless he can prove that he ShcrifTniust 
 seized (under the second execution) by legal authority on behalf of acMnVibra 
 a creditor (c). This question was first raised in Za/jc v. Billcrs (d), ^'■<^'-''^"'' 
 and it was there decided that "as it was an action of trespass 
 
 AJ. & E. 53G; Holmes v. Pcnnctj, 3 K. .approved in Jinnnj v. JIcKjnai/, 11 "SI. Sc 
 
 & J. 90-102 ; S'ted v. Broioii, 1 Taunt. W. 267-8 ; Gale v. Williamson, 8 M. & 
 
 381; Kent v. Biley, L. E. 14 Eq. 190; W. 405; Buchial v. Bolston, Prec. Ch. 
 
 Ej: parte Russell, 19 Ch. D. 588; Ex 287; White v. Morris, 11 ('. B. 1015; 
 
 parte Chaplin, 26 Ch. D. 319 ; post, pt. Scarfe v. Hallifax, 7 M. & W. 288 ; ami 
 
 vi. ch. i. see JJe Medina v. Grove, 10 Q. B. 152. 
 
 (.y.) 2 Yes. Jun. 244, 255; Murlin v. («) 8 \^. & C. 132, 135; Paget v. Per- 
 
 Pewtress, 4 Burr. 2477. thard, 1 Esp. 205. 
 
 (*/) Acraman v. Corhett, 1 J. & 11. {h) See West \. Ship, 1 Yes. 239, 245 ; 
 
 410; Ex parte Pohinson, 1 Moll. 291; post, p. 174. 
 
 Turleton v. Liddell, 17 Q. B. 390, 397-9; (c) Martin v. Podfjer, 2 W. B.I. 701 
 
 Goodricl-e v. Taijlor, 2 1). J. & S. 135 ; Tarvil v. Tijiper, Latcli, 222 ; Pesscy v. 
 
 and see ExjJarte Putters, 14 Ch. D., per Windham, 6 Q. B. 166; HTkVc v. Morrii, 
 
 Jame.s, L.J., 267. 11 <'• 13. 1015. 
 
 (r) D^-er, 295 a (vol. 3) ; quoted and ('/) 1 Ld. llajra. 733.
 
 172 WHO AKE CREDITORS 
 
 b}' a tliird party (for whom a prior fraudulent execu on had issued) 
 by copy of tlio defendant, though sheriff, ought to give in evidence a copy of 
 jiicgmen . tJio judgment. But it woukl have been otherwise if the trespass 
 had been brought by tlie person against whom the fi. fa. issued." 
 This w\as followed and appro\'ed in Martin v. Podyer (c) and other 
 cases (/); but tins state of the law was disturbed by the case of 
 JBessc;/y. Bcsscy V. Windham ((/), in which it was decided that the mere 
 recital of the writ of ii. fa. in the warrant was sufticient evidence 
 of the sheriff's authority. The warrant in that case was put in by 
 the plaintiffs as evidence against the sheriff' (the defendant) in 
 order to connect him with the act of trespass ; and, no doubt, 
 against the sheriff' the recital was proof of the seizure. So in Goss 
 V. Quinton (h) (on which the decision in Jjessei/ v. Windham {g) was 
 partly founded) an agreement, of which the defendant required 
 proof, had come out in an examination of him in bankruptcy ; this 
 examination i\\Q 2^l(tintiffs put in in order to prove another point 
 against the defendant, on which it was held that the agreement 
 formed part of the examination, and that, if any part of the exami- 
 nation were read, the whole of such examination must be considered 
 as being in evidence. 
 
 So also in JIa//ncs v. Ilaytoii (i), the other case relied on in 
 Bcssei/ v. Windham (k), a letter which was put in by the plaintiff' 
 against the sheriff" contained proof of his authority. All that Lord 
 Tenterden said was (reading the letter) : " You are to make this 
 evidence against the sheriff; and yet not give him credit for an 
 assertion there made which is in his favour. This seems to me to 
 be the hardest measure possible." But this is evidently a very 
 different affair from allowing the sheriff' to prove his authority as 
 against tliird parties by his own warrant reciting the writ, more 
 especially as the cases cjuoted aljove shew that the production of 
 Wkitev. the writ itself is not enough. By the case of White v. 3Iorris (/), 
 Ilorris. ti^e Ij^^y ^^-j^s brought Ijack to its former state. There the Court of 
 
 Common I'leas (vi) unanimously overruled the decision in Bcssc?/ v. 
 
 (c) 2 W. Bl. 701. (/) r, L. J. (0.8.) K. B. 231. 
 
 (/) Glavev. Wentiijorth,C)Q. D. 17;),n.; {k) G Q. B. 1G6, 172. 
 
 Ofjdcn V. Jhslccth, 2 C. & K. 772, ct (?) 11 C. B. 1015. 
 
 i"*'''a- ("0 .lervis, C.J., and Maulc, Crcsswell, 
 
 {<)) 6 Q. B. IGO. and Williams, J J. 
 
 ijt) 3 Man. & G. 825, 820.
 
 WITHIN 13 ELIZ. c. 5. 173 
 
 Windham {n). Jervis, C.J., there said : " It is an cstablislicd rule 
 of law, never doubted until the case of Bcsscy v, Windham (w), that 
 the mere production of the writ, and nothinj,^ more, will not enable 
 the sheriff to shew that a deed, good against all except creditors, is 
 fraudulent and void. He must shew that he represents a creditor. 
 For this purpose the bare production of the writ is not enough. 
 The writ merely authorizes and directs the sheriff to do a certain 
 act, and his indorsement or return thereon is a mere statement 
 that he has done as he was directed. There is no statement that a 
 judgment exists, but only that somebody says that a judgment has 
 been obtained " (o). 
 
 In Ogden v. Hcshcth (p) the sheriff of the County Palatine of 
 Lancaster was sued for wrongful seizure and sale, and defended 
 himself on the ground that the assignment by which the plaintiff 
 claimed was void against creditors. Although the proof of the 
 warrant was not allowed to be enough, yet the mandate from the 
 Chancellor of the Duchy to the sheriff" having been put in, it was 
 held til at as in the County Palatine the writ was sent to the 
 Chancellor and not to the sheriff, who in fact never saw the writ, 
 but acted entirely by virtue of the Chancellor's mandate, the Chancellor's 
 production of the mandate was a sufficient proof of the authority 
 of the sheriff, although it contained no recital of the writ of fi. fa. 
 P)Ut if the writ is not sufficient in ordinary cases, it is hard to see 
 how the Chancellor's mandate can be sufficient proof to connect the 
 sheriff with the creditor or creditors, against whom alone the 
 fraudulent assignment was void. 
 
 But this case was decided before the law on the subject had 
 been again established by Wldfr v. Morrk (q) and the otlier cases 
 mentioned above, and it therefore may be regarded as clear that AVi-it of oxecu- 
 where a sheriff justifies a seizure made by him as against third juagment 
 persons — any person except the debtor himself — he must produce "rofed.^ 
 hoth the writ of execution and the judgment ; and ho cannot be 
 
 («) 6 Q. B. 166. tlie judgment, so that the principle is the 
 
 (o) In ordinary cases, apart from the same : Cotes v. MicliW, 3 Lev. 20 ; 
 
 statute of Elizabeth, it is enough to shew Moravia v. Shper, Willes, 30, 34 ; 
 
 the writ only and not the judgment in Andivus v. Marris, 1 Q. B. 3, 17. 
 
 justifying under a writ of execution ; but Qj) 2 C. & K. 772. 
 
 the party liimself even then must prove (q) 11 C. B. 1015.
 
 174 WHO ARE CREDITORS 
 
 relieved from offeiiEg such proof by nny recital in the warrant 
 which his opponent may put iu evidence as proof of the seizure (r). 
 
 Endence as to Questions have arisen as to whether, in an action against the 
 
 fraud in ac- i -no o . ■• . . 
 
 tions by per- sherill tor not executing a writ in spite of a previous seizure alleged 
 in? pHorTuclg- ^^ ^^ fraudulent, evidence of the fraud is admissible. 
 
 nients and 
 
 executions. Ihore are some cases in which the first execution alone has been 
 
 impeached, and others iu which it has been necessary to impugn 
 the bona fides both of the execution and the judgment on which it 
 was founded. 
 
 rrior execji- As to the first class of cases, Lord Hardwicke said, in West v. 
 
 tion alone im- m ■ / \ ^ •p 
 
 peached. '>/''i^ (s), that " it a creditor, by fi. fa., seize the goods of the debtor, 
 
 and suffer them to remain long in the debtor's hands, and another 
 creditor obtains a subsequent judgment and execution, it has been 
 determined often that it is evidence of fraud in the first creditor, 
 and the goods in the hands of the debtor remain liable." But in 
 Bradley v. Wyndherm (t), where no actual possession was given 
 under the first execution, it was left to a jury to say whether it was 
 fraudulent or no. 
 
 Evidence of The question whether evidence that not only the prior execution 
 
 execution fl?!(Z 1,1 ji -7 , n i ^ , ■ , .^ ■, . -r^ 
 
 .iudgment but also i\\Q judymcnt was traudulent against the plamtifi— a cre- 
 Lnt""? Ja^c"?on ^^^^"^ Seeking to enforce a subsequent execution — could be admitted, 
 by person im- -^yas for Sometime left undecided. In Weirmull v. Younn (u) the 
 
 peachinj; a . . «/ \ / 
 
 prior judg- plaintiff brought his action agaiust the sheriff for not executing 
 his writ of fi. fa. His defence was that he had previously levied 
 at the suit of K., and the answer to that defence was that Iv.'s 
 judgment was fraudulent. Lord Tenterden received the evidence 
 on tlie authority of a decision of Lord Ivenyon's (r), which, 
 however, turns out not to be conclusive, as the sheriff was there 
 indemnified by the creditor, and the action, moreover, was by the 
 first creditor, who had obtained judgment and execution. 
 
 In Barter v. Mitchell (w) it was said that the question whether 
 the judgment first obtained was fraudulent or not could not be 
 
 (r) 1 Tayl. 20, Sth ed. G4G. (0 1 Wils. 44; and see Day v. Wal- 
 ls) 1 Yes. 239, 245, ciled and followed dock, 1 Uowl. 523. 
 
 in Lovick v. Cromler, 8 B. & C. lOG: (m) 5 B. & Cr. GGO. 
 
 and see Smallcomh v. BnchiiKjliam, 1 (r) Kempland v. 3facciulai/, 4 T. B. 
 
 Salk. 320, and (as Smallcomh v. Cross) 436. 
 
 1 Ld. Bayra. 251. (iv) 2 Dowl. P. C. 574. 
 
 luent.
 
 WITHIN 13 ELIZ, C. 5. 
 
 raised in an action against the sheriff; for tliat pnrposo an issue 
 must be directed ; but that the (juestion whetlier the first execution 
 was fraudulent irith the ^lierifa hwwlcdfjc, might be raised in an 
 action against liim. Ikit in TiiJcr v. Dnkc of Leah (x) Lord 
 Ellenborougli seems to have tliouglit evidence admissible to impoach 
 the judgment on which the action for a false return was founded. 
 In a case (v/) of an action against the sheriff by a judgment 
 creditor for falsely returning nulla bona to a writ of tlic plaintifl, 
 in which tlio sheriff, ])cing indenniilied, liad sold tlie goods under a 
 writ subsequent in date to the plaintiff's, the declaration alleged 
 that the sheriff took in execution goods of the debtor of the value 
 indorsed on the plaintiff's writ, and levied the same thereout. To 
 tliis the sheriff pleaded that he did not levy the moneys as therein 
 alleged, nor any part thereof, modo ct forma. 
 
 Evidence that the plaintiff's judgment was obtained l)y fraud 
 and collusion with the debtor was objected to. It was held that 
 the words in the declaration, "and then levied tlie same thereout," 
 must mean that the sheriff had in his hands the proceeds of the 
 sale for the imrposc of handing over to the plaintiff (z) ; that is, 
 that the proceeds of the sale were applicable to the payment of the 
 plaintiff's debt. Unless he had the money for that 'purpose no 
 breach of duty was shewn by their not paying over the money, 
 and in order to shew that the money so received was not 
 applicable to that purpose it was open to the sheriff to produce 
 evidence that the plaintiff's judgment was fraudulent ; and the 
 return of nulla bona means, no goods to satisfy plaintiff's claim. 
 
 These questions were fully discussed in Imray v. Mafjnay {((), Imrmi v. 
 which was an action brought by a judgment creditor against the " 
 sheriff of ]\Iiddlesex for neglecting to levy, and returning nulla 
 bona. The defence was founded on a previous seizure under a 
 former judgment ; and to evidence which was offered to shew that 
 the former judgment and execution were fraudulent and void, it 
 was objected that, in an action against the sheriff, evidence was 
 not admissible of fraud, either in the judgment or in the execution. 
 
 (.r) 2 Stark. 218; see also Gala v. («) 11 M. & W. 207, followed as to this 
 
 Williamson, 8 M. & W. 405. point (the admission of evidence of fraud) 
 
 (u) Shattoch V. Cunlen, G Ex. 725, by llemmett v. Lawrence, 15 Q. B. 1004, 
 
 728. 1007 ; and by Christojilicrson v. Burton, 
 
 (z) Drewe v. Lainson, 11 A. & E. 529. 3 Ex. 160. 
 
 /
 
 17G 
 
 WHO AKE CREDITORS 
 
 At the trial the evidence was admitted and tlie point reserved. 
 EyiJcnce ad- Tlie Court decided the evidence was admissible Itotli as to the 
 judgment and the execution, and this mu?t lie taken to be the 
 present law on the subject. 
 
 E\-i(lence of It is clear, though, that in an action by tlie creditor under the 
 
 fraud in action ^ , • ^ . ■, , . . ,,.f^» 
 
 by person ^'"^^ judgment and execution agamst the sheriff for trespass in 
 menric'^is ^'^'^^'J^o scizcd uudcr a subsequent process, evidence as to the fraud 
 impeached. or bona fides of the first transaction is admissible (h). 
 
 Sheriflf bound 
 to seize and 
 sell. 
 
 although he 
 has sold alter 
 Botice. 
 
 Tliis doctrine 
 questioned. 
 
 In these cases the sheriff not only may, but is bound to, seize 
 and sell tlie goods in spite of the fraudulent process. 
 
 " It is settled by the case of Imray v. Marpiay " (c), said Parke, 
 B., in delivering the judgment of the Court of Exchequer in 
 Cliristophrrson v. Burton (d), "that where goods seized under a 
 writ of fi. fa., founded on a judgment fraudulent against creditors, 
 remain in the sheriffs hands, or are capable of being seized by him, 
 he is com]idlaUc to sell, or seize and sell, such goods under a sub- 
 sequent WTit founded on a bona fide debt (c) ; and if he neglect 
 to do so, having notice of the fraud at the time that he ought to have 
 executed the writ, or if he could then Lave discovered it by 
 reasonable inquiries, he is responsible for neglecting to seize and 
 sell them ; and that it was not necessary, in order to render the 
 judgment void quoad the sheriff on the ground of fraud, that he 
 himself should have been a party to it. The only difference 
 between that case and the present is, that here the sheriff himself 
 had assigned the goods seized under the prior execution to a sup- 
 posed bona fide purchaser innocently and in ignorance of the fraud, 
 and that he ought not to invalidate his own grant. In other 
 respects the cases are the same. Here there was sufficient notice 
 of the fraud to the sheriff to oblige him to inquire into the ques- 
 tion of fraud at his peril ; and, there being an admitted fraud, the 
 sheriff is responsiljle." 
 
 The doctrine of Inrrrn/ v. Mufimuj (/) has not gone unquestioned. 
 
 {h) Lake V. rAVem, 1 Ld. Raym. 1?,?, ; 
 Martin v. Podijer, 2 W. 151. 701 ; Pafiet v. 
 I'erchard, 1 Esp. 20.0 ; Jikhcs v. Kianit, 
 9 C. & r. 040; Besgcn v. Whidlunn, C, 
 Q. B. IGO; Woodhain v. Picddocl; Gow, 
 34, K. (J. 3 Moo. 11. 
 
 {c) 11 :\r. & W. 207,270. 
 
 {d) 3 Ex. 100. 
 
 (e) Seo JiusscU v. Cumber, 1 Keb. 940. 
 
 (/) 11 M. & W. 207.
 
 WITHIN 13 ELIZ. c. 5. 177 
 
 In Bemmctt v. Lawrence (g) the slicrifl' rcturnod to the plaintiU's 
 writ tliat he had already levied the goods of ,1. W., tlu; del. tor, on 
 a ])revious judgment; the plaintiff brought an action against tlie 
 sheriff, and produced evidence tliatthe prior judgment was fraudu- 
 lent, lie had given the sheriff notice that he disputed the validity 
 of the first execution, and the sheriff had offered to pay the phiin- 
 tiff the proceeds on receiving an indemnity, hut none was given. 
 It turned out that none of the goods seized really Ijclongcd to 
 J. W. Lord Campbell, C. J., said : " When a proper opportunity 
 arises I should like to have the case of Imray v. Marjnaii (h) 
 reconsidered;" and Sir W. Erie also said: "As to the question Ilar.lHl.ip on 
 whether the slieriff was bound to notice that the prior execution ^'"^ *''"^""' 
 was fraudulent, this case certainly shews that such a doctrine 
 throws great difficulty on the sheriff. He finds a very intricate 
 state of circumstances ; he is threatened if he does not pay over 
 the proceeds ; he offers to do so on being indemnified, but he is 
 required to go on at his peril, under liability to an action, from 
 which he is relieved only by the accident of having seized goods 
 not belonging to the execution debtor." 
 
 On the other hand, it was said by Lord Tenterden (i) that 
 though the sheriff must see at his own peril tliat the party who 
 sets him in action is acting bona fide, yet, where he exercises all 
 reasonable caution and himself acts fairly and bona fide, he is 
 entitled to apply to the Court for an indemnity from one of two 
 conflicting claimants. But on principle, speaking generally, the slierifTs 
 sheriff is liable ; and it is highly just and proper that he should pHncinlJ! ^^ 
 be so : if it were otherwise, a wide door would be opened for fraud 
 and the officers of the sheriff and the debtors against wliose goods 
 process issued would be colluding together for the purpose of 
 making one process the means of defeating another. 
 
 So if the sheriff has various writs of fi. fa. in his hands against 
 the same debtor he is bound to execute them all, giving priority to 
 each in the order in which they came into his hands. He is liable 
 if he does not execute ; unless he had notice that the writs are 
 fraudulent (/j). 
 
 (</) 15 Q. B. 1004. (A) 11 .^I. & W. 207. 
 
 (/) In Tjovich v. Crowder, 8 B. & Cr. 132. 
 (k) Dennis v. Whetham, L. E. 9 Q. B. 345. 
 
 N
 
 178 ^VIIO ARE CT.EDITORS 
 
 How is tlio If the sheriff is bound to seize and sell, notwithstanding a prior 
 
 decide when fraudulent deed or execution, it is necessary to inquire what evi- 
 an assignment, jj^jj^e he is to be guided by, as to whether or not the prior deed or 
 
 6ic., IS liaudu- o J ' i 
 
 lent? execution was fraudulent (/). 
 
 Was it a real The real question at issue appears to be, whether the first assign- 
 transfer or a -/PI 
 mere cloak ? ment or execution (tor the statute places both on the same footing) 
 
 was a bona fide transaction, intended to part with the property in 
 
 the goods, or whether it was intended that the debtor should keep 
 
 possession and have his goods back again, and it was all a pretext 
 
 to keep off subsequent executions, and the debtor was really to 
 
 rirection not have the goods all along (m). It seems that where the first execu- 
 
 to sell. 
 
 tion is delivered to the sheriff with a direction not to sell, that is 
 of itself sufficient evidence of fraud to warrant the sheriff seizing 
 and selling the same goods under a subsequent execution (n), and 
 it would seem from most of the earlier cases that the mere fact 
 of the first execution not being made use of and the goods remain- 
 Goods left in ing in the debtor's actual possession was sufficient (o), even though 
 possessLn. formal possession was given (p). The judgment and execution 
 are to be looked at as working an absolute conveyance to the 
 creditor, and where there is " nothing but the absolute conveyance 
 without the possession, that in point of law is fraudulent " (q)- 
 At all events, the fact of the first execution remaining in the 
 sheriff's hands is sufficient to put him upon inquiry with respect 
 to it (/■). Althougli the goods have been actually seized under the 
 prior execution and sold by a bill of sale from the sheriff, yet 
 actual notice that such assignment was fraudulent, and that the 
 debtor is still in possession, renders the sheriff liable (s) ; in such 
 a case the circumstance that the sheriff is obliged to derogate from 
 his own grant and rescize the goods in the hands of the grantee 
 
 {I) See Salmon v. James, 1 Dowl. 3G9 ; >Snuth v. Bmsell, 3 Taunt. 400 ; lUce 
 
 Day V. Waldocl; 1 Dowl. 523. v. Serjeant, 7 Mod. 37 ; /mra.v v. 3Iag- 
 
 {m) Riches v. Emns, 9 C. & P. G40, nay, 11 M. & W. 2G7 ; Christ ophcrson 
 
 C42 ; Bessey v. Windham, G Q. B. lCC-7 ; v. Jiurton, 3 Ex. IGO, et supra. 
 
 Tiffi/ne's Caw, 3 Rep. 80 b. (;;) Paget v. Perchard, 1 Esp. 205. 
 
 (n) Lorick v. Crmndcr, 8 B. & C. 132 ; (7) Edwards v. Harhen, 2 T. R. 587, 
 
 and Bco the remarks on this case, Imray 597 ; ante, pp. 119 et seq. But see Cole 
 
 V. Muynay, 11 1\1. & W. 270. But see v. Davies, 1 Ld. Raym. 724. 
 
 Day V. Waldock, 1 Dowl. 523. (r) Lovick v. Crowder, 8 B. & C. 132. 
 
 (0) Buclcnal v. Itoiston, Vr. Cii. 287 ; (.s) Christoijhcrson v. Burton, 3 Ex. 
 
 West V. Skip, I Ves. 245; ante, p. 174; IGO.
 
 WITHIN 13 ELIZ. C. 5. 17.) 
 
 makes no differoncc, for tho graiitoo, boiii.ir a party to tlie fraud, 
 lias no right to roiiiplain of the re-seizure (/). 
 
 The mere fact that a deed was executed to defeat subsequent Intent to 
 executions docs not make it frauduh'ut (/^ unless it was voluu- 1101^^*^*''^"' 
 tary (v). 
 
 It makes no diil'erencc that the fraudulent judgment and execu- Thongii there 
 tion were founded on a just debt, if they are made a fraudulent jX "•'""' 
 use of (w). 
 
 A judgment, however, even though fraudulent against creditors, imudulent 
 is good between the parties to it, and the sheriff is bound to sell iaiiT!.KainKt 
 under it, if no bona fide creditor intervenes; and if he thus sells ^^'"'"'r^'*' 
 
 iictiiii^ lor 
 
 to a bona fide purchaser, and not the fraudulent plaintiff himself. otUcrcreditors. 
 ho cannot be compelled to re-seize the same goods, for the pur- 
 chaser has a good title (x). 
 
 If, however, after seizure, and before sale, the execution cre- 
 ditor becomes disentitled to receive the amount of the judgment 
 debt, the sheriff cannot sell, at least without instructions from the 
 execution creditor (y). 
 
 It was formerly the law that as the sheriff was bound at his Jury sum- 
 peril to take only the goods of the defendant, he might summon a ^^^q- ^ 
 jury to try the right to the goods (,:). But this seems to have been 
 merely a proceeding by the sheriff on his own authority, and not 
 under the King's writ (a), and it was held that such an inquisition 
 was not evidence in an action against the sheriff for a false return of 
 nulla bona (h), and therefore afforded him no real protection. V>y No protection 
 the Interpleader Act (1 & 2 Will. 4, c. 58), s. G (c), and the Common j" '^'"'j^^j^ 
 Law Procedure Act, 1860 (23 & 24 Vict. c. f2r)), s. 12 (J), a slierifl' ."01''^''' "" 
 or other officer executing any process may apply to the Court, and tlie 
 Court may summon the party issuing the process, and any persons 
 
 (/) Christoplierson v. Burton, 3 Ex. Blac. G5; -Prtjv v. iV«';?««H, 4 T. I?. C21, 
 
 1G2 ; ante, p. 17G. 633 ; Roberts v. Thomas^, T. K. 88. 
 
 (t() Ante, p. 99. («) Lathoio v. Earner, 2 H. Blac. 437. 
 
 Iv) Ante, pp. 85, 104 et seq. [h) Glossop v. Pole, 3 M. & 8. 175 ; 
 
 {w) Eke V. ^Serjeant, 7 Mod. 37. Latlcoiv v. Earner, 2 H. Blac. 437 ; 
 
 (x) Imrcnj v. Marpiay, 11 :\I. & W. Watson on Sheriffs, 2nd ed. 282. 
 
 2G7 276. C'") ^^s ^^ ^^^^ ^^ interpleader hy sherift 
 
 {>/) >Snc(m/ V. Ahdi/, 1 Ex. D. 299. before tliis Act, see Slbujshj v. Boidton, 
 
 (z) Giib. Ex. 21,' T)aU. 140, Impey, 1 V. & B. 334. 
 
 153; Cooper v. Clutli/, 1 Bmr. 20, 1 \\. {<l) See Bragci v. Hoplcim, 2 Dowi. 
 
 151 ; Allen v. Gilhj, 3 Dowl. 143. 
 
 N 2
 
 180 CREDITORS AVHEX BARRED 
 
 (other tlian those ncininst whom the process issued) claiming the 
 goods, and adjust the claim and ivlievc the sheriff, whether or not 
 there was any action pending or commenced against the sheriff. 
 Lut there must he a bona fide claim, and not a claim in equity (e), 
 actually made to warrant the sherilf in applying under these 
 Acts (/) ; and where he had seized goods which were under distress 
 for rent, the Court refused relief under the Act, thougli he had 
 applied for, and the execution creditor had refused him, an 
 imdemnity (g). 
 
 Sheriff respon- Of course, the act of a sheriffs bailiff, or the under-sheriff, is the 
 
 under-sheriffs ^^^ 0^ the sheriff, whosc Warrant as between him and them is proof 
 
 or officers. ^f their authority (h). Where there is a prior assignment by A. 
 
 (and an execution, it is apprehended, is the same), which the sheriff 
 
 has treated as fraudulent, and levied on the goods as the goods of 
 
 A., and 15., the assignee, has brougiit his action of trespass for 
 
 taking his goods under a fi. fa. against A. ; on the assignment to B. 
 
 being found valid, it is no defence for the sheriff to say, " My 
 
 warrants were to take the goods of A. ; I gave no authority to my 
 
 officer to take the goods of any other person, and therefore I am 
 
 not answerable if goods which did not belong to A. have been 
 
 taken " (i). 
 
 Kew sheriff It makes no difference that between the fraudulent and the 
 
 lent execution. Subsequent executions the office of sheriff changes hands. It was 
 
 the duty of the officers of the second sheriff, when they found the 
 
 officers of the former sheriff in possession, to inquire into the facts, 
 
 and it would then have appeared that the first execution was 
 
 fraudulent (/.). 
 
 Money levied I\Ioney levied by a regular execution under a judgment valid on 
 dulent .jiulf,'- tlic faco of it cauuot be recovered back, in an action for money had 
 bTJecovered ^^^^^ received, on the ground that judgment was signed or execution 
 
 by motion to issued fraudulently for the whole sum named in the iudfrment 
 set Jt aside. " jo 
 
 when part had been already paid. The remedy, in case of such 
 
 (e) Sturf/ess v. Claude, 1 Dowl. 505. (fj) Haythorn v. Bush, 2 Dow). G41. 
 
 (/) haac V. Spikhuri/, 10 Bing. .3; But sec *S'//aV/t v. Ji'ksscU, 3 Taunt. 400. 
 Sloicman v. Bad; 3 B. & Ad. 103; (A) aHhins v. J'/ulUps, G L. .1. {().S.) 
 
 Feimick V. Laycocl; 2 Q. B. 108 ; Ford K. B. 209. 
 
 V. Bayntun, 1 Dowl. 357 ; Salmon v. (/) Aclicorth v. Kcmpc. 1 Doug. 40. 
 
 James, 1 Dowl. 309 ; Day v. Wahlod; 1 (/.) Lovlck v. Crowdcr, 8 B. & Cr. 
 
 Dowl. 523; Watsou on Sheriffs, 2nd ed. 132. 
 28G.
 
 BY ACQUIESCENCE OR NOTICE. 181 
 
 framl, is liy motion to tlic Court in wliidi (hu action was l>r(jnylit, 
 to set aside the judgment or execution (/). 
 
 Creditors may, under certain circumstances, lose their rights Creditors may 
 under tlie statute; tliey may be barred by ac([uicsccuic in -i [o^ayo/j''/'*'''^ 
 transaction which tliey might otherwise have avoided, and even '^^'^'^ 
 mere notice of it will sometimes have the same eflect. 
 
 cence. 
 
 Thus in Siccl v. Broicn (rn) the defendants lent C. £200 to buy the by acquics- 
 lease and fixtures of a public-house belonging to tlie plaiutift" To 
 secure this they took an assignment of tlie lease, and a jud.^ment 
 acknowk;dged by C, who, in payment for the lease and lixtures, 
 handed over the £200 to the plaintiff, and gave liim two notes, 
 payable at a future time, and a bill of sale of the furniture, C. 
 was put into possession of the house and goods, but, after nine 
 months, became embarrassed, and the plaintiff took possession of 
 the goods. Soon after, the defendants took the goods in execution 
 under their judgment as the property of C. The defendants failed 
 in proving their judgment ; but Lord Mansfield said that, had they 
 proved themselves to be creditors, it was very doubtful whether 
 they could have been in a better situation. " The evidence shewed 
 that the parties agreed to go hand in hand, the defendants liaving 
 the security of the lease, and the plaintiff" the security of the bill of 
 sale of the goods and fixtures ; " so that the bill of sale was valid ; 
 for such a bill of sale (though no possession given) is good between 
 the parties and creditors who concur (n). 
 
 In the same way a creditor who has been a party or privy to an 
 assignment, or who has acted in any way wliich would be e(juiva- 
 lent to an assent, recognition, or approval of it, cannot set it up as 
 an act of bankruptcy (o) ; nor can any person who claims through 
 such creditor. 
 
 (Z) Dc Medina v. Grove, 10 Q. B. who arc parties; for they know of tlio 
 
 152, 172. change of possession fioni other sources. 
 
 {m) 1 Taunt. 381 ; antl see Baldwin v. (o) Bamfurd v. Baron, 2 T. K. 594, n. ; 
 
 Cawthornc, 19 Ves. 166; Clanricardex. Tap2}endeit \. Burr/ess AEi\st,2'M; Bach 
 
 Henninrj, 9 W. E. 912 ; Wall v. Coclrell, v. Gooch, 4 Camp. 232 ; Ilieha v. Barjitt, 
 
 6 Jur. (X.S.) 768, reversed by L. C. 7 4 Camp. 235; Ex parte Cawlirell, 1 
 
 Jur. (N.S.)29; Bamford v. Baron, cited Eose, 313; Tojie v. Uochin, 7 B. & C. 
 
 4 Camp. 234; Freeman v. Pope, L. R. 5 101, and see 1 L. T. (N.S.) 440; Ex 
 
 Ch. 542. iwrte Ahojh 1 D- !''• & J- '-^'•^'i Ex parte 
 
 (n) See ante, p. 12G. AVant of posses- >Stra>/, L. R. 2 Ch. 374; but sec Dinicr 
 
 sion is no mark of fraud aqainst cruilitors v. JIavdcastJe, 31 L. J. (N.S.) C. P. 193.
 
 182 CREDITOES WHEN BARRED 
 
 OlUvcr V. In Ollivcr v. Kinrj (») a father, after a consultation with his 
 
 runrj, 11-1 
 
 brother, in whose judgment he liad great conlidenee, executed a 
 voluntary deed assigning a considerable portion of his property to 
 his two sons, and by his will made the brother and sons executors 
 and trustees, and died. The brother acted under the will until his 
 death, seven years afterwards, and as trustee concurred in the sale 
 of some land (devised on trust for sale by the will), together with 
 a piece of land, part of that comprised in the voluntary settlement ; 
 he never impeached the deed during his life, but was a party 
 (together witli the donees under it) to various transactions pro- 
 ceeding on the assumption of its validity. At his death his 
 executors impeached the voluntary deed as void against the 
 brother, as a creditor on a bond made some time before the volun- 
 tary deed. It is not stated in the reports whether or not the 
 brother received interest on account of the Ijond debt up to the 
 time of his death. The Court of Appeal upheld the deed {p). Sir 
 G. J. Turner, L.J., said that, without examining the facts after the 
 death of the settlor (which would make it stronger), he thouglit 
 that John King, the brother, never had any right to impeach the 
 settlement. " The deed," he said, " was suggested by John, was 
 prepared according to the instructions given by John, John himself 
 procured the execution of it by James " (the settlor) " and by J. 
 II. and j\I., the sons of James. The whole transaction appears to 
 have been one carried through, in fact, by the acts and concurrence 
 of John. At all events, the deed was executed with his full consent 
 and concurrence ; and," his Lordship thought, " he could not have 
 been permitted to say (and if he could not have been, his executors 
 could not be) that the deed thus executed with his full consent 
 and concurrence was a fraud upon him within the meaning of the 
 statute 13 Ehz. c. 5," 
 
 This decision goes further tJian any other, as it decides that a 
 man may, by acqidescciice ami concurrence, lose a right he once had 
 against an alienation subsequent to his debt. In the other cases 
 of this class the creditor had notice at the time v:hai he lent the 
 money (q), or the act by wliicli the delit was created and the aliena- 
 tion made were simultaneous (/■). Tliis decision was founded on 
 
 0?) 8 De G. M. & G. 110. 
 {'j) Wuodhaiii V. Ldduck, 3 .J. B. Moo. 11 ; Mijers v. Lulcc of Lcinstcr, infra, 
 (r) /Htcd V. lirowji, 1 Taunt. 381.
 
 BY ACQUIESCENCE Oil NOTICE. 183 
 
 the case of Tcasdalc v. Tcasdah (s), wliicli has generally l)ceii 
 supposed to carry to its utniosL liiuils llic lavour shewn to a pur- 
 chaser for valuable coimderatiun without notice {t). 
 
 In Tcasdalc v. Tcasdalc (s) a son, on his marriage, settled lands of 
 which he and his father thought he was seised in fee. The son 
 died, and it was afterwards found that he was only tenant for 
 life and the father was entitled to the fee simple. Lord King 
 decided in favour of the son's widow against her father-in-law, who 
 was privy to and attested the deed of settlement. There the 
 father and son had, by an unintentional misrepresentation, induced 
 a third person to alter her position and become a purchaser for value ; 
 but in Ollivcr v. Kiiuj {u) there was no purchaser for value (y), and 
 there were in fact no third parties {nj). 
 
 As to persons who lend their money or give credit after a Or by notice, 
 transfer of property, unaccompanied by possession, has been made, 
 the transfer will not be held fraudulent against them if they had 
 notice of it. 
 
 In Woodham v. Baldoch {x) the plaintiffs were trustees of one F. 
 under a creditors' deed. They were, therefore, in virtual posses- 
 sion of the property. By the terms of the deed the trustees (the 
 plaintiffs) might allow F. to remain in possession for the purpose 
 of carrying on his trade until the debts due to him were collected 
 and the other property converted into money for the benefit of his 
 creditors. Part of the property was sold by auction, and described 
 as the property of F. removing from A. to E. Matterson, hioirimj 
 (as was decided) that the property belonged to the trustees, 
 advanced money on F.'s account, and took a security on this pro- 
 perty, which was then at B. It was decided that i\I. having notice 
 of the change of property when he lent the money, the deed was 
 not fraudulent as against him. 
 
 And in an old case (jj) the Court inclined to dismiss the bill of 
 
 (.s) Sel. Ca. Ch. 59. estate tail, wliicli, however, was prefenoa 
 
 {t) Sug. V. & P. 14tli ed. 743-4 ; see to the claim of a volunteer. This was 
 
 notes to°]Jassel v. NoswortJiy, 2 AVh. & affirmed by the House of Lords. 
 Tu. L. C. 6th ed. 5 et seq. {w) Sec the Vice-Chancellor's judg- 
 
 (m) 8 De G. M. & G. 110. ment, 1 Jur. (N.S.) 10G6 ; and French v. 
 
 {v) See Baw v. Pote, 2 Vera. 240, French, 6 De G. M. & G. 95 ; and see 
 
 where a tenant in tail concealed his title Murker v. 3Iarlcer, 9 Hare, 1, IG. 
 on a marriage settlement being made: (*•) Ciow,35, S. C. 3 J. B. Moo. 11. 
 
 the settlement was held good n.q.",inst the {>/) Sarjlfari/ v. Hide, 2 Vcrn. 44.
 
 184 
 
 CREDITORS WHEN BARRED 
 
 Creditor 
 barred by 
 holding out 
 the deed to 
 third parties 
 valid. 
 
 Delay only 
 barred by 
 Statutes of 
 Limitation. 
 
 a creditor who, before he lent his money, had notice of the settle- 
 ment wliich he impeached, although it contained a power of revo- 
 cation. 
 
 A creditor clearly loses his rights against a deed by holding it 
 out to third persons as valid. 
 
 In Mijcrs v. Dnhc of Lcindcr (.:) the plaintiff, a simple contract 
 creditor of J. J. H., being fully accpiainted witli the deed in fpies- 
 tion, entered into a treaty to procure a loan for J. J. H. from an 
 insurance office to pay off a mortgagee, after which he was to get a 
 second mortgage for his own demand. He afterwards obtained 
 judgment, and filed a bill to impeach the deed. Sales to a large 
 amount were had under the deed, and other transactions were 
 entered into on the assumption of the deed, which was acted on for 
 nearly twenty years, being valid. Lord St. Leonards (o) said the 
 Court would never allow a creditor to impeach a deed which he 
 has held out to an insurance company as a valid deed, on the 
 security of which he might have procured a large sum of money ; 
 and certainly then he would never have entered into the considera- 
 tion whether the deed was valid in part and invalid as to the 
 residue. That was a doctrine the insurance company never would 
 have looked to. The deed was represented to them as a deed 
 under which they might safely advance a great sum in order to 
 pay ofi' existing incumbrances, and the plaintiff was to take a 
 second mortgage. Both the insurance company and the plaintiff 
 were to take their respective securities under and not in opposition 
 to the deed, which he had thus, by his own acts, precluded himself 
 from objecting to (jj). 
 
 The right of a creditor to set aside a deed under 13 Eliz. c. 5, is 
 a legal, and not an equitable, right. The fact that the creditor has 
 delayed to take proceedings to set aside a deed under that statute 
 is therefore immaterial, so long as the delay has not been such as 
 to create a statutory bar. Until the right to recover the debt is 
 barred liy the Statutes of Limitation, the legal right to avoid the 
 deed exists (c;. 
 
 The rights of creditors, however, are not barred by a release or 
 
 {z) 7 Ir. Eq. Ecp. 140, 1G6. {h) And see Aldhoroufjh v. Tnje, 7 
 
 (a) Then Sir Ed. B. Sugden, Lord CI. & F. 436, 4G3. 
 Chancellor of Ireland. (c) In re Jladdever, 27 Ch. D. 523,
 
 BY ACQUIESCENCE Oil NOTICE. lS5 
 
 acquiescence, unless such release is given or sucli acquiescence is RcIoaBc and 
 consistent with a full knowledge of the facts. 80 wliere a release Sc'irno'Lur.' 
 in an inspectorship deed was executed in ignorance of a settlement 
 afterwards impeached, it was held the rights of creditors were not 
 barred (d). So a composition signed by creditors in ignorance of a 
 prior voluntary settlement by the debtor was held not to bar their 
 rights, and the settlement was set aside (c). 
 
 {(l) Maclayx. Doufjlas, L. 11 14 Eq. (c) Tan<iucra>j\. Duii:Ie.^,L. l\ 14 Eq 
 
 106,123. 151.
 
 PART III. 
 
 THE RIGHTS OF PURCHASERS UNDER THE STATUTE 
 27 ELIZABETH, CAP. 4. 
 
 CHArTER I. 
 
 ■WHAT CONVEYANCES AKE VOID AGAINST SUBSEQUENT PUKCIIASEES. 
 
 Although, as has been frciiiiciitly ruiiuirkod, tliu statute 27 Eli/.. 'I'liou-Ii iho 
 c. 4, speaks only of conveyances, estates, gifts, grants, charges, and ,,j,y r, ,„',j j,," 
 limitations of uses made " for the intent to defraud and deceive ^^"^ ''''''"''' 
 such persons as shall purchase the same lands" &c., and the word 
 " voluntary/" is never once used in it ; yet it has been settled by a it makes all 
 
 T 1 ji 11 -IT* voliiiilitn/ con- 
 
 variety of cases, extending over nearly the whole iieriod rlunng veyances voi.i 
 which the statute has been in operation, that every roUntanj con- ;j^'j;,';'J,^;';'''''' 
 veyance is, by the statute, made void as against a subsequent bona chasers, 
 fide purchaser for value (o)- 
 
 The reason of this appears to be, that when tlie Court finds that The reason of 
 
 T,,. , c tlic nilo. 
 
 the same land has been disposed of to two dillerent persons, one ot 
 whom has paid for it and the other not, it considers that the volun- 
 teer has no right to stand in the way of the purchaser ; and, from 
 the mere fact of no consideration having been paid by the former, 
 it presumes such fraud in the two transactions, in their relation to 
 one another, as to bring them within the scope of the xVct, and will 
 not allow this presumption to be rebutted (h). 
 
 The fact is, that, the two conveyances being utterly inconsistent, Krau-l in.plica 
 
 ,, lioiii tiie two 
 
 the very execution of the subsequent conveyance evmces the transactions. 
 
 (a) Dot V. JiaHKn!//,9East, 70; ante, Sec also Saunders v. Dcho'; 2 Vcrn. 
 
 p 4; Doe d. Neicman v. Ritsham, 17 Q. 271. The mortgage, "though subse- 
 
 B. 723; Troifdl v. SJienton, 8 Ch. D. quent to the settlement, that being volun- 
 
 325 ; ct'infra, tr.ry, was a good mortgage. " 
 
 (6) Clarice v. Wriijhl, G H. & N. 875.
 
 188 VOLUNTARY CON VEY ANX'ES VOID 
 
 fraudulent intent of the former one; or, as was quaintly said in an 
 old case, " because 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 favour 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 conclusively against him and the person 
 to whom he conveyed that such intention existed u-Jioi he made 
 the convcijancc, and that it was made in order to defeat the pur- 
 chaser (c). 
 
 27 Eliz. c. 4, The ith section, which makes an exception in favour of all con- 
 veyances, &c., had or made "upon or for good (/) consideration, 
 and bona fide," almost implies the necessity of such a construc- 
 
 Exception of tion ; for if conveyances, kc, on good consideration and bona fide 
 
 convGVciricGs 
 
 &c., on "good are alone excepted, it follows that all which are without good con- 
 Li'clbonafide!" sideration or bona fides are within the statute, and without such a 
 
 construction the statute, it is clear, would have become almost a 
 
 dead letter. 
 
 Doctrine well The case of ColvUlc V. Parhcr (a), decided or cited 5 Jac. 1, 
 
 settled. . 
 
 shews that at that time the doctrine was well understood (A), and 
 it has been pretty tirmly adhered to up to the present time. 
 
 Exception. Almost the only conllict of cases has arisen from the doctrine 
 
 that in one instance a voluntary conveyance is not void as against 
 a subsequent purchaser for value ; and that is ichcre the considera- 
 tion/or the seeond deed is fjrosshj inadeqaate, and the purchase is, 
 in fact, a contrivance to get rid of the voluntary deed. The 
 difference in this respect was clearly laid down as early as in a 
 case mentioned in Tinjncs Case (i) : " Tliat a man who was of 
 
 (c) Culvillc V. Parher, Cro. .Jac. 15S. tended valuable conhideiation : o Ecp. 
 
 {d) In Hoc V. iMittoit,2 Wils. Brd cd. 83 b; ante, p. 81. 
 358, n. (;/) Cro. Jac. 158, supra. 
 
 (e) Doc d. KeiKiiiuii v. Husham, 17 (//) See also TonkinH v. Ennis, 1 E(]. 
 
 Q. B. 723, per Lord Campbell, C..J. ; In Ca. Ab. 334. But sec Lord Bunhurijn 
 
 re Barlccr's Estate, 44 L. J. (N.8.) Ch. fV/sr, Freera. Cb. 8,0, a.d. 107(3. 
 487 489. (0 Ncdhani v. IJtuutnont, 3 Ucp. 83 b. 
 
 (/) ^y " S^o*^ " consideration is in- See also I'pton v. Basset, 1 Cro. Eliz. 
 
 441.
 
 AGAINST SUBSEQUENT PURCHASERS. 189 
 
 small undev.stamlin^' and not ablo to govern tlic lands wliicU 
 descended to liini, and lieinL;' given to riot and disni'drr, liy nicdia- 
 tion of his friends openly conveyed his lands to them on trust 
 and confidence that he shouhl take the profits for his maiute- 
 nance, and that he should not have power to waste and consume 
 the same ; and afterwards, he being seduced hy deceitful ami 
 covinous persons, for a small sum of inoncy 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 pur- 
 chaser who doth not come to the laud for a good consideration, 
 lawfully and without fraud or deceit {k) ; and such coniryance 
 made on trust is void as to hivi 'idio purchases the land for a good 
 consideration lowt fide, without deceit or cunning." 
 
 Doe v. Routledge (I), which has always been brought forward (//;) I>oe v. I.'out- 
 to shew that at that time (n) there was an opinion that \'obintary '' 
 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 settlements merely as Voluntary 
 being voluntary, but as fraudulent and covinous. But it is sub- ^i'mpiy as vol- 
 mitted that this decision is not really opposed to any autliority before ""p^J^'j^'lJ Jjfo 
 
 or since, and that the rule is the same at the present day, and i"tt•^ei,tsoffuil• 
 pll^cllasl•rs. 
 that it can be said ^yith perfect truth now that no voluntary settle- 
 ment is impeachable merely as voluntary, but as fraudulent and 
 covinous. 
 
 The mark by which such fraud and covin is known, or from 
 which it is presumed, is that the voluntary settlement is set up 
 against the subsequent one for valuable consideration and bond 
 fide ; and it is remarkable that very much the same expressions 
 were used by Lord Cranworth in 1857 as those on account of wliicli 
 
 (A) This is the kind of purchaser as 1 Mod. 119; and Jlolford v. lUj'urd, 
 against whom vohmtariness is not, or is 1 Cli. Ca. 210. 
 only prima, facie, evidence of frandulence, (Z) 2 Cowp. 705. 
 
 as spoken of in Lavender \. JJIadslone, (m) Doe v. Manninff, 9 East, 59; 
 
 2 Lev. 14G ; Lord Tei/nJunu v. JluUin.^, Clarke v. IVru/ht, G 11. & N. 880. 
 
 (m) a.d. 1770.
 
 190 VOLUNTARY CONVEYAXCES VOID 
 
 Loi-d Mansfifld has been accused of not liaviiig recognized a pi'in- 
 ciple since established (o). 
 
 Cadof/an v. In Cadogaii v. Karnctl (ii) Lord ]\Iansrield seems lo have been 
 
 again misunderstood, ^vith tlie same result. That was a case in 
 which a marriage settlement was impeaclied under 13 Eliz. c. 5; 
 and, after just mentioning the other statute to shew the distinc- 
 tion he says : " The statute 27 Eliz. c. <!•, does not go to voluntary 
 conveyances merely as being voluntary, but to such as are fraudu- 
 lent. A fair voluntary conveyance may be good against creditors." 
 This must either be a misprint for 13 Eliz. c. 5 (q), which is tlie 
 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 judgments which might not 
 have been said with equal truth at the present time. 
 
 In aid of this view of the case it must be remembered that 
 Lord Mansfield himself (whose decision in Doe v. Eoutlcdgc (r) 
 and dictum in Cadogan v. Kcmutt (s) have been so much relied 
 on) had previously decided, in Chapman v. Emery {f), that the 
 settlement there on a wife and children was void as being merely 
 voluntary (//). 
 
 Even Lord Hardwicke has been accused of errinQ' in the same 
 
 direction {v), and of putting the two statutes on the same 
 
 Rule well footing (?r) ; Ijut his judgments on the point, when carefully coni- 
 
 Hardwicke'r P^^cd, are thoroughly in harmony witli, and may be said to have 
 
 ^'™'^- established, the well-settled doctrine of the present day (a:). Lord 
 
 (o) In rerrij-IIeriich v. Attwood, 2 judgment in Doe v. JIanninr/, 9 East, 
 
 De G. & J. 21, 39. Seo post, p. 197, G3. 
 
 where the passage is quoted at length ; (r) G II. & N. 880. 
 
 and sec post, p. 218. (;/;) G IL & N. 881. 
 
 (/>) 2 Cowp. 4:J2, 434. (r) Sec O.rki/ v. Lee, 1 Atk. 625 
 
 (7) Similar misprints are not nnconi- (a.d. 1736), in which the settlement was 
 
 mon even in reports more recently pub- ordered to be delivered up though no 
 
 lished. See Finch, 104; 2 "Wils. .%7 ; fraud (see note Sandar's cd.). Newstcad 
 
 12 L. J. Ch. 106; 4 1). & War. 427; v. iiearles, 1 Atk. 265 (a.d. 1737). In 
 
 3 De G. & .1. 189 ; Jhn/Rpoole v. CoUlna, Walker v. Burroios, 1 Atk. 94, he said : 
 
 18 W. E. 730 S. C. L. W. 6 CIi. 228. "But upon the statute of the 27th Eli/.., 
 
 (r) 2 Cowp. 705. which relates to purchasers, there indeed 
 
 («) 2 Cowp. 432. a settlement is clcarlj/ void if voluniari/, 
 
 (t) 1 Cowp. 278. that is, not for a valuable consideration, 
 
 (u) See Lord Ellenborough's elaborate and the subsequent purchasers shall pi-e-
 
 AGAINST SUBSEQUENT PURCHASERS. 101 
 
 Ilaidwickc himself in Toionshcnd v. Windham (y), after clearly 
 explaiiiiiii^- the effect of the statute 1;] Eliz. c. 5, as to creditors, said : 
 " But on the 27 Eliz. nrr/j vulunianj conveyance made, where Tlio rulo nn 
 afterwards there is a subsequent conveyance for valuable con- j"pniur,i7 
 sideration, thouj^h no fraud in that voluntary conveyance, nor tlie ^^''^'^''" 
 person makin^L;' it at all indebted, yet the determinations are tliat 
 such mere voluntary conveyance is void at law by the suljsequcnt 
 purchase for valuable consideration " (.~). So when lie says, in 
 WJiite V. Sanson (a) : " I hardly know an instance where a volun- 
 tary conveyance has not been held fraudulent against purchasers," 
 tlie 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 voluntaiy 
 deed without being properly qualified (h). 
 
 There is no case really opposed to the doctrine, wliich is now If aBcttlemcnt 
 at least settled beyond all doubt (r) ; and the Court can decree u iVframhi.-nt 
 a conveyance to be fraudulent within the statute merely for being ""^*^'"-' ^''''^■ 
 voluntary ; and that without any trial at law (d). So it was 
 said by Jessel, M.E., in Trowcll v. Shenion (e) : " In Doc v. 
 Manning (/) Lord Ellenborough reviewed the cases, and drew 
 from them the conclusion that, if a settlement was voluntary, it 
 was fraudulent within the meaning of the statute. That decision 
 was in 1807 and has been followed ever since, and to cite cases 
 
 vail to set aside sucli settlement." Sec 2 Bro. C. C. 149; and see Tayhrx. Stile 
 
 also Undenvood v. Ilitchcox, 1 Ves. (Ch. 1703, MS.), stated Sug. V. & P. 
 
 279, 280, and Townsliend v. Windham, 14tli ed. 714. 
 
 2 Ves. 1, 10. And in Senhousc v. (a) 3 Atk. 412. 
 
 i:arle, 1 Amb. 289, Le said : " But tliat {b) Upton v. Basset, 1 Cro. Eliz. 444 ; 
 
 is a voluntary settlement and not in pur- post, p. 218. 
 
 suance of the articles, and therefore could (c) Doe v. Manning, 9 East, 59; 
 
 not hurt the mortgage ; for as against a Corniich v. Trapaud, 6 Dow, CO ; Leach 
 
 purchaser (and a mortgagee is such) the v. Bean, 1 Bep. Cli. 78 ; lioe v. Mitton, 
 
 law declares a voluntarij settlement to be 2 Wils. 350 ; Ttcipie's Case, 3 Rep. 80 b ; 
 
 void." See also Shaw v. Standinh, 2 Evelyn v. Templar, 2 Bro. C. C. 148, 
 
 Vern. 327 (a.d. 1095); WtdUns v. 6 H. & N. 800, 875 ; f/ooJ/vV//// v. iJ/o.w^, 
 
 Steemns, Nels. 100; Hcdion v. Neal, 2 W. Bl. 1019; Jenldns \. Kemishe, 
 
 B. N. P. 90 a, 261, 1 Brownlow, 45; Ilardr. 895, 1 Lev. 150; Chtrhe v. 
 
 Uirch-v. Blarjrave, 1 Amb. 205. Wright, 11. & N. 800,875; Shurmnr 
 
 (y) 2 Ves. 10. v. ,Scdgwicl-, 24 Ch. D. 597. 
 
 (rj) And thirty-seven years afterwards {d) White v. Ifussey, Prec. Ch. i;]. 
 
 Lord Thnrlow said the rule was such, and (c) 8 Ch. D. 325. 
 
 so many estates stood upon it, that it (/) 9 East, 59. 
 could not be shaken ; Evelyn v. Tcmylar,
 
 192 VOLUNTARY CONVEYANCES VOID 
 
 of an earlier date witli a view to lead the Court to a contrary con- 
 clusion is a mere waste of time." 
 
 The meritorious consideration of tlie first conveyance, as its 
 being a provision for wife and children (//), 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 (/). 
 
 Voluntary re- The Statute extends to the case of a tenant in tail suffering 
 te'miii^ in tail ^ Voluntary recovery with a deed to lead the uses also volun- 
 uith voluntary ^ ^j.-y u rpj^^ ^^^^ ^j ^^^ ^ BciverstocJc V. liolfe " (0, Said 
 
 uses, vom. j \ / ./ \ /» 
 
 Lord Campbell (m), " is an express authority for so holding. That 
 case was mainly grounded on the case of Fitzjamcs 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 airived on such consideration was 
 
 COlTCCt," 
 
 But bnrs tbe In such a casc, however, the recovery will be valid so as to 
 bar the estate tail, but the voluntary uses declared will be void 
 against a purchaser, and if all the uses declared are void, the 
 recovery will, it seems, enure to give the tenant in tail the fee 
 simple (o). 
 
 Trustees inter- It makes uo difference whether the voluntary conveyance 
 
 t^e'riaJ' '™™^ ^^ to trustees or directly to the volunteers ; if to trustees, 
 
 and aU 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). 
 
 {(j) Watldns v. Steevens, 1 Nels. 100; (m) 17 Q. B. 422, 
 
 Goodrifjht v. Moses, 2 W. BI. 1019 ; (n) 1 Sid. 133. 
 
 Chajnnan v. Emery, 1 Cowp. 278 ; (o) Ki(/htinf/ale v. Uarl Ferrers, 3 
 
 Barton \. Vanheythuysen, 11 Hare, 120, P. AVms. 200; iStapiUon v. titapUton, 1 
 
 129 ; fihurmur v. Sedcjioich, 24 Cli. I ». Atk. 2 ; Boherts' Case, 3 Atk. 308, 313 ; 
 
 597. Martin v. Strachan, b T. R. 107, n. ; 
 
 (li) Stiles V. Attorney-General, 2 Atk. notwithstanding the older cases, in which 
 
 152 ; Dolphin v. Ayhvard, L. II. 4 II. L. it was held that it should enure to the old 
 
 48G; Craclcnall x.Janson, 11 Ch. 1>. w&qh: Aryol \. Cheney, LdXch, SI; Waher 
 
 21, 22 ; post, p. 198. v. Saoice, Vaha. 359. 
 
 (i) Martin V. Martin, 2 Russ. & M}-. (p) Barton v. VanJieythtysev, 11 
 
 507. Hare, 120; Townend v. Toher, L. R, 
 
 (i) TarUton\. TAddell,\l (i.V,.?,^)^. 1 Ch. 440, 458; Lister v. Turner, b 
 
 (0 8 Ad. & E. G50. Hare, 281.
 
 AGAINST PURCHASERS WITJl XoTRK. 10;{ 
 
 And the question whether tlie settlor was or was not indebted Settlor's dolts 
 when he executed the voluntary deed is of course immaterial (fj) •™""'^*""'- 
 with respect to the claims of a subsequeiu ])ur(Iiaser of \\nt 
 estate. 
 
 The fact that before purchasing the ])urchaser knew and had Notice of the 
 notice of the prior voluntary seltlement makes no difference, if mikeB''n'j; j-f!*^ 
 the first conveyance be voluntary and the purchaser a honk fide ^''™"^*'- 
 purchaser for value (?■). 
 
 Thus, five years after the statute (x) tlic 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 (/) ; but in that case 
 the purchaser 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 ho, 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 (/'). 
 
 An artificial and constructive fraud has tlms grown out of Artificial 
 the interpretation of this statute ; and that, in which there is '^'*" ' 
 de facto, and from the nature of the case, no fraud or fraudu- 
 lent intention whatever, is declared fraudulent by an arliitrary 
 legal presumption (r). 
 
 The reasoning on which this doctrine is founded, if sound, Reasons 
 
 against tue 
 
 is at least purely technical, and would seem to extend the rule, 
 operation of the statute beyond the limits of its usefulness. 
 
 [q) Rex V. Nottingliam, Lane, 47 ; G5 ; Boe v. JUitton, 2 "Wils. 35G, 3u8 b ; 
 
 White V. Stringer, 2 Lev. 106; Toicns- Goodri(jht\. ]\Ioseii,2\\. Bl. 1019; Toii- 
 
 hend v. Windham, 2 Ves. 11 ; ante, pp. Icins v. Ennis, 1 Eq. C. Ab. 334. 
 
 15, 191. (0 f^o also in the ci\-il law: "Nemo 
 
 (r) Erelyn v. Templar, 2 Bro. C. C. cnim videtur fraudare eos qui sciiint et 
 
 148; Chapman \. Emery, 1 Cowp. 278; consentiunt " : Dig. lib. 42, tit. 8, par. (!, 
 
 Doe V. Rusham, 17 Q. 13. 723, 725 ; Doa sec. 9. 
 
 V. Manning, 9 East, 59; Bayspoole v. (m) Bucldc v. Mitchell, 18 Ves. 110; 
 
 Collins, L. R. 6 Ch. 232; Feter v. Barton \. Vanhcythuyscn, II llarc, 12G, 
 
 Kicolls, L. R. 11 Eq. 391; Fletcher \. 130. 
 
 J^eiJema?!, 40 L. J. (N.S.) Ch. 624. But (i') "Qufe natura, vidcntur honesta 
 
 see Wathins v. Steevens, Nels. 160; esse, temporibus sunt inhoncsta " : Cic. 
 
 post, p. 196. L)e Oflf. lib. 3 ; and see In re Bidlcr, '2'i 
 
 (s) Gooch's Case, 5 Rep. 60. See Ch. D., per Cotton, L.J., 82. 
 also Gardiner v. Painter, Sel. Ca. in Ch. 
 

 
 194 VOLUNTARY CONVEYANCES VOID 
 
 It is absurd to say that it is necessary for the protection of 
 a purchaser to make void as to him a voluntary conveyance of 
 which he is aware ; for lie need not buy unless he chooses (w). 
 On the contrary, the rule can hardly ever be of any practical 
 use to a really fair purchaser, who, having notice of the volun- 
 tary deed, could not be advised to purchase a lawsuit by buy- 
 ing the jroperty. For the apparently voluntary deed might at 
 any time within the Statutes of Limitation be set up against him 
 as not really voluntary. 
 
 A deed apparently voluntary may be supported by proof of 
 consideration (a), or by considerations which arise subsequently 
 to the deed (y). The purchaser would have either to bring an 
 accion for specific performance against the vendor and the volun- 
 teers, 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 previous 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 
 Enables settlor settlor the power of defeating his own gift at any subsequent 
 
 to defeat his . 
 
 gift. time ; and secondly, the rule that bona fide purchasers and they 
 
 "Secret "con- alone sliall be protected from fraud and " sm-d and covinous con- 
 veyance. 
 
 vcyances," &c. ; for a man cannot be said to be defrauded by 
 a " secret " conveyance when he purchases willingly with full 
 knowledge of it. 
 
 Purchase with Again, the statute " was made against all fraud and deceit, 
 
 notice is a 
 
 iraiid on the find doth not iu;lp any purchaser wlio doth not come to the 
 land for a good consideration, lawfully and without fraud and 
 deceit " {z). In upholding the settlement in Roe v. Mitton (a), 
 AVilraot, C.J., said : " Whether the purchaser for a valuable 
 
 (w) Clarice v. TT7/Zo//, L. K. 7 Ex. 313. (z) Tin/ne's Case, 3 Eep. 83 b. 
 
 (x) See post, p. 2GG. («) 2 A\'ils. 358. 
 
 (?/) Clarke v. Willott, L. E. 7 Ex. 317, 
 318 ; and see post, pp. 315 et seq. 
 
 volunteers.
 
 AGAINST PURCHASERS WITH NOTICE. lOf) 
 
 consideration liatl notice of tliis settlement or not i:? not material 
 (I think) in this case ; but if he had notice I am clearly of 
 opinion that the purcIiaHe is fraudulent." And so it is in every 
 case: if a man has (perhaps in tlie discliarge of a higli moral 
 duty in providing for his wife and children) made a voluntary 
 settlement, how can a purchaser, knowini,^ of that settlement, 
 and combining with tlie settlor to defciit it, be represented as 
 " without fraud and deceit " ? 
 
 Many opinions of judges are recorded condemning tlie doc- The rule con- 
 trine ; but as it has now stood ever since the Act was first judges. ^ 
 passed (h), it is, as Lord Eldon observed (c), ■ too late for any 
 judge to dispute it ; but the opinions of so many eminent 
 judges {(J) 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 («?), "that the statute of the 27 SirW. Crant. 
 Eliz. has received this construction : that a voluntary settle- 
 ment, however free from actual fraud, is by the operation 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 warranted, or that the purpose of it required, such a 
 construction ; for it is not easy to conceive how a purchaser 
 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 tlie grounds on which it 
 originally stood." 
 
 It seems indeed to have been the rule at one time that a deed Xotice of deed 
 
 on meritorious 
 . . consideration. 
 (6) A.D. 1585; Gooch's Case, 5 Eep. Martyr, 1 B, & P. N. R. 335; and of 
 
 GO (a.d. 1590). Lord Eldon and Sir "W. Grant as mcn- 
 
 (c) In Pulvertoft v. Fuhertoft, 18 tioned in the text ; Ura^ulb/n v. Ord, 1 
 
 Ves. 90. Atk. 571 ; Jiosher v. Uilliams, L. R. 20 
 
 (fZ) Of Lord Talbot and Chief Justice Eq. 218. But see 1 Fonbl. Eq. 271, and 
 
 Wilmot, 2 Wils. 3rd ed. 358 ; Lord Eob. Fraud. Conv. 41. 
 
 Thnrlow in Evelyn v. Templar, 2 Bro. (e) \tt Bucldew MitcJieU, IS Yes. 110 ; 
 
 C. C. 148 ; Lord Ellenborough in Doe v. and see Trowell v. SJie7ito)i, 8 Ch. D. 318. 
 
 Mannuuj, 9 East, 71 ; Chief Justice Cock- (/) "Nemo enim videtur fraudare eo3 
 
 burn in Clarice v. Wrif/Jd, 6 H. & N. qui sciuut et consentiunt ": Dig. lib. 42, 
 
 870; Sir J. Mansfield, C.J., in Doc v. tit. 8,. par. G, sec. 9, 
 
 2
 
 196 
 
 VOLCNTARV CO^■VEYA^X'ES VOID 
 
 on meritorious consideration (as 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, and it must 
 be taken as definitely settled that, whether with or without notice, 
 a conveyance in favour of relations, liowever honest and other- 
 wise praiseworthy, or even a provision for a man's wife and 
 Void against children, however sacred in a moral point of view the duty of 
 with or with- niaking such a provision may be, is bad against a future purchaser, 
 out notice. ^^ without Consideration and voluntary (/^). 
 
 Of no weight 
 now. 
 
 Collateral 
 security. 
 
 American law 
 as to notice. 
 
 But where the purchaser has taken a collateral security against 
 the voluntary deed the question of notice seems to have been 
 made one of importance {i). 
 
 In the New York statute (A), substantially re-enacting 27 
 Ehz. c. 4, there is a clause to the effect that "no such conveyance 
 or charge shall be deemed fraudulent in fa^'our 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, or person to be benefited by such charge, was 
 privy to the fraud intended." And it seems that throughout the 
 United States, where the principles 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 con- 
 veyance prior to liis own and of wliich he had notice (/). 
 
 {(j) 1 Eq. C. Ab. 354, pi. 4. In Doc 
 V. liouthihje, 2 Cowp. 712, Lord Mans- 
 field says : " But in respect of voluntary 
 family settlements, to be sure notice 
 varies it much ; " on the principle adopted 
 by equity in construing 7 Anne, c. 20, 
 under which, where a man knows of an 
 unregistered deed, his registered deed 
 shall not Bet it aside. 
 
 {h) Clarke v. Wi-!r//,t, C H. & N. 870 ; 
 Doljoldn V. Aylward, L. R. 4 H. L. 486 ; 
 Trowell v. Shenton, 8 Cii. D. 318. 
 
 (i) Aldridf/e v. Dule, Fincli, 430, 
 where, however, the purcliaser seems 
 hardly to have been properly qualified ; 
 Jenninys v. /Celled; 1 Vern. 4C7, though 
 
 it is not certain that the settlement there 
 7vas voluntary ; and White v. Strhn/er, 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 con- 
 sideration: Sug. V. & P. 14th ed. 71G. 
 But see Watldns v. iSteevens, Xels. IGO, 
 where the mortgage with notice and 
 collateral security does not seem to have 
 been questioned. 
 
 (i-) N. York Eev. Stats, vol. 2, p. 134, 
 
 chap. 7, tit. 1, sec. 2. 
 
 (/) See Kent, Com. 12th ed. vol. 4, 464, 
 
 405; Story, Eq. Jur. 12th ed. bs. 427, 
 
 428 ; ante, p. 2.
 
 AGAINST rURCIIASERS AVITII NOTICE. 197 
 
 A conveyance, wlictlicr voluntary nr on Aalualilo consideration, Convcynnco 
 
 11 1 1 i 1 • 1 • ■. 1 ,. .for valtio 
 
 would no (loui)t 1)0 void aganist a sul)St'(iuciil purclinscr l(»r valut; widiin tlio 
 if there was any actual fraud of which the lirst grantee I'f^^l Tlly fr'amlu-'"' 
 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 (;;). 
 
 A conveyance for good consideration may, under some cir- Conveynnco 
 cumstances, be constructively fraudulent against a subsequent constmciivcly 
 purchaser. frauJulcut. 
 
 In Pcrry-Hcrrich v. Atiioood (o) A. voluntarily gave to his PcrrnITcnick 
 . PI T J 1 1 V- Attwood. 
 
 Sisters a mortgage ot real estate to secure an antecedent debt. 
 The sisters allowed him to retain the title deeds tliat he might 1 )e Mortgagees 
 enabled to give a first mortgage to secure another debt, for which dpeJs to facili- 
 he was being sued by B. A. deposited the deeds with 13. to J,';*^J"y'""^ 
 secure that debt, and afterwards, without B.'s concurrence, got postponed, 
 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 lie post- 
 poned 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 into 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 conveyance being voluntary ; the 
 
 (m) See ante, pp. 78 et scq., as to tlic 449; CoJi/er v. Finch, 5 H. L. C. 905; 
 
 similar clause in 13 Eliz. c. 5. Finch v. Shaw, 19 Beav. 500, 511 ; and 
 
 (tc) See Fcrrnor's Case, 3 Eep. 78 a, other cases, where a person standing I'y 
 
 80 a, Jenk. 254, pi. 45; JWeMv. G'm/o/v/, and suffering a purchaser to purchaso 
 
 2 Eden, 280 ; Gooch's Case, 5 Kep. 00 a ; land to whicli he himself had a claim, 
 
 BiirreVs Case, 6 Eep. 71 b; and see without disclosing his title, has been post- 
 
 Mocatta v. Ilurgatroyd, 1 P. Wms. 393 ; poned to the purchaser. See Dart, \'. & 
 
 Hobbs V. Norton, 1 Vern. 136; Hunsdcn P. 5th ed. 841. 
 
 V. Cheney, 2 Vern. 150 ; Baw v. Pote, 2 (o) 2 De G. & J. 21 ; sec also Uoild v. 
 
 Vern. 239 ; Heivitt v. Loosemorc, 9 Hare, Atticood, 3 De G. & J. C14.
 
 198 CONVEYANCES FOR VALUE : 
 
 Statute spoke only of conveyances made for the purpose of 
 deceiving persons ^vllo should purchase the property, and of con- 
 veyances by the secret intent of the conveying parties to be to 
 their own proper use (p). " If," his Lordship continued, " the in- 
 tention of the parties to the transaction here in question M'as, that 
 the Misses A." (tlie 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." 
 
 riarle V. In the recent case of Clarke v. Pahncr (q) the decision in Fern/- 
 
 Palmer. __ . , ^ ^^^ -^ 
 
 Hcrnck v. Attu-ood (r) was considered and followed by Hall, V.C, 
 
 who there pointed out that the benefit of postponement would 
 
 enure to any subsequent mortgagee who had bona fide advanced 
 
 his money under a mistaken belief as to the • possession of the 
 
 deeds. 
 
 J^rhjfjs V. In Briggs v. Jones (s) a mortgagor of leaseholds obtained 
 
 the lease from his mortgagee for the purpose of shewing it to J., 
 a third person, to olitain money to pay off tlie mortgage. The 
 mortgagee sent the lease, requesting that it might be returned in a 
 few days, and that J. might be informed of his mortgage. But 
 instead 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. 
 
 Crachiall v. In Crachicdl v. Jansou (t) a secret mort^a^e was executed to 
 secure a sum of money long previously advanced 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 execution 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 bona fide 
 mortgage. 
 
 ^p) See J)oc V. Routlahje, 2 Cowp. (.s) L. E. 10 Kq. :t2 ; ami hoc Ihtnter 
 
 H)o; Cadofjan \. KenHett,2 Lowp. 'id2. v. Walters, L. 1!. 7 Ch. 75; WuUhj \. 
 
 (fj) 21 Ch. D. 124. (irai/, L. R. 20 Eq. 228. 
 [rj 2 Def;. &.J. 21. (0 H Ch. D. 1.
 
 WHEN VOID UNDER 27 ELIZ. C. 4. 190 
 
 But where (u) a mortgagee was induced, hy a s])ecious ])rolcxt, ^Y]K•re mori- 
 to allow the mortgagor to take the original lease for a short time, posTpouca. 
 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 (r) a tenant fur life of certain lands, with power iA rhlppuwEn- 
 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 
 tliat, if he did do so, the trustees should receive the rents and 
 profits, and apply them, as they might think fit, for tlie mainte- 
 nance of A., or his wife, or children, or issue, the covenant and 
 this proviso were held fraudulent and void against a subsecpieut 
 incumbrance of A.'s life estate without notice. 
 
 Lord Lyndhurst, in affirming the decision of the Vice-Chan- Voluntary 
 cellor, said {iv) the transaction could not be sustained. A. having tdcTan-ainst 
 a life interest in certain property, can it be contended that lie can ^'il^^enucnt 
 
 '- ^ '' ' purchasers, 
 
 enter into a covenant — a private deed — with his own trustees thouph not 
 
 fraudulent. 
 
 that he shall not incumber his interest in the property, and that, 
 if he does incumber it — if, for instance, he sells it for A'aluable 
 consideration — the effect is to be that the purchaser shall not be 
 entitled to possess what he has bought, but that A. himself, sul)- 
 ject 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. Tliough admitted on all 
 hands that no fraud was intended, the transaction is in its very 
 nature fraudulent. Though the parties had no fraud in \\q\\ the 
 deeds themselves are fraudulent. If the tenant for life procured 
 any person to advance money to him on the security of the i)r()- 
 perty, in that event, and in that event only, was the instrument 
 in question to have operation (r). 
 
 {u) Peter v. BusseU, 1 Eq. Ca. Ab. P. C. 170, where a perpetual injunction 
 
 321, pi. 7. was granted against a somewhat similar 
 
 {v) riiipps V. Ennismorc, 4 Russ. l.'!!. defeasance being used in derogation of a 
 
 («■) 4 Iiuss. 141 ; see ante, p. IW. marriage settlement on wiiich it was a 
 
 {x) See also Wehhcv v. Farmer, 4 lire. fraud.
 
 200 PURCHASE IN XAMK 
 
 Turchases in It has been made a question whether a purchase by a man in 
 
 names of third i c i i o p i -i i • c i 
 
 persons, the name and tor the benent or a child, or wife, or other person, 
 
 vrithln^he citlier Solely or jointly with himself, is such a " conveyance, gift, 
 statute. grant, charge, or limitation of uses," as can, if voluntary, be 
 
 avoided by a subsequent purchaser for value from that man (y). 
 
 Barfon v. Ill Bortoii V. Vdnhei/thi'i/sfu (;) the property in question was, 
 
 ten! ^^ "^ ^^y ^ ^^^^^^ reciting li. E. V. had contracted h^r the purchase of 
 it, conveyed directly to trustees, 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 settle- 
 ment of real estate by liim, so as to bring the case within the pro- 
 visions of the statute 27 Eliz. c. 1. 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 \. did not in this case actually acquire the 
 estate, but that it was in efiect nothing more than giving the 
 money to tlio wife and cliildreii, wlio 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 equitable estate, which he then conveyed 
 to the volunteers, and suljsequently to the purchaser ; but unf(jr- 
 tunately did not give any opinion as to the question whether a 
 purchase in the name of a third person is within the statute. 
 
 La/Jy Gorges In ail old caso cited in Croke (a) a man purchased a manor 
 in the name of his daughter, and afterwards kept courts and 
 made leases in his own name and always 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 tliere be some 
 fraud discovered it is not within the statute of 27 Eliz. c. 4, 
 although there be many badges of fraud. This has been cited 
 as shewing that such purchases are not within the statute (h) ; 
 Ijut it was cited as above mentioned for the purpose of shewing 
 that fraud is not to be presumed, and the most it can be taken to 
 go to is, that such a purchase is not within the statute, unless 
 
 (;/) Sug. V. & P. 14tli ed. 70.5, 71.5; (a) Lacli/ Gorge's Case, cited in Crisp 
 
 Drew V. Martin, 2 II. & M. 130-133; v. Pratt, Cro. Car. 550. 
 Dart, V. & V. 5th cd. 037. {h) Su.tr. V. & P. 14th ed. 705 ; Dart, 
 
 {z) 11 Hare, 12G-1'20. V. & P. 5th cd. 937. 
 
 Case.
 
 OF THIRD PERSON. 201 
 
 adi'alli/ firn/ihdcnt. It is liard to sec liow the i)urclinse in that 
 case (M)ul(l liavu been ii])lifl(l ; l)ul, I'ldin ilic scanty veporl, il is 
 impossible to know what were the reasons, or, indeed, whether 
 tlic purchase for the daughter was voluntary as between lier and 
 her father, for it may have been made partly with her money. 
 This seems to be tlu; only decision in favour of the above i)ropo- 
 sition, and, under the circumstances, cannot be considered a satis- 
 factory authority. 
 
 The question can very seldom arise, for, if the title is invest i- Question un- 
 gated, the mode of purchase must appear on the face of it unless ' '^ ^ 
 there is actual fraud ; and it miglit be suggested that the principle 
 on which Barton v. Vanlicythuyscii (c) was decided might be 
 extended to every case of the sort, for every conveyance must, 
 whether it is so recited or not, Ijc founded on a previous agreement But Bcttlor 
 by the payer of the purchase-money, so that he would always cqui?ablc"in- 
 
 convey to the volunteers an equitaljlc interest. And ai)art from l."-"''^''* ^^''"*^'' 
 "^ J- J^ he conveys. 
 
 this, it might be said that if the purchaser buys in the names of 
 children, or trustees for them, that is an advancement for them (d) 
 — a gift, not of the purchase-money, Ijut 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 favour of the real purchaser which 
 he might have insisted on (c), and in this way also he might be 
 said to have had an equitable title, which he conveyed to tlic 
 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, an objection so purely technical may be met 
 by an answer equally technical. 
 
 Something of tliis sort seems to have been in Lord Hardwicke's 
 mind when he said (/) a voluntary conveyance of an estate by 
 one who sells it afterwards is fraudulent, " and tlierefore, in this 
 
 (c) 11 Hare, 12G. (/) In Undemood \. Ilitchcox, 1 Vcs. 
 
 (</) Dyer v. Dyer, 2 Cox, 92, 1 Wat. 280. Sec also (iilb. Lex V. 272, where 
 
 Cop. 21(3, 1 Wh. & Tu. L. C. Gtli ed. it is said, if a man purchases copy- 
 
 236; Sag. V. & P. 14th ed. 701. hold to himself, his wife, and daut;htcrs, 
 
 (e) Ibid, and Sug. Y. & P. 14lli cd. a mortgagee would be entitled, nohnlh- 
 
 703. standing the settlement.
 
 202 
 
 WHAT CONVEYANCES 
 
 Court, if a person, entitled to an estate to liimself and his lieirs, 
 fairs a convci/ancc of an estate so as to put a right in another, 
 tlie Court will consider it fraudulent, upon Avhich kind of equity 
 tlie Court has trone." 
 
 Actual fraud. In cases of actual fraud, it is conceived, the statute would 
 undoubtedly apply to such purchases ((/). 
 
 Lapse of time. It seems that great lapse of time hetwoen the voluntary settle- 
 ment and the sale to a purchaser will not of 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 (Q. 
 
 Estoppel. Of course the doctrine of estoppel, wliich might prevail as 
 
 between the voluntary grantor and the person who derives title 
 under the voluntary conveyance, cannot bind those wdio claim 
 from the former by a subsequent purchase for value, and conse- 
 quently derive title under the statute itself (k). 
 
 Deed void _ A Conveyance in tail, though void under 27 Eliz. c. -l, has been 
 
 under 27 Eliz. tit,,,™ 
 
 c. 4, may be a held to be a l)reach ot covenant not to assign for more than the 
 c'oZ'J. oovcuantor's life {!). 
 
 All kinds of Every kind of instrument whereby a subsequent purchaser of 
 
 con vcy3.nc6S 
 
 within the the land is defrauded is within the meaning of the statute (m). 
 
 fctatute. 
 
 yhat propeiiij Tlie statute 27 Eliz. c. 4, applies only to real property and 
 
 is included in . 
 
 27 Eliz. c. 4. interests in land. By the 2nd section it is enacted that " All and 
 every conveyance, grant, charge, lease, estate, incumbrance, and 
 limitation of use or uses, of, in, or out of any laiids, tenements, or 
 other hercditetmcnts whatsoever," made for the intent to defraud 
 
 (g) LcuJji Gorgets Case, cited Cro. Car. ITogldov, 15 Beav. 316-7 ; FarJccr v. 
 
 550; BuUoclcv. Thome, Y. Moo. G15-G; Serjeant, Ymch, 146. 
 post, p. 214. (;■) IToghton v. Jlogliton, 15 Beav. 316- 
 
 (h) Alden v. Grrgorj/, 2 Ed. 280; 317 ; 3 & 4 Will. 4, c. 27, ss. 26, 27. 
 Willats V. Bmhj, 12 L. J. Cb. 105, (/,) Craclcnall v. Janson, 11 Ch. D., 
 
 in which specific performance was pjranted per Fry, «T., 11. 
 to a purchaser avoiding a settlement (/) Geweny. lioU, Cro. Aac. 132. 
 
 made twenty-two years before. But see (m) See Pliq^ps v. Enninmore, 4 Euss. 
 
 Xunn v. Wihmore, 8 T. R. 521, 520; 131, where a private deed of covenant 
 
 Aitornet/- General V. Corporation of Xor- restraining alienation by a tenant for life 
 
 castle, 12 CI. & F. 402 ; Hoghton v, was held void against a subsequent 
 
 alienee of his life estate ; supra.
 
 ARE WITHIN 27 ELIZ. c. 4. 203 
 
 those who " shall afterwards pureliasu in foe simple, fee tail, for 
 life, lives, or years, the same lands, teuements, or hereditaments, 
 or any part or parcel thereof," &c., "or to defraud and deceive 
 such as have or shall purchase any rent, profit, or commoihty in 
 or out of the same," shall he void against such subsequent pur- 
 chasers. 
 
 These general words are sufficient to include every kind <jf All kind of 
 interest in land, whether legal or erpiitable {n), corporeal or in- ^u^nd^^ '" 
 corporeal; and we accordingly find that chattels real or lease- 
 holds (o), advowsons {p), and rent-charges {(j), or annuities (r) 
 issuing out of land, are within the statute. 
 
 And it seems that timber is so also. In an old case (.<;) in Timber, 
 trespass, defendant proved articles by which Sir It. 11. (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 
 It. H. died, and the purchaser, within the time, took tlie trees. 
 The heir in tail of Sir E. H. brought trespass, and proved that 
 his father was only tenant in tail, but this was a vuluntary 
 settlement of his own, and the judge held clearly that this sale, 
 being proved to be for a valuable consideration, Ijound the heir, 
 being within 27 Eliz. c. 4, and besides, the settlement was with 
 a power of revocation. 
 
 And as the word " land " includes mines (^), a grant of Minerals, 
 minerals would probably be within the operation of the statute. 
 
 There was some doubt at one time as to copyholds. In Doc Extends to 
 V. Routlcdgc (u) Lord Mansfield expressed an opinion that they ^°^^ 
 were included, and, w^ondering that the point had not been 
 decided, thought it must have been taken for granted that they 
 were ; but it was not until the comparatively recent case of 
 
 (n) Bartony. Ytoihcrjtlanjsen,!! Ware, 12(3, 134. 
 
 (o) Co. Lit. 3 b ; Uurrel's Case, G (/-) J'uultoii v. Wiseman, Noy. 105. 
 
 Eep. 72 a ; et post, p. 238 ; Oxley v. Lee, (s) JIulton v. Xeal, B. N. T. 90 a, 
 
 1 Atk. 624 ; Fricc v. Jenkins, 5 Cli. D. S. C. ibid. 2(31 a ; Carson v. JJladall, 
 
 619. Toth. 257; 22 Yin. Abr. 21, tit. Vol. 
 
 (p) mil V. Bishoj) of Exeter, 2 Taunt. Conv. D. 2. 
 69 ; et post, p. 220. (t) JShcp. Toiicli. 00 ; Campbell v. 
 
 (q) Garth v. Ersfield, J. BriJg. 22, Leach, 2 Arab. 74i», 748. 
 cited in 11 Hare, 132. (u) 2 Cowp. 7U5.
 
 204 WHAT CONVEYAXCES 
 
 Doc V. Bottricll (r), followed and approved by the ^Master of the 
 Polls in Currk v. Nind (ir), that it was settled that copyholds 
 are within the " lands, tenements, and hereditaments " men- 
 tioned in the statute (.r). This decision followed the general 
 rule laid down in Hcydons 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, 
 service, tenure, or custom of the manor, there many times copy- 
 hold and customary estates are within the general purview of such 
 Acts." 
 
 Docs not in- ^^^^ statute docs not apply to personal properly, except 
 
 elude j^ersonal chattels real (~). So an assicrnment of a sum of monev charged 
 propertj. ^ ' '^ jo 
 
 on land and secured by a term for years is not within it (a). 
 
 A voluntary settlement of personal property is therefore good 
 against a subsequent purchaser (h). For by the common law an 
 estate made by fraud could be avoided only by him who had a 
 former right, title, interest, debt, or demand (c) ; and consequently 
 the purchaser, not having the protection of tlie statute, cannot 
 have a better title than the settlor from whom he purchased (d). 
 
 Extends to This statute extends to conveyances to the sovereign (r) ; for 
 
 t e ving. though not in general bound by an Act of Parliament where 
 not expressly mentioned, the King shall not Ije exempted by 
 construction of law out of the general words of Acts made to 
 suppress wrong, because lie is the fountain of justice and 
 common right, and the King, being God's lieutenant, cannot do a 
 wrong (/). 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 
 
 (r) 5 B. & Ad. 131, 13G. (a) McCllntock v. Ashe, 2 Law Ecc. 
 
 (ic) 1 My, & Cr. 17; but see Bui. (N..S.) 45. 
 N. P. 108. {h) Jones v. Crouchcr, 1 8. & 8. 315 ; 
 
 (x) Jietpier v. Poicel, 2 Brownl. 70. Shane v. Cadogan, Sug. V. & P. 7th, 
 
 (y) 3 Ecp. 7 a, 8 a; Co. Copyholder, 8tli, 9th, 10th, and 11th eds. app. No. 24. 
 151. (r) Upton V. Jkissrt, mentioned in 
 
 {z) Meek V. Kettlewell, 1 Hare, 4G4, Ta-ync's Case, 3 licp. S3 ; Yin. Abr. vol. 
 
 473 ; Bill v. Curetou, 2 My. & K. 503, 13, p. 527. 
 
 512; Barton \. VanJieythut/scn, 11 Hare, (d) Bdl\. f'urcton, 2 My. & K. 512. 
 
 120, 132; Ashe v. Lov^, 1 Law (e) 3faf/dalen College Case, 11 I\ep. 
 
 ]Jec. (N.S.) 145; see also Kekcwich v. 66 b, 74 a, b. 
 
 Munnincj, 1 D. M. & G. 176; ante, (/) Magdalen College Case, 11 Bep. 
 
 p 203. 72 a.
 
 ARE WITHIN 27 ELIZ. ('. 4. 205 
 
 a purcliascr from the tenant in tail, for the Crown cannot be an 
 instrument of fraud and deceit : " Eb cum sit autlior juris, noii 
 debet inde injuriarum nasci occasio, undo jura uaseuutur " (y). 
 
 It has been doubted whether a ])urchascr for vahiable con- 'novcrsion 
 
 • 1,. • 1 1 J ,. ..« alter estato 
 
 sideration can avoid a voluntary conveyance of a reversion in fee, tail. 
 it being, at the time of tlie conveyance, a dry reversion in fee 
 expectant on an estate tail and of no value, being barrablu 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 
 afterwards 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 conveyance to Voluntary 
 a purchaser of lands previously given to a j9?<&/ic charity (/.) is toa;wt"/c° 
 or is not within the statute. There is certainly a difference '='{'»"|y 
 
 •' wlietlier 
 
 between a voluntary conveyance to a miblic charity and a gift to a within tho 
 
 statute. 
 
 friend or relation ; the idea of any benefit to the donor is pre- 
 cluded, and the presumption of fraud is rebutted by the nature 
 of the gift. 
 
 East GrinstccuVs Case (I) is said to have decided (m) that such 
 a voluntary gift is good against a purchaser without cxjircss 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 after- 
 wards sold for valuable consideration to one that had notice of 
 the rent, yet the rent reraaineth, for that the purchase was of 
 another thing that was not given to the charitable use (n). 
 
 But in Tothill (o) the same case {y) seems to be referred to 
 to shew that a purchaser coming without notice of a rent-charge 
 
 {(j) Magdalen Collecje Case, 11 Eop. (/) See ante, p. 14. 
 
 74 a, b; see also Wiseman's Case, 2 (k) See stat. 43 Eliz. c. 4, s. 1. 
 
 Eep. 15; CJwlmley's Case,2 Rep. 51,52; (/) Duke (cd. 1070), 04. 
 
 2 Roll. ALr. 393 ; Sug. V. & P. 14tli cd. (m) PI. 5, Rob. Fraud. Con. 430. 
 
 713; Wisemany. Barnard, F. Moo. 195. (h) See post, p. 234. 
 
 See Hardcastle, Stat. 180, 188. (o) Ed. 1071, p. 258. 
 
 (/i) Bucldey v. Arnold, 2 Eq. C. Ab. {p) As Maynard v. Fanpcrcs dc East 
 
 752 ; Yin. Abr. tit. Voluntary Convey- Greensted. 
 ances, (c), ca. 10.
 
 206 
 
 GIFT TO CHARITY 
 
 Statute of 
 Charitable 
 Uses. 
 
 Notice. 
 
 sliall not be chargeable therewith, although given to a charitable 
 use (ij). This is what was provided by the Statute of Charitable 
 Uses (/•), by which, moreover, the commissioners were empowered 
 to " make decrees and orders for recompense to be made by any 
 person who, being put in trust or having notice of the charitable 
 uses, shall break the same trust or defraud the same uses by any 
 conveyance, gift, grant," &:c. 
 
 A purchaser without notice from a purchaser with legal notice 
 is said to be bound by the notice of his vendor (s) ; and a con- 
 sideration of doubtful or inadequate worth, or a mixed considera- 
 tion, as money and natural affection, or even the consideration 
 of marriage, is not a sufficient consideration to avail against a 
 cliarity, even without notice (/). 
 
 Attorney- In TJic Attomcy-Gcncral v. Corporation of NcK-casth (u) a cor- 
 
 Corporatlon poratiou Voluntarily founded an hospital (r), and by their direction 
 estates purchased l)y them were conveyed direct from tlie vendor 
 to the hospital, but were subsequently managed by them. The 
 corporation afterwards sold the property for valuable considera- 
 tion, giving the purchasers an indemnity, and bought another 
 estate w^ith 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 {n). This; it will 
 be seen, does not establish that a voluntary conveyance to a 2nihlic 
 charity may not be defeated by a subsequent sale (?r) for value, 
 and tlie question has since been spoken of as undecided (ce). 
 
 Question un 
 settled. 
 
 Prircife 
 charities. 
 
 Whatever favour may be allowed to such conveyances to 
 charities can only attach to them as being imUic charities {y), and 
 for the reason that such institutions arc, under certain restrictions, 
 
 {q) Duke, by Br. C38-9. 
 
 (r) 43 Eliz. c. 4, 8. 0. 
 
 («) Duke, 159; ibid, (by Bridg.) G3S ; 
 Shelf. Mortm, 209. 
 
 (0 Duke, 177. 
 
 («) 5 Beav. 307, 8. C. 12 CI. & F. 402. 
 
 \v) Under .39 Eliz. c. 5. 
 
 {w) Sug. V. &. P. Htbed. 719; and 
 Bee Dart, Y. & P. 5tb 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. 5G8 ; IG & 17 
 Vict. 0. 137 ; 18 & 19 Vict. c. 124, s. 48 ; 
 23 & 24 Vict. c. 134, s. 8 ; Williams v. 
 Kershaw, 5 CI. & F. Ill ; Atterrney-Gen- 
 eral v. J'Msthile, 11 Ilarc, 205, 219-20; 
 Dolan V. JJacJJcrmot, L. 11. 3 Cb. 67G.
 
 APPLICATION OF PURCHASE-MONEY. 207 
 
 to be supported on grounds of public policy ; and that a convey- 
 ance to them is of a public nature and irrcvocalile, precluding any 
 idea of benefit retained by the donor, or fraud intended a'-'ainst 
 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 ap[)lied to ordinary voluntary convey- 
 ances (z). 
 
 When a voluntary settlement is set aside under 27 Eliz. c. 4. an Applicatii.u of 
 important question arises — namely, whether the purchase-money }|,o'ne " wiiun 
 is to be paid to the vendor or to be handed over to the persons «»--|"<-'inent set 
 
 ^ aside. 
 
 entitled under the voluntary settlement. 
 
 It has always been laid down that a voluntary settlement is 
 good between the parties, although void against a iiurchasor ; 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 voluntary 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 Formerly 
 of the volunteer, except Ferrars v. Chrrv}/ (h). The authority of 5i,lu;ti"r8'° 
 this last case was expressly disputed by Lord Hardwicke (c), who Where at least 
 said (d) : " There is no instance where a voluntary conveyance, if covenan'rto 
 afterwards defeated by sale for valuable consideration, that a *''''^ '-'^'^'-''• 
 satisfaction 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 tliat case what he con- 
 sidered such a covenant, he decreed the volunteers entitled to the 
 purchase-money wdth interest. 
 
 But in Evelyn v. Templar {c), where there was a covenant Ijy Butnotso 
 the settlor in a post-nuptial settlement much stronger than the 
 common case — viz., that, if lie did sell, the money to be raised by 
 the sale should be paid to the trustees, and that he would settle 
 the purchase-money to the same uses — Lord Thurlow decided that 
 
 {z) See Hinton v. Toije, 1 Atk. 4i35. 
 
 (a) 1 Ch. Eep. 78. The decree is (c) In Senhnuse v. Earle, Amb. 289. 
 
 given in full in Toit!He«£Z V. Taker, L. 11. (d) in Williamson v. ('"Jrnnjtoii, 
 
 1 Ch. 4G1. Ves. olG. 
 
 (Z>) 2 Vern. 383. (0 2 Bro. C. C. 148.
 
 208 
 
 CONVEYANCE HOW FAR AVOIDED 
 
 Settlement 
 ■wholly de- 
 feated by sub- 
 sequent sale ; 
 
 but displaced 
 only so far as 
 necessary 
 
 the purchaser was not affected by notice of this covenant in the 
 vohmtary settlement. In that case the volunteers filed a hill 
 against the purchaser for misapplication of the purchase-money, 
 M-hich 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 (/) : " Eecollecting the struggle of late against 
 the doctrine upon the construction 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 Townencl v. Tolccr {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 opinion, 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 voluntary 
 settlement is entirely defeated by the sale for valuable considera- 
 tion of the same property ; and is then nothing more than a piece 
 of waste parchment (/.•). The wdiole thing is destroyed as soon 
 as the property is sold ; but the result is the same as if the 
 voluntary conveyance 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 invalidates 
 such settlement only to the extent of the interest of the mortgagee 
 or purchaser. It leaves all those who were interested under the 
 
 (/) In Fulvertoft v. I'ulvcrtoft, 18 
 Ves. 91 ; and sec Buclde v. Mitchell, 18 
 Ves. 100. 
 
 (//) Dahtof/ V. Whimper, 2G Beav. 
 568 ; Townend v. Toher, L. l\. 1 Cli. 
 460, 4G1 ; In re Walhampton Estate, 
 20 Ch. D. .391. 
 
 (Ji) L. I{, 1 Ch. 4G1. 
 
 (/) 1 Ch. Rep. 78. 
 
 (/.;) Eosherx. Williams, L. E. 20 Eq., 
 per Malins, V.C, 218. 
 
 (/) Daldng v. Wliimper, 26 Beav. 
 568, 570 ; post, pt. vi. cb. i. 
 
 (?ft) Williamson v. C'odrington, 1 Ves, 
 516.
 
 UNDER 27 ELIZ, c. 4. 209 
 
 voluntary settlement in exactly the same position in wliich tlicy to kIvo eiTcct 
 were originally placed when the settlement was executed, except J," Jli*rch2 
 that they are displaced to the extent to wliich the mortgage or 
 purchase displaces them (»). Ro tlie parties interested under a 
 voluntary settlement are entitled to a charge or lien on llie 
 settled property for any permanent improvements made Ity them 
 during their possession (o). 
 
 A mortgagee who has a charge on prf)])erty tlio s\i]iject of a Mortgagee 
 voluntary settlement, and also on other property, cannot consoli- goIiJatV""" 
 date his two securities so as to throw on tlie property the subject securities, 
 of the voluntary settlement any sum not originally charged 
 thereon (j?)- 
 
 Where a voluntary settlement of freeliolds, whicli 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). 
 
 In the same case the subsequent mortgage comprised other lands Securities 
 
 marshal led 
 
 besides those settled, and it was held that the volunteers might in favour of 
 throw the mortgage primarily on the unsettled property (/). 
 
 The 5th section (s) enacts that if any person or persons make Section ;0: 
 
 , . , T •, .■ p Powers of re- 
 
 any conveyance, gift, grant, demise, charge, hmitation ot use or vocation, &c. 
 uses, or assurance of any lands, tenements, or hereditaments, " with 
 any clause, provision, article, or condition of revocation, determi- 
 nation, or alteration, at his or their will or pleasure, of such 
 conveyance," &c., and afterwards " bargain, sell, demise, ga-ant, 
 convey, or charge the same lands, tenements, 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 revoked, &c., 
 according to the power contained in tlie " said secret conveyance," 
 &c., then the said former conveyance, &c., as touching those lands 
 
 («) Croler v. Martm, 1 Bligh (N.S.) (p) Li re Walhampton Estate, 20 
 
 573 ; Dolpliinv. Aylward, L. E. 4 H. L. Ch. D. 391. 
 
 499, 500, 504 ; Li re Walhampton Estate, (q) Hales v. Cox, 1 N. R. 344. 
 
 26 Ch. D. 391. ('■) See, as to marshalling against 
 
 (o) Story, Eq. Jur. 12th ed. vol. 2, ss. volunteers, JJolj^ihin v. Aylward, L. R. 4 
 
 1237, 1239 ; Stepney v. Bkldulph, 13 W. 11. H. L. 480, 500-1 ; et post, pt. vi. ch i. 
 
 570 ; Trevelyan v. White, 1 Beav. 588. (•") 27 Eliz. c. 4 ; Appcndi-K No. H. 
 
 P
 
 210 POWERS OF REVOCATION: 
 
 shall be void, frustrate, and of none effect against the purchaser 
 or any persons claiming under him. 
 
 Evidence. It must be observed that the effect of the statute is to make 
 
 the existence of a power of revocation " at his or tlieir will or 
 pleasure" evidence of an attempt to defraud a subsequent purchaser ; 
 and therefore that, where it is not limited in any respect, a sub- 
 sequent purchaser upon a sale under the statute need not prove 
 its execution unless lie chooses to take under the settlement. 
 
 Tower to be The power of revocation may be exerciseable at any time, or it 
 
 may be only exerciseable at a future date, or within a fixed period. 
 
 exercised at 
 any time. 
 
 In cases where the power can be exercised at any time, it has 
 been decided that it makes no difference whether the first convey- 
 ance, containing a power of revocation, was for valuable (t) or 
 meritorious consideration (u), or merely voluntary ; the mere 
 fact of the first conveyance containing a power of revocation is 
 a fraud apparent within the statute (v). 
 
 Power to be It was resolved in Standen v. Bullock (ic) that where a man 
 
 CXGrClSGQ tit ^ 
 
 future date, made a voluntary settlement with a power of revocation at a 
 future time, as after such feast or after 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 said first conveyance not by him 
 revoked," &c., which seems by the literal sense to be intended of 
 a present power of revocation, for no revocation 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 l)ona fide for valuable consideration ; 
 and if other construction were made the said Act would serve 
 for little or no purpose, and it would 1je no difficult matter to 
 evade it. 
 
 (0 Buller V. WatcrJiousr, Th. Jo. 94, (w) 3 Pep. 82 b ; see infra, p. 214, 
 
 3 Keb. 751 ; Huiujerfordx. Earle, Freeni. where a translation of this case, reported 
 
 Cli. 120. as Bulloch v. Thome in F. Moo. CU, is 
 
 (v) Cross \.FaustendUch,ilro.iaiC.\HO. jjiven in full; Garth v. Ersjield, .1. 
 
 {v) Tyre v. Lyttleton, 2 Brcwnl. 187, Bridg. 23; case of 8t. Saviour's, 6mth- 
 
 190- itari:, Laue, 22.
 
 WHEN WITHIN 27 ELIZ. C. 4. 211 
 
 It is observable that in this case the lirst settlement was volun- 
 tary, and it is suljmitted tliat if it Imd been supported by a valuable 
 consideration it would have been good against tlie subsetiuent 
 purchaser until the event happened and tlie power of revocation 
 came into force (x). 
 
 If the power can only 1)0 exercised wiLliin a fixed period, 
 a settlement made after that periud cannot on that account be 
 sot aside as fraudulent. 
 
 It was also resolved in Standcn v. Bulloch (//) that if a man, Kxtinguisliing 
 having a power of revocation, by a conveyance to a stranger ^'°tion "^ "^'^^ 
 extinguishes his power, with intent to defraud a purchaser, and 
 then sells the land for valuable consideration, the purchaser shall 
 enjoy the land ; for as to him the conveyance by wliich the con- 
 dition was extinct was void by the said Act. 
 
 This principle must of course be confined to cases where the 
 settlement was voluntary and the extinguishment of the power 
 was fraudulent or voluntary ; for if such settlement and extinguish- 
 ment were bona fide, and not voluntary, it would be good against 
 the subsequent purchaser (2) ; 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 pur- 
 chasers, extends to the clause referring to powers of revocation," 
 
 This, it is submitted,- will also be the case if the settlement be 
 for value, but the extinguishment of the power a voluntary one 
 of which the purchaser had notice. 
 
 It was also said in Twi/ncs Case (a) that if A. had reserved to Tower to 
 himself a power of revocation with the assent of 13., and afterwards assent. 
 A. bargained and sold the land to another, this bargain and sale 
 is good and within the remedy of the said Act, for otherwise the 
 good provision of the Act, by a small addition and evil intention, 
 would be defeated. 
 
 The statute, however, only speaks of powers of revocation " at 
 his or their will or pleasure," so that where the power is exer- 
 
 (x) 3 Eep. 82 b ; Sug. V. & P. 14th the power of revocation Wvis limitcJ by a 
 
 ed. 722 ; Dart, V. & P. 5th ed. 903. subsequent agreement. 
 
 (y) 3 Rep. 83 a, (a) 3 Eep. 82 b, 
 (z) See Leif/h v. Winter, infra, where 
 
 r 2
 
 212 POWERS OF REVOCATION: 
 
 ciseable with tlie consent of trustees of the grantor's own volun- 
 tary 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 
 settlement at will, the Act applies (c) ; whereas, if the power of 
 revocation is subject to the bona fide consent of a third person 
 or persons it is different (d). 
 
 Leigh v. Thus, in the old case of Zcif/h v. Winter (e), Sir F. Leigh 
 
 conveyed certain manors and tenements to the 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. After- 
 wards, by an indenture 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 exercise 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 exercised without 
 that consent. 
 
 Banhury's So where (/) Lord Banbury made a voluntary lease for ninety- 
 
 nine years, in trust for raising £G000 for his 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 tliat may be supposed to be at his com- 
 mand, it will be fraudulent ; but if it be with the consent of 
 others, as here it was of the wife's friends, who cannot be sup- 
 posed to consent but on very good grounds, there it will not be 
 fraudulent. 
 
 Power onlj to The powcr of revocation may also be exerciseable only by will, 
 ly ^.jll in M'hich case the settlement will be void only from the date of 
 
 the settlor's death as against a subsequent purchaser {g). 
 
 Power to sell A power enabling the settlors to revoke the uses of a settlement, 
 
 and purchase i j.u j. . i n i 
 
 other lands on ^^^^ the trustccs to scll tlic cstatc and convey it to a purchaser so 
 
 (6) Griffin v. Stanhope, Cro. Jac. 454. (e) W. Jo. 411. 
 
 (c) Lavender v. Blukstone, 2 i.ev. (/) Lord Banhurifs Case, Freem. 
 
 140. Cli. 8, 9. 
 
 {d) See I^ord Banhury^s Case, infra, {(/) Chance Powers, vol.2, 1G7; Adney 
 
 and BuHer v. Waterhousc, 3 Keb. 751. v, JucU, Amb. 054. 
 
 same trusts.
 
 WHEN WITHIN 27 ELIZ. C. 4. 213 
 
 as the purchase-money shoukl be paid to tlie trustees and not the 
 settlors, and invested in the purcliase of other hinds to be settled 
 to the same uses, is not a power of revocation within tlie 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 wlio 
 paid the money to the settlors and not the trustees, tlic money 
 not being laid out in the purchase of otlier lands, was not a revo- 
 cation under the settlement nor such a sale as would avoid tlic 
 settlement, which was in consideration of marriage (/<). And so, 
 also, a grant of an annuity with a power of revocation, provided 
 another annuity as good was settled, has been hold notwitliiii 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). 
 
 The last proposition, however, is opposed to tlie authority of Revocation on 
 Griffin v. Stanhope (k), wliere the Court held a condition in a lease, trifling sum. 
 that it should be void on a jointure being made, was not a power 
 of revocation within the statute, and took this dijBference : 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 payment must be a fair 
 equivalent, and then it will stand against a purchaser. 
 
 Even a settlement with an express power of revocation can- Only a " pur- 
 
 • 1 1 1 T<- 1 1 1 chasrr" can 
 
 not be avoided except by a person proi^erly qualmed under the avoid ; 
 statute (/) ; but a revocable deed has been held void against a 
 subsequent judgment creditor (m). 
 
 Even a voluntary deed, witli jjower of revocation, is only void and only s'l 
 
 • 1 , ■ "^ far as mn s- 
 
 agamst a subsequent purchaser so lar as it breaks in up(in Ins gar)-, 
 rights, so that a subsequent lease to another person (/;), or a 
 mortgage, is only a revocation ])ro tanto (o). 
 
 (h) Doe d. WilUs V. Mai-Hn, 4 T. 1!. Tarhach v. Jfarhuri/, 2 Vern. 510, 1 Eq. 
 
 39. ( 'm. Ab. 148 ; but see post, pp. 224 et seq. ; 
 
 (i) Lord Banhun/s Case, Freeni. s\nd Jieavan y. Earl of Oj/ord, 6 D. M. 
 
 Ch. 8, 9. & G. 492. 
 
 (k) Cro. .lac. 454. («) Cohe v. BttUod; Cw. Jac. 49. 
 
 (l) Parker v. /Serjeant, Find), 140, (o) Perkins v. WalLer, 1 Vcrn. 97; 
 
 148; post, pp. 217 et seq. Thome v. Thome, 1 Vein. 141. 
 
 (m) Garth v. Jirspdd, J. BiiJjr. '-'2;
 
 214 POWERS OF REVOCATION: 
 
 But it seems to have been decided in an old case (j>) that 
 wliere 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 pur- 
 chaser's interest had ceased by the condition being broken. 
 
 A power to charge a sum certain is not a power of revocation 
 within the statute (7) ; but a power to mortgage 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 (5). 
 
 BuUoch V. It may be useful to give liere a statement of the oLl case of 
 
 Bulloch V. Thome (/), in which many points on this subject were 
 discussed. 
 
 T. B., being seised in fee or fee tail in 28 Eliz., bargained and 
 sold and sufl'ered a common recovery, the uses being declared ]iy 
 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, 
 witli a power of revocation at the will of T. B. by a decharation 
 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 
 £iOOO. 
 
 In 3G Eliz., T. B. died, and A. B. entered and made a lease 
 to the plaintifl's, who brought ejectment against the defendant, 
 claiming under Standen, the purchaser. The fj^uestion 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 {a) ; and the 
 second objection was (T. B, having, between the dates of the first 
 Tower bus- recovery and the sale, made a lease of part of the lauds and 
 fease! ^ levied a fine), that by this lease the power of revocation was 
 
 (/?) Dame Everts Case, 2 Koll. IIcp. nil; wliicli, however, was a decision on 
 
 34-5. the i:j KHz. c. o. 
 
 (q) JenJcins v. Kcijmi.^, 1 Lev, 150, (s) Lavender v. PAahstonc, 1 Lev. IIG. 
 
 Hard. .395. {t) Y. Moo. 015. 
 
 (r) See Tarhack v. Marhunj, 2 Vcrn. (m) See post, p. 242.
 
 WEIEN WITHIN 27 ELIZ. C. 4. 215 
 
 suspended, and by the fine quite extinct, and tliat as lie covUl not 
 have exercised it then, it was not within the statute. 
 
 But the whole Court held this contrary to tlie words and 
 intention of the Act — to the words mentioning, first a convey- 
 ance, &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 tlie 
 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 afterwards 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 conveyance 
 "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 £1000 of a purchaser, and 
 yet that the purchaser should lose tlie 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 operation of the statute ; 
 because when the power is determined 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 witli 
 power of revocation, ^kc., the conveyance shall be void ; and to 
 construe the statute that the conveyance would be good against 
 the purchaser if the power of revocation was determined before 
 the purchase, would be to make nourishment and not suppression 
 for fraud. Because then the vendor could make a secret release 
 of the powers, or secret feoffment, of whiih the purchaser could 
 not have notice, and vet he would be able to shew to the pur-
 
 216 rOWERS OF REVOCATION. 
 
 chaser the conveyance, mentioning the power of revocation by 
 whicli 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 all equity and reason ; and therefore they all thought 
 that if the power of revocation is mentioned in the deed of con- 
 veyance, let it be determined or not by that mesne act, yet the 
 conveyance wnll be void against the purchaser. Walmesley, J., 
 was clearly of opinion that a lease for years made by one who 
 had power of revocation 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. 13. could have revoked as to the rever- 
 sion, and cited a case adjudged in the King's Bench, temp. Wray, 
 C.J., that where one makes a conveyance 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, and yet 
 at the time of the purchase the vendor could not have revoked ; 
 but the reason was, that in the former conveyance 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 revocation at 
 that time by express agreement. And they also all agreed that 
 if a person had a power of revocation entire, as in tlic 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 docs not 
 extinguish it.
 
 CHAPTER II. 
 
 WHAT PEFvSONS ARE EXTITLKD TO RELIEF AS rURCUASERS 
 WITHIN 27 ELIZ. C. 4. 
 
 The statute 27 Eliz. c. 4, s. 2, declares " Tliat all and every con- 27 KHz. c. i, 
 
 ,1 oil 1 n 1 • T r makes void 
 
 veyance, grant, charge, eVc., had or made ior the intent and of conveyances 
 purpose to defraud and deceive such person or persons, bodies g^ibscmicnt 
 politic or corporate, as have purchased or shall afterwards 7)^/?Y/io.s<!, P"''^'"'^*^""'^ 
 
 ■■^ ^ ^ ^ the 8amo 
 
 in fee simple, fee tail for life, lives, or years, the same lands, lands, 
 tenements, 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 commodity in or out of the same or 
 any part thereof, sliall be deemed and taken only as against that 
 IKvson, &c., his and their heirs, &c., and against all and every other 
 person and persons lawfully having or claiming by, from, or under 
 them or any of them which have purchased, or shall hereafter so 
 purchase for money or other good consideration, the same lands, 
 &c., to be utterly 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 (f). 
 
 The statute refers only to purchasers for money or other Who arc en- 
 
 . ,.1,1 ■ titled to tl.o 
 
 good consideration; the question of indebtedness or not is benefit of tho 
 
 immaterial (lo) ; in order to acquire a right to the protection ^J*^"'*^- 
 
 ^ ^ ' ^ ^ _ How to be 
 
 of the statute the purchaser must be qualified in a certain way. qualified. 
 Although, if there is any valuable consideration for a settle- 
 ment, the cjuantuin of such a consideration is of no consequence 
 
 (y) See Ex parte JliUman, 10 Ch. D. [ir) Lord Ton-nshend v. Wlndhnw,2 
 
 625. Ves. lU, ante, pp. Ti ct seq.
 
 218 
 
 WHO ARE PURCHASERS 
 
 under the statute (x) so long as there is anything in the shape 
 of consideration ^Yhich can be called value (_y) ; still, it does 
 not follow because a man lias 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. 
 
 T'pion 
 Basset 
 
 In U2-)ton v. Basset (c) " it was resolved that no purchaser 
 should avoid a precedent conveyance made by fraud and covin 
 but he who is a purchaser for money or other valualjle con- 
 sideration." Consideration of blood, natural affection, or the 
 like, will not do {a) ; and it was also agreed (l) tliat the statute 
 M'ould not help a purchaser unless he came to the land, not 
 Lawfully and only on valuable consideration, but also " lawfully and without 
 fraud or deceit." The principle thus laid down has been ever 
 since adhered to, and it seems that in order to entitle a man to 
 the privileges of " a purchaser " under this statute the price he 
 paid must not be so inadequate as to induce the belief that the 
 sale was not bona fide, but was a mere contrivance to "et rid of 
 the first settlement and make another, which was, in truth, also 
 voluntary ; for if it is merely colourable it will not stand (r). 
 
 He must be a 
 purchaser for 
 valuable con- 
 sideration. 
 
 bona fide. 
 
 Colourable 
 purchase no 
 good. 
 
 Purchase- 
 money or 
 mortgage- 
 money must 
 be really 
 paid. 
 
 If it is shewn that the consideration stated to have been paid 
 was not reaUy and bona fide paid, or was afterwards returned, 
 such a sale will not be allowed to override a prior conveyance, 
 although voluntary {d). But the vendor's giving back part of the 
 purchase-money to the purchaser's family does not invalidate the 
 sale, for that might have been altered {c). So 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 evidence of this cannot be given by 
 
 {x) Price v. Jenkins, 5 Ch. D. G21. 
 
 (.(/) Bayspoole v. Collins, L. R. G Ch. 
 232 ; Jyi re Foster and Lister, G t.'h. 1). 
 89, 
 
 (z) 3 Rep. 83 a; ante, p. 188. 
 
 (fi) 3 Rep. 83 a ; Dame Burr/^s Case, 
 F. Moo. 002, 003 ; Lessee of Bonny v. 
 Griffith, Hayes, 115. 
 
 {b) In Nedham v. Beaumont, cited 3 
 Rep. 83 b. 
 
 (c) Doe V. Boutledge, 2 Cowp. 70.5, 
 712 ; et ante, p. 189; Bulloch v. Sadlirr, 
 Amb. 704; Doc v. James, 16 East, 212; 
 
 mil V. Bishop of Exeter, 2 Taunt. 69 ; 
 Doe V. Bowe, 4 Ring. N. C. 737 ; Pcrsse 
 V. J'ersse, 7 CI. & F. 321; Metcalfe v. 
 J'ulvcrtoft, 1 Ves. & B. 180, 184 ; Doe v. 
 ^Fanning, 9 East, 59; Doe v. Martyr, 1 
 V>. & P. N. R. 332; Dolphin v. Aylward, 
 L. R. 4 H. L. 4,Si;, 499; Bosher v. Wil- 
 liams, L. R. 20 Eq. 218. 
 
 (fZ) Humphreys v. Pensam, 1 Jly. & 
 Cr. 580 ; Boberts v. Williams, 4 Hare, 130. 
 
 (e) Per Lord Ellenborough, in Doe v. 
 James, 16 East, 214. 
 
 (/) Doey. Webber,! \d. &E. 733,740.
 
 WITHIN 27 ELTZ. C. 4. 211) 
 
 the mortgagor after lie has executed the voluntary settlement, 
 for he cannot derogate from the estate he has conveyed (y). 
 
 So if the valual)le consideration he not expressed in tlic deed, 
 evidence is adniissihle to shew that there was consideration, 
 though not appearing on the face of the deed (h) ; but such 
 evidence must be to the utmost extent satisfactory and con- 
 clusive (i). 
 
 On the other hand, a settlement, though voluntary on the 
 face of it and at first void against a purchaser for value, may yet 
 become valid by force of subsequent events (Jc). 
 
 A purchaser in the sense in which the word is used in this 
 statute is one who gives money or other valuable consideration 
 in order to have the land (/). 
 
 There is, of course, no doubt that a mortgagee is a purchaser Mortgagee 
 pro tanto within this statute {m), but a mortgage to secure 
 moneys to be then afterwards advanced 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 (w), or a person who has, by a contract to pur- rurdmRcr of 
 
 / \ • 1 1 i. equitable 
 
 chase, acquired an equitable estate (q), or an equitable mortgagee, estate. 
 by deposit of title deeds (r), is a purchaser. An equitable Equitable 
 mortgagee may in equity establish his title by means of parol ™°'"'fc''''S<^®- 
 evidence, or written documents coupled with parol evidence {^) ; 
 but he cannot, of course, be regarded as a purchaser in an action Not at law. 
 
 (^7) Doe V. Webber, 1 Ad. & E. 733 ; L. R. 4 H. L. 486, 490, 504 ; Crachnall 
 
 and see Lalor v. Lalor, 4 L. E. Ir. 351, v. Janson, 11 Ch. D. 1. 
 S. C. 678. (") ^°<' '^'' '^'^^^^'"i 1 '^^- ^ ■'^• 
 
 {h) Townend v. Tolca; L. R. 1 Ch. 733 ; Myers v. Duke of Leinstcr, 7 Jr. 
 
 459. -El- 15^- 
 
 (0 Levy V. Crelcjldon, 22 W. E. 605. {'A b'mUh v. Garland, 2 Mer. 123, 
 
 f (/c) (7/arie_v^Tra?o«^L. K. 7 E.X. 313; 127. 
 
 JudcT^TG^^^^^JblTj. (N.S.) Ch. 108 ; W) -CwcHc v. MitcMl, 18 ^ cs. 100; 
 
 posf;^r3r4 et seq. ante, p. 193. 
 
 I (/) Dcavan v. The Earl of Oxford, 6 {q) Barton v. Vanheijthn/scn.U Hare, 
 
 De G. M. & CI. at p. 517. 126, 130. But see Jlolford v. lloljord, 
 
 (m) Hand v. Carticrirjlit, 1 Ch. Ca. 59; 1 Ch. Ca. 217. 
 
 Corviick V. Trapaud, 6 Dow, 00; >S'e«- ()•) Lister v. Turner, 5 Hare, 2SI ; 
 
 house V. Earlc, Amb. 289 ; Doe v. Webber, Briggs v. Jones, L. K. 10 Eq. 92. 
 
 1 Ad. &E. 733; Dolphin v. Ayhrard, {s) Ede v. Knowlcs,2 \. Sc C.L'h. 172.
 
 220 WHO ARE rURCnASERS 
 
 Trover. at law, though trover can be maintained for the deeds (/) ; and, 
 
 Purchase with of coiirsc, a person who purchases in trust for, and with the 
 
 money of and 
 
 in trust for money of, another person is a purchaser («). 
 
 other person. 
 
 Mining agree- In ^Shavj \. Sfo.ndish (f) the Court inclined to think that an 
 ™^° * agreement by certain persons with the owner of land to enter 
 
 into partnership with him, and to dig and work mines, and to 
 bear profit and loss in certain proportions, constituted them pur- 
 chasers 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-partnership. 
 
 Release of ad- jj^ jg j^q^; necessary under tlic statute that any money should be 
 
 verse claims a *' ^ </ 
 
 purchase. paid to make a man a purchaser ; the bona fide release of an 
 
 adverse claim to a litigated estate without any money payment 
 is a purchase. " There can be no doubt," said Sir J. Mansfield 
 in Hill V. Bishoj) of Exeter (n:), " 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 reasonalily give 
 money." That case was thus : A. was owner in fee of an 
 advowson, except the next presentation, 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 advow- 
 son by an adverse title, and by way of compromise C. released 
 his rights to A. and B. according to their respective interests 
 (so that A. had the advowson in fee, except the presentation 
 on the then vacancy, which B. had), and then, in consideration 
 of tliis, A. conveyed the then next presentation to C. ; and it was 
 held that tins was a sale for value, and paramount to A.'s prior 
 voluntary gift. 
 
 Lessees, &c., A lesscc at a rack rent (./), with fine or premium paid (ij), or 
 
 purchasers. . . , . , , . 
 
 to secure a sum of money, is a purchaser withm the statute {z), 
 but not a lessee without fine or rent {ei). Lessees are, in fact, 
 within the very words of the statute, which mentions purchases 
 
 (/) Kerrison v. Dorrieii, 9 Ring. Td. Ashton v. Bretland, Mod. 50; Shaw v. 
 
 {u) Ihulton V. Wiseman, Noy, 105; ti'taixUgh, 2 Yera. 327. 
 
 and see Watkins v. *S'<eer<;7i8, Nels. IGO; (;/) Cross v. Faust end itch, Cro. Jac. 
 
 Doe V. Lewis, 11 C. 13. 1035. 180; and Blndc v. Collins, there cited, 
 
 (v) 2 Vern. 326. p. 181. 
 
 (w) 2 Taunt. CO. (z) KayJor v. JMdwln, 1 Ch. Rep. GO. 
 
 (x) Goodrigld v. Moses, 2 W. RI. 1010 ; (a) I'liton v. Jiasset, Cro. Eliz. 444.
 
 WITHIN 27 ELIZ. (.4. 02 1 
 
 " for life, lives, or years." It seems that a surdy to wliom a Surety, 
 lease or conveyance of laud has been made as a security and 
 indemnity to him is a purchaser {h), for indemnity is a valuable 
 consideration {c). 
 
 The assignee of a lease is a ].urchaser witliin ilie statute {d). Assignee of 
 
 IcahC. 
 
 This point seems involved in the decision in I'l-lo' v. Jenkins (r), 
 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. ]n Prm v. 
 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 cove- 
 nants of the lease. A. afterwards contracted to sell tliem to tlie 
 plaintiff. It was held by the Court of Appeal that the assign- 
 ment of leaseholds was for value, and must prevail agaiust tlie 
 subsequent sale, because the trustees came under a responsibility 
 for payment of rent and performance of the covenants of the 
 lease ; it migiit be such a responsibility tliat a lessee might be 
 actually willing to pay money to get rid of. This was followed 
 in Ex parte DoUc{f) by Bacon, V.C., who laid down the prin- 
 ciple that, if no fraud be proved, the assignment of a lease is 
 always for value, whether it contains a covenant for assi'^nment 
 or not. In In re Bldler {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. Jenlins (e) really oidy 
 decided that the grantee's undertaking the liability for rent Avas 
 sufficient to support a settlement, under 27 Eliz. c. 4, whicli was 
 open to no other objection but that of lieing voluntary. 
 
 Settlements or other instruments which are voluntary in their Persons in- 
 
 ,. 1 i.-- , 1 Till teiested under 
 
 creation may, under certain circumstances, become valuable by voluntary 
 subsequent transactions ; as where n. marriage is contracted on ^*^"'<'™^"*' 
 
 T- ' o to wlucli ex 
 
 the faith of a provision for the husband or wife, secured by wliat post facto _ 
 
 consiilerations 
 
 was, at the time of its execution, a voluntary settlement (//); or atiach, not 
 
 purchasers. 
 
 (6) Scot V. Bell, 2 Lev. 70; see also (/) 2(3 "\V. Iv. 407; see comments 
 
 Beverley v. Gatacre, 2 Koll. .'jUo ; White of Hall, V.C, in Troicell v. IShenton, 8 
 
 V. Thornhoroiicjh, Free. Ch. 425. Ch. D. 321. 
 
 (c) Worsley v. JJemattos, 1 Burr. 4(37, {g) 22 Ch. D. 82 ; and sec post, p. 258. 
 
 474, 482. (A) Prodfiers v. Laiif/ham, 1 Sid. 133 ; !; ^^• 
 
 (cZ) Colville V. Parl-er, C'ro. Jac. 158. ante, p. 219; post, pp. 310, 318. 
 
 (e) 5 Ch. D. G19. ' '
 
 222 
 
 WHO ARE PURCHASERS 
 
 •where a voluntary grantee sells to a bonii fide purchaser (i). 
 It can hardly, however, he argued that this principle can he 
 applied so as to make the grantees purchasers within the mean- 
 ing of the statute, and to avoid a prior voluntary deed ; for if a 
 man makes a voluntary settlement, and afterwards another 
 voluntary settlement of the same land, no subsequent con- 
 siderations 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 (/), and ex 
 post facto considerations can only make good that which was 
 merely voidable, and never that M'hich was simply void, in its 
 creation (m). 
 
 j^fairlage con- The Consideration of marriage is sufficient, as we have seen, 
 qualifies as ^^ prevent a conveyance from being voluntary under the statute, 
 purcLaser. j^^-^j jj. q^^q Cg sufficient to make void a prior voluntary or fraudu- 
 lent deed (n). 
 
 Dovglasse v. 
 Ward. 
 
 So where ((v) J. W. made a post-nuptial settlement of land on 
 himself for life, remainder to his first and other sons in tail, and 
 then his wife died without issue, and he, before his second mar- 
 riage, 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 settle- 
 Jointress pur- ment ; and " the Court declared the marriage was a good con- 
 sideration to make the feme a purchaser," and decreed the first 
 settlement to be set aside. 
 
 KusLandpur- Tlic husband is C(iually a purcliaser of his interest where the 
 ronveyaiice to Conveyance in consideration of marriage is to him in fee (^j) ; and 
 
 k-ey 
 liim ill fee. 
 
 (/) George v. M'dhanhc, 9 Yes. 190; 
 post, p. 'i)22. 
 
 (Ic) Clavering v. Clavcring, 2 Vein. 
 473. 
 
 (0 Doe V. Eusham, 17 Q. B. 724; 
 post, p. 32G. ViMi BQQ Beataon v. Lcatson, 
 12 Sim. 281. 
 
 (m) See &ott v. Scott, 4 H. L. C. 10G5. 
 
 (h) Wuthins v. Steevcns, Nels. 100; 
 Douglasae v. Ward, 1 Ch. Ca. 99 ; 
 
 2fatJieivs v. Jones, 2 An.st. 51G ; TPeeue's 
 Case, 2 Vent. .'303 ; J'arlcer v. Serjeant, 
 Finch, 140, 148 ; post, p. 235 ; Croher v. 
 jMartin, 1 Bli. N. K. 573, 588 ; Sug. L. of 
 P. 148; Doe v. Leivis, 11 C. B. 1035, 
 1057 ; but see Allen v. Arme, 1 Vern. 
 305. 
 
 (o) Dovglasse v. Ward, ubi sup. 
 
 (p) 0' Gorman v. Comijn, 2 Scb. & 
 Lcf. 147-8.
 
 WITHIN 27 ELIZ. c. 4. 223 
 
 wliero tliG settlement is on tlie wife and cliildron the children are Children pur- 
 purchasers equally with the wife (7) ; for tlie consideration runs '''"'^"''" 
 through all the limitations to husband, wife, and issue (/•). In 
 cases like Kckcwich v. Manniiuj (.s), wlierc there was a settlement Kekewidi v. 
 on a second marriage of the same property that liad been settled -'^"""'"i'- 
 on the first marriage and the only claimants under Lhc iirst 
 marriage were collaterals, the voluntary limitations in tlie first 
 settlement would, if the property were any interest in land 
 (which there it was not), bo void as against the second. 
 
 It is different where a husband obtained an estate liy the mar- Ilusland was 
 riage, not by virtue of any settlement, but merely by the marriage c7Uruaino 
 itself; for it seems that a husband was not a purchaser of that J"""*^ """"'''■ 
 which came to him jure mariti (/). 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 liy the 27 Eliz. 
 c. i (u). 
 
 By the Married Women's Property Act, 1882 (v), this marital 
 right of the husband has been destroyed ; so that any man wlio 
 marries after 1882 acquires no estate whatever by virtue of 
 marriage itself (20). 
 
 Of course, a person claiming under a post-nuptial settlement fostui que 
 
 . trust under 
 
 IS not a purchaser withni the statute (x) on account of tlie con- post-nuptial 
 sideration of marriage ; and a settlement on the re-celebration whcn'rimr- 
 in England of a Scotch marriage is voluntary (//). But a post- ^'lii^scr. 
 nuptial settlement in pursuance of an ante-nuptial agreement in 
 writing (z), or, under certain circumstances, formerly of a parol 
 agreement before marriage («), or in consideration of an additional 
 
 (q) f'arpenter v. Carpenter, 1 Ycrn. .Tun. 22 ; 1 AVh. & Tu. I.. C. Gtli cd. 
 
 4-4U; IlaucUffe v. Parlnjns, (J Dow. 14'J, 471. 
 209 ; post, p. 33G. (I'j 45 & 4G Vict. c. 75, ss. 2, 5, 25. 
 
 (r) Nairn v. I'rowse, G Yes. 752 ; post, (w) See Griffiths, 5th ed. GO, C7, GS, C9. 
 
 p. 341. (x) See post, pt. v. cli. v. 
 
 (s) 1 D. M. & (x. 17G. (?/) J^r. parte Hall, 1 V. & B. 112 ; see 
 
 (t) Doe ^. Richards \. Lewis, 11 C. B. Adams v. Adams, 8 Ir. Ch. liep. 41 
 
 1035-1057; Collins v. Burton, 5 Jur. Dohhyn \. Adams,! It. Ch.llcT^.VX^. 
 (N.S.) 952, S. C, reversed on other points, (~) Post, pt. v. ch. v. ; Dart, A'. & V. 
 
 4 D. G. & J. G12. But see Lance v. Nor- 5th ed. 894, 805. 
 man, 2 Rep. Ch. [79] 41. («) Bost, pt. v. ch. v. ; but see Crosshi 
 
 (u) See Lance v. Norman, 2 Rep. Cli. v. Elsivortluj, L. R. 12 Eq. 1G4 : Troicell v. 
 
 [79] 41; t^tratlanore \. Lowes, 1 Yes. iihenton, 8 Ch.D. 31S.
 
 224 
 
 ARE JUDGMENT CREDITORS 
 
 portion after marriage, or of a bargain between husband and 
 wife (h), is deemed made for valuable consideration (c). 
 
 Are judgment In the two old cases of Girling v. Loidhcr (d) and Garth v. 
 
 '' purchasers" ^''■ifi^'^'^^ (0 it "^^'^^ held tliat a judgment creditor was a purchaser 
 within this statute. These cases were commented on by Lord 
 Hatherley (then Yice-Chancellor Sir "W. P. Wood) in Barton 
 V. Vaiihcythuyscn (/), and cited l»y him as authorities to decide 
 the point. 
 
 within the 
 statute ? 
 
 Contrary 
 decision. 
 
 JSeavan v. 
 JEarl of Ox- 
 font. 
 
 If these two cases can be said to establish that a judgment 
 creditor is a purchaser within the statute, they are directly 
 opposed to a case decided about the same time, in which there 
 was a voluntary settlement, and subsequent lessees, and also judg- 
 ment creditors ; the settlement was held void against the lessees 
 but good against the judgment debts ([/). The case is reported 
 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 w^as 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 Bravan v. Earl of Oxford (h). The Lord 
 Chancellor said the question was, whether judgment creditors were 
 purchasers 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 the lands comprised in 
 the settlement, or " some rent, profit, or commodity in or out of 
 the same " ? " Independently of any authority," said his Lord- 
 ship, " I confess I should have thought the proposition hardly 
 arguable that a person who recovers judgment is a purchaser. 
 A purchaser, in the sense in wliich the word is used in the statute, 
 is one who gives money or other valuable consideration in order 
 
 {h) Teasdah v. Braithwaite, 5 Ch. D. 
 630 ; In re Foster and Lister, G Cb. D. 87 ; 
 murmur v. Crossfield, 24 Ch. 1). 597 ; 
 post, pp. 289 et seq. 
 
 (r) Post, pp. 281 et seq. 
 
 (d) 2 Rep. Ch. 130 [202]. But see 
 Naylor v. Ualdwin, 1 Rep. Cb. 09 [130]. 
 
 (e) Sir J. Bridg. 22. 
 
 (/) 11 Hare, 120. 
 
 (g) Xcnjlor v. Baldwin, 1 Rep. Ch. 09 
 [13U]. 
 
 (A) De G. M. & G. 492. This case 
 has been followed in Upper Canada in Gil- 
 k'sjHC V. ]'un Eymont, Chy. 553.
 
 WITHIN 27 ELTZ. c. 4 ? 225 
 
 to have the land. The person who recovers a judgment may 
 
 indeed eventually get the land, because under the Statute of 
 
 Westminster ho may take the land in execution, and therefore 
 
 he is said to have, even independently of the last statute, a lien 
 
 on the land ; lut it is not hy any xmrchasc, hut hy virtue of the 
 
 riglit which the law gives him." In support of this, liis T,ord- 
 
 ship cited tlie case of Brace v. Duchess of Marlhorouf/h (i), in jjrare v, 
 
 which the second rule laid down is, " that if a judgment creditor, i^i^^JlioroLh. 
 
 or creditor hy statute or recognizance, brings in the first mort- Judgment 
 
 gage, he shall not tack or unite this to his jiulginent, &c., and "([cked°to a 
 
 thereby gain a preference : for one cannot call a iudgment, &c., |?io':'g"K'' \ 
 
 J o L ' JO' 'for It IS not a 
 
 creditor a purchaser, nor has such creditor any right to the land ; I'urchasc. 
 he has neither jus in re nor ad rem, and therefore, although he 
 releases all his right to the land, he may extend it afterwards. 
 All that he has by the judgment is a lien upon the land, Ijut non 
 constat wdiether he will ever make use thereof ; for he may recover 
 the debt out of the goods of the cognizor by fi. fa., or may take 
 the body, and then during the defendant's life he can have no 
 other execution ; besides, the judgment creditor does not lend his 
 money upon the immediate view or contemplation of the cognizor's 
 real estate ; for the land afterwards purchased may be extended 
 on the judgment, nor is he deceived or defrauded though the 
 cognizor had before made twenty mortgages of all his real estate ; 
 whereas a mortgagee is defrauded or deceived if the mortgagor 
 before that time mortgaged his land to another." 
 
 Lord Cranworth, after commenting on the old cases above Lord Cran- 
 referred to (/.) and on Barton v. Vankcytlmyscn (/), which he said opinion, 
 was merely a dictum, and not an actual decision to the contrary, 
 said : " The conclusion is thus irresistible that under the statute of 
 Elizabeth, and independently of the statute of the present Queen {m), 
 these iudgment creditors have no right as purchasers ; they are not Judgment 
 
 •> o • 1 1 creditor not a 
 
 purchasers within the meaning of the statute of Elizabeth, and can, purchaser. 
 therefore, have no right against the voluntary settlement " (/(). 
 
 (i) 2 P. Wms. 491; see also Xacey v. 22; and see Ex parte Knoit, 11 Ves. 
 
 Ingle, 2 Ph. 413 ; Barrow v. Gray, 2 GOO. 
 
 Cro. Eliz. 551-2; Boss v. Pope, Plowd. (/) 11 Hare, 120. 
 
 72. (?«) 1 &2 Vict. c. 110, s. 13. 
 
 (Z;) Girlhuj v. Lowther, 2 Ch. Kep. (n) Contra, (rVonovan v. Bogcrs, 7 
 
 136, and Garth v. Ersfidd, Sir J. Bridg. Jr. Cli, Kep. 49G. 
 
 Q
 
 22G ARE JUDGMENT CREDITORS 
 
 Tliis case was followed and strongly approved by Lord Piomilly, 
 JM.Ii., in Kiiulerlcy v. Jcrvis (o), and is fully in unison with the 
 older case of Whitworth v. Gaugain (p), decided by Vice-Chan- 
 cellor "Wigram, and affirmed, on appeal, by Lord Lyndhurst (q), 
 where much the same point was under discussion, although there 
 the prior claim was by an equitable mortgagee against a subse- 
 quent judgment creditor, without notice. 
 
 1&2 Vict. c. Tlie difficulty of the subject is increased by the statute 1 & 2 
 ' ^' ■ Vict. c. 110 (?■), the loth section of which enacts that judgments 
 against any persons shall operate as a cliarge upon all lands, &c., 
 of which such person shall be seised, &c., at the time or after- 
 wards, " or over which such person shall at the time of entering 
 up such judgment, or at any time afterwards, ha^'e any disposing 
 poiccr which he might, without the assent of any other person, 
 exercise for his own benefit " (.s), in the same way as if such 
 person had had the power to, " and had by writing under his hand 
 agreed to, charge " the lands with the amount of such judgment 
 debt and interest thereon. 
 
 Only refers to But this, it sccms, makes no difference; the judgment only 
 ^yhonesaii ^^'i^^cls the beneficial interest of the debtor in the lands over which 
 dispose of. \^Q i^r^g r^ howk fide disposing power, and not tlie interest of other 
 persons in those lands which he might by improper conduct 
 obtain possession of ; the judgment is only made a charge on 
 what was at the time really the property of the debtor. The 
 Act does not say that the judgment creditors are to be in the 
 same position as they would have been if there had been a charge 
 for valuable consideration, especially when (as in the case of land 
 subject to a voluntary settlement) the debtor would, in making 
 such a charge, be committing an act which the construction of 
 another statute {t) declares to be a fraud {u). 
 
 (o) 22 Beav. 1. (m) WJiiticorth v. Gaugain, 3 Hare, 
 
 (p) 3 Hare, 41G. 416, S. C. 1 Ph. 728 ; Beavayi v. Jiarl of 
 
 (q) 1 Ph. 728. Oxford, C De G. M. & G. 492-521; 
 
 (r) Extended to Ireland by 3 & 4 Vict. Klnderley v. Jervis, 22 Beav. 1 ; and Sir 
 
 c. 105. W. Erie's judgment in Watts v. Porter, 
 
 («) That is, "not as a trustee": 3 E. & B. 758, in which, however, the 
 
 Arnold v. The 3Iai/or of Graccsend, 25 majority of the judges decided the oppo- 
 
 L. J. Ch. 530. gite ; but see I'ichering v. The JIfracombe 
 
 {t) 27 Eliz. c. 4. liaihcaij Co., L. II. 3 C. P. 235.
 
 WITHIN 27 KLIZ. c. 4 ? 227 
 
 An opposite conclusion was indeed come lo by Lord Canipljoll 
 and the Court of Q. B. in Wafts v. Porter (v), dissentiente Sir 
 W. Erie; but the actual decision in that case was on the 1 llh 
 section (w) of the statute (x), which relates to stocks and sliares, 
 and, so far at least as it professes to govern tlie construction 
 of the 13th section, it has been distinctly overruled (//). Tlie 
 statute 27 & 28 Vict. c. 112, does not a])pcar to liave allen-d 
 the position of the judgment creditor in this respect. The judg- 
 ment under it does not afiect the land (z) of tlie debtor (a) mitil 
 actually delivered in execution by virtue of a writ of elegit <jr othei- 
 lawful authority. At the time tliat judgment takes effect, the 
 land, as there defined, must be "the laud of the debtor." 
 
 It nuist therefore be taken as settled that a judgment creditor Judgment 
 is not a purchaser within tlie meaning of the statute 27 Eliz. c. 4, "^^^^7' "* 
 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 (h). 
 
 The most plausible argument in favour of the judgment ere- "\^niereju(lp- 
 ditor is to suppose his judgment founded on contract and not to by agreemeut 
 be the result of a proceeding in invitum; and tliis no doulit 
 may l)e the trutli of the case where tlie judgment is voluntarily 
 confessed ; for the creditor may, in consideration of the confession 
 of judgment, 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 correct, how does it alter the case ? What was 
 the contract ? It was a general contract for a judgment and the 
 
 (v) 3 E. & B. 743. in Kinderley v. Jervis, 22 Beav. 28 et 
 
 (iv) The current of decision is very geq. 
 strongly against Watts v. I'orter, even (~) Section 2. 
 
 oni\nR BQciwn; see Br Cardiff \. Dorr iiKj- (o) Section 4. 
 
 ton, 4 De G. & Sm. 122 ; Danster v. Glen- (6) See also Dolphin v. Ai/lwar(l,L. II. 
 
 gall, (J De (i. M. & G. 532 ; Langton v. 4 H, L. 486, 500; Evans v. Emns, '1 
 
 Ilorton, 1 Hare, 549 ; Johnson v. Holds- l,-. Ch. Rep. 242 ; Burgh v. Francis, 1 
 
 worth, 1 Sim. (N.S.) 106; Hawhins v. Eq. C. Ab. 320, pi. 1 ; Finch \. Winchil- 
 
 Gathercole, 1 Sim. (N.S.) 63, 74 ; and see sea, 1 P. Wms. 277 ; Brearcliff v. JJor- 
 
 Pichering v. The llfracomhe Eailway Co., rington, 4 De G. & Sm. 122, followed by 
 
 L. R. 3 C. P. 235. Dunster v. Olengall, 3 Ir. Ch. Pvep. 47 ; 
 
 (x) 1 & 2 Vict. c. lin. Furg v. A'mM, 1 Hnd. & Br. (Ir. Rt-p.) 
 
 (y) By L.C. and L.JJ. In Beavan v. 735, Sug. V. & P. 10th ed. vol. 3, 362; 
 
 Earl of Oxford, 6 De G. M. & G. 492, Jil'Anleyy. Clarendon, 8 Ir. Ch. Rep. 568 ; 
 
 particularly 524 et seq. and 532 ; and Benham v. Kcane, 1 J. & H. 085, 098. 
 
 2
 
 i^28 ARE JUDGMENT CREDITORS 
 
 fruits of a juclL^raent, and the original question therefore, — what 
 
 right does a jiidgnient confer ? — remains untouched " (c) ; so that 
 
 Any contract a contract binding property for vahiable consideration, though 
 
 defea^t"^ equitable only, will take precedence over a subsequent judgment, 
 
 pubsequent ^yhatever may be the consideration for it, and whether obtained 
 
 juJgnients. "^ 
 
 in invitum or by confession ((/). 
 Possession It makes no difference that the judgment creditor has acquired 
 
 without notice ^^^^ ^^S'^^ seisiu and possession of the land under an elegit without 
 makes no dif- j^Q^ice of the voluntary deed (e). 
 
 lerence. •' ^ ^ 
 
 Dolphin \. In Dolphin v. Aijlward (/), the debtor in 1802 submitted to 
 
 ^"-^''^' two judgments in favour of his two sisters. In 1809 he made a 
 voluntary settlement of real estate, subject to these two judgment 
 debts, reserving to himself 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 appel- 
 lant. 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 subject to tliose two mortgages, and 
 subject, of course, to the prior judgments. 
 
 Lord Hatherley, L.C., explained the position of a judgment cre- 
 ditor as follows : — " It is quite settled that a judgment creditor 
 can take no interest whatever, either legal or equitable, beyond 
 what he acquires from tlic deljtor ; sucli an interest, in fact, 
 as the debtor himself could give, and no other ((/). 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." 
 
 (c) Whitworthv. Gaur/a!n,3U:m, 423, (e) IVhitworth v. Gaugain, 3 Ilarc, 
 
 S.C. 1 rh. 718. As to judgments being 410, S. C. 1 Ph. 728. 
 
 a subject of contract, see Crofl v. Lumky, (/) L. R. 4 II. L. 48C ; and see JIalcs 
 
 C H. L. C. G72 ; JJoc v. Carter, 8 T. U. .3U0. v. Cox, 1 N. R. .344. 
 
 (</) Per Lord St. Leonards, in Abbott v. {(j) L. R. 4 II. L. at p. 500. 
 Straiten, 3 J. & Lat. C03, 014.
 
 WITHIN 27 ELIZ. c. 4 ? 229 
 
 " lie found iL in this condilion, that tlie scttlur had conveyed 
 tlie estates hy way of voluntary settlement, reserving to himself 
 only a life interest. As regards the judgment creditor, lie had 
 only the life interest 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." 
 
 Lut in a case in Ireland (/;), where a jud,L,Miient and a vnlunhiry r.utjuJRment 
 (creditor's) deed were hot! i registered on the same day, ]iri(aily |j'|!;|i','jJt yJiuQ. 
 was given to the judgment, as relating hack to the first day of ^^^"' 
 the preceding term, tlie volunteers not being purchasers as against 
 whom the relation back is taken away by the Statute of Frauds (/). 
 
 In America (where the statute 27 Eliz. c. 1, has been adopted) it Amcricnn law 
 has been decided, on the same princii)le, tliat a purchaser at a jiJIj^n "'|^^°'* '" 
 sheriff's sale, under a judgment and execution against the grantor of creditors, 
 a voluntary deed, is not a purchaser as against the volunteers (/.) ; 
 in such a case of involuntary alienation by the settlor, the pre- 
 sumption of a fraudulent intention on his part cannot arise. 
 
 A conveyance by a man to trustees to sell for the benefit of Trustees of 
 
 ,.^ .„ .J ... crcditon*' ilced 
 
 creditors will, it seems, sometimes constitute tiic trustees pur- on trust to 
 chasers within the meaning of the statute. purchasers!'' 
 
 In Broivn v. Carter (/) a son, W. G., tenant in tail iu remainder, Broim v. 
 joined his father, tenant for life, in a recovery for the purjiose 
 of raising £3000 for the father and resettling the estate, the 
 son, W. G., taking back only an estate for life (subject to his 
 father's life estate), with remainder to his first and other sons 
 successively in tail male. The father died, and the son, W. G., 
 haviu" married, but bein;^ without issue and bcimr in eiubar- 
 rassed circumstances, conveyed the estate to trustees on trust to 
 sell and pay off" the £3000 and all his other debts, by a deed 
 reciting the settlement, and shewiniij that he was then tenant for 
 life, with remainder to his first and other sons, &c., remainder to 
 himself in fee. 
 
 There was a provision that in case any doubt or difhculty 
 should be made respecting the title of W. CJ., the debtor, to sell 
 
 (/() Beamish v. Fhairc, 11 Ir. Ec]. Hep. (/,) li'uJycway v. Undcrvood, 4 Wnsli. 
 
 550. I-",t ; Story, Eq. .Tiir. I'.'tli cd. vol. 1, 8. 433. 
 
 (0 29 Car. 2, c. 3, f. 1.";. (/) 5 Yes. 8<;2.
 
 2.30 WHO ARE PURCHASERS 
 
 the fee simple and inheritance, the trustees sliould institute any 
 suit or make application to Parliament to authorize and compel 
 the then trustees or trustee to preserve contingent remainders 
 durmg the life of "\V. Cr., and all other proper parties to join in 
 the sale and conveyance. 
 
 The trustees of this deed filed their bill against the trustee 
 of the settlement and the debtor, W. G., and tlie incumbrancer, 
 ])raying that tliey might be enabled to carry the trusts for sale 
 into execution, and that all the defendants might be decreed 
 to join in a sale and conveyance; and it was argued for them 
 that the settlement was voluntary, and therefore void against 
 them as purchasers under the creditors' deed. The Master of 
 the Eolls (Sir li. P. Arden) upheld the settlement, and refused 
 to compel the trustee to join, on other grounds, and did not 
 decide whether the creditors' trustees were to be considered as 
 purchasers or not ; but he seems to have been inclined to think 
 that they were not, for he said : The bill was filed to compel 
 the trustee to convey to the uses of the deed " by which ^Y. G., 
 becoming extremely encumbered, conveyed to trustees upon trust 
 to sell for the payment of liis creditors in general ; for it is not 
 a particular purchase for valuable consideration, except as such a 
 deed for the payment of creditors generally can be so considered." 
 
 Difference be- This sccms to point at the distinction afterwards made by Lord 
 
 twGGn £rcDcr£il 
 
 creditors and Eldon (vi) between creditors and purchasers, that the latter have 
 cumbrancers. ^ specific charge against part of llie property, having paid their 
 
 money for that whicli creditors can only claim as part of the 
 
 general assets. 
 
 Fraud not Yqt as fraud is never to be presumed (n), the natural inference 
 
 presumed. 
 
 \\hen a man conveys his general property to trustees for his 
 creditors is, that lie intends to put them in his own place, and to 
 give them such interest in the property as he had a riglit to 
 convey ; not that he intended — in derogation of his own previous 
 grant — to give them that to which, quft creditors, they would 
 liave had no claim. 
 
 (m) In George v. Milhanhe, 9 Ves. {n) Leulccner v. Freeman, Freeni. Ch. 
 
 19(3; see Brace v. Marlborough, 2 P. 2.36; Trenchardw '\Vunlaj,2 V.'W. 167 
 
 Wnis. 491 ; Taylor v. Wheeler, 2 Vern. iWCormkh v. Groijau, L. K. 4 II. L. 82, 
 
 565; ante, p. 80. 97.
 
 WITHIN 27 ELIZ. c. 4. 231 
 
 In Buttcrficld v. Heath (o), liowevcr, wlierc liusljaiid ami wife nntterfiddv. 
 after marriage settled property whicli liad come to tliem in riglit ■'^'^""'" 
 of the wife, and then joined in mortgaging the same property with Specific mort- 
 a power of sale, and afterwards in conveying it expressly and Eilkcr"^'" 
 specifically to trustees upon trust to sell and distribute the pro- chaTerB"'' 
 ceeds among the husband's creditors, the Master of the Rolls held 
 the settlement void against them as purcliasers. lie said : " I 
 do not understand that any question arises under the deed of 
 conveyance to the plaintiff. I have not had a copy of it l)eforn 
 me ; but I understand it to be a conveyance to certain creditors 
 of Mr. r. in trust to sell and divide tlie proceeds among liis 
 creditors, and that the trustees tliemselvcs, being creditors of 
 Mr. P., have executed this deed. If this be so, the plaintiffs are 
 purchasers." Here, it must l)e observed, the settlors had repudi- 
 ated their settlement, by mortgage with a power of sale, bef<jrc 
 making the conveyance for creditors ; and that that was a con- 
 veyance of the particular estate, not a general grant. The above 
 case of BroiDih v. Carter (v) was not referred to. 
 
 But in Barton v. Vanhcythuysen (q) the debtor, 11. E. V., Jlarton v. 
 executed a mortgage deed, whereby he was expressed to grant, thuysen] 
 convey, and assign to a trustee, his heirs, executors, administra- 
 tors, and assigns, all and singular the real and personal estate, 
 rights, and credits whatsoever and wheresoever of him the said 
 E. E. v., in trust to sell the same, and out of the proceeds of such 
 sale to satisfy the debt owing to S. 
 
 It was argued that, inasmuch as the conveyance was expressed General 
 in general words, and purported to convey all the real and was^rpued) 
 personal estate of the debtor without particularizing the estate "f°*,i|'e^?'°a 
 which was subject to the vokmtary settlement, such estate was ••■»nJs," &*••• 
 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 v/ords could not ha 
 said to be purchasers of the " same " estate, which, under tlie 
 
 (o) 15 Beav. 408. {p) 5 Ves. 8G2. (7) 11 Ilarc, 120, 131-2.
 
 232 
 
 WUU ARE PURCHASERS 
 
 circumstances, and in the absence of any precise expression to 
 
 that effect, it was not reasonable to suppose was intended by the 
 
 grantor to be comprised. Lord Hatherley (then Yice-Cliancellor 
 
 Held that Sir W. r. Wood) said : " The fallacy in tliis argument consists in 
 
 the general • i i /> i • 
 
 mortgagees to assuming that the first objection has been sustained, and in 
 cedent debt' regarding the H. estate as not in trutli the property of R. E. V." 
 Sere^" (the debtor), "which, as between himself and a subsequent 
 purchaser, I have held it to have been. I am t)f opinion that 
 11. E. Y. had clearly power to pass the estate to a purchaser. 
 This Court would not liave interfered to restrain him from doing 
 so, but would, on the contrar}', 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 perfect inten- 
 tion to acquire all that E. E. V. could give; and, taking tlie 
 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 Girlivg v. Loicthcr (?•) and Garth v. Ersficld (s) as shewing 
 that creditors, by judgment and recogni;:ance (whose position is 
 analogous), are purchasers within the statute, and concluded his 
 judgment on this question by saying that, both on principle and 
 authority, the mortgagees were entitled to the real estate comprised 
 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 (/) so far as they decide 
 the point for whicli they were quoted — viz., that judgment credi- 
 tors are purchasers. Lord St. Leonards has remarked that the 
 decision may require further consideration {u). 
 
 All that this case has actually decided is, that a mortgage to 
 a particular creditor to secure his debt makes that creditor a 
 purchaser within the statute, even if the mortgage is only in 
 general terms of all the cdatc, real and personal, of the debtor, 
 without any specific description of the particular estate comprised 
 
 (r) 2 Rep. CI). 1.30. 
 (») Sir J. Bridg. 22. 
 
 (0 Ante, pp. 224, 22.5. 
 
 (w) Sug. V. & r. 11th cd. 713.
 
 WITHIN 27 ELIZ. c. 4. 233 
 
 in llic jircvious voluntary (k'od. lUitifono i^fcnoral assi^'imicnL fur If a general 
 nil,- ^ , II . 4 1 -p 1 nKHignnii'iit 
 
 paymcnL or (lel)t.s is a ])uixiias(', wliy not, all :* Ami if so, a •,'cnt'ral is a imrclmso 
 
 assignment by a dohtor nndcr tlio Bankruptcy Act, 1801 ('0. elu?c!'a bauk- 
 
 which has never been taken to have tliis cflect, or even tlie """I'^y '"• 
 
 general transfer of all the property, real and ])ersonal, of the 
 
 debtor to his trustee in liankrupicy, as effected liy tiu; IJaidvrujilcy 
 
 Acts, 18G9 (in) and 1883 (:>■), and jucvidus iiankruplcy Acts (//), 
 
 must be taken to be within tbe same jninciple : Inilh transfers 
 
 are general, and both are for the same khid of consideration — 
 
 viz., a pre-existing debt. 
 
 This view is Ijorne out by the case of Cadcll v. Btirhy (:), in 
 which A. covenanted, while solvent, to make a voluntary settle- 
 ment; three days after executing it, he covenanted to convey all his 
 property to trustees for his creditors. The trustees of the settle- 
 ment sold the property comprised in it. Tlie trustees under a 
 deed of inspectorship for his creditors claimed the purchase- 
 moneys. It was held that the trustees under the deed for 
 creditors could not support their claim as bona fide purchasers 
 within the statute ; and that, even if they were such purchasers, 
 they could not claim the purchase-moneys. 
 
 The only distinction that can be drawn is, that such a transfer 
 as was made in Barton v. Vanhei/lhu/jsoi (a) is the act of the 
 debtor himself ; whereas an adjudication in bankruptcy is a pro- 
 ceeding in invitum against the debtor. 
 
 Assignees and trustees in bankruptcy, though for many purposes Assignees and 
 looked on as assignees for valuable consideration (&), have, in fact, bankruptcy 
 never been so regarded for all purposes ; " they stand in the place jJ^^^P"^^.''''^" 
 of the bankrupt, and are bound by all acts fairly done by him, not- 
 withstanding they gain the legal estate" (r), but are not considered 
 as purchasers of the legal estate for a valuable consideration for 
 every purpose (d). And if tliey were to be considered purchasers, 
 
 (v) 24 & 25 Vict. c. 134, ss. 192 et seq. («) 11 Hare, 12G. 
 
 (iv) 32 & 33 Vict. c. 71, ss. 17, 22, (b) Collet v. Uc Gols, Yon: Ca. t. T. 
 
 83 (6), (7), (8). G5. 
 
 {x) 4G & 47 Vict. c. 52, s. 4. (c) Per LoiJ llardwickc, in ]\alkcr v. 
 
 \y) Sug. V. & P. 14th ed. 725. The Burrows, 1 Atk. 94. 
 
 Bankruptcy Act, 1849, was in force when (d) By tlie Bankruptcy Acts, ISi'.O 
 
 this case was decided. (32 & 33 Vict. c. 71), s. 15 (4), and lHs;{ 
 
 (2) 15 W. R. 703. (40 & 47 Vict. c. 52), s. 44 (2) ii., the
 
 234 
 
 WHO ARE rURCHASERS 
 
 If so, subse- 
 quent bank- 
 ruptcy would 
 alwajs avoid 
 a voluntarj' 
 Bcttlcment. 
 
 Purchasers 
 by ycncral 
 words not 
 within the 
 reason of the 
 rule. 
 
 tlie great difference between tlie two statutes of Elizabeth, and the 
 distinction drawn by the highest authority and always adhered to 
 since {c), would be done away with ; a voluntary settlement, how- 
 ever fair, honest, and praiseworthy, made by a man in no way 
 indebted nor meaning 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 afterwards became bankrupt. 
 On application by the assignee 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. •!•, 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 refused. 
 
 Again, the rule, no doubt, in general is, that all voluntary con- 
 veyances arc void as against subsequent purchasers ; but it is 
 submitted that a conveyance by general words to a creditor does 
 not come within the reason, though possibly within the letter, of 
 the doctrine. 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 inconsistent for a man 
 to make a voluntary settlement of part of his estate, and then, 
 perhaps twenty years afterwards, 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 
 tlie words of the conveyance do not warrant (//). The presumption 
 always is, in theory, that the subsequent purchaser is deceived, 
 
 property of the bankrupt made available 
 for creditors includes the capacity to exer- 
 cise and to take proceedings for exer- 
 cising 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 bank- 
 ruptcy or during its continuance (or before 
 his discharge, Act 18H.'i), except the right 
 of nomination to a vacant ecclesiastical 
 benefice; and similarprovisions have been 
 contained in previous Bankruptcy Acts. 
 It might be thought that these sections 
 would give to the trustees the power of 
 selling to a purchaser land previously 
 settleil voluntarily ; but it is apprehended 
 that their operation must be confined to 
 
 giving the trustees the right to exercise 
 ail powers which the bankrupt might 
 hoiic»tlii have exercised, and tliat the 
 construction of these provisions must be 
 analogous to that of the llJth and 14th 
 sections of the 1 & 2 Vict. c. 110, on 
 which see ante, pp. 22G et seq. 
 
 (e) See ante, pp. 15, 30, 45, 50. 
 
 (/) 19 W. \\. 15:5. 
 
 {(l) And does not the maxim, that fraud 
 is never to be presumed, apply to such a 
 case ? Lmlcencr v. Freeman, Frcem. Ch. 
 2;3() ; lAuhf (Jorge's Case, ( Vo. Car. 550 ; 
 M'Cormick v. Grogan, L. R. 4 H. L. at 
 p. 'M. " Fraus est odiosa ct non prsesu- 
 menda '' : Cro. Car. 550.
 
 WITHTN 27 ELIZ. c. 4. 235 
 
 and can only get what he bargained for by the avoidance of the 
 prior voluntary deed (A). 
 
 Again, a voluntary settlement will only be avoided so far as is Voluntary 
 necessary to give effect to the subsequent purchase for value ; and vof,'/„7,''iir as 
 the full intention apparent on the face of a deed of conveyance, '^ 'jrcakH in 
 
 •' on suljscqucnt 
 
 in general terms, may be carried into effect without avoiding any purcLaac. 
 prior deed (/). 
 
 Many of the arguments, moreover, wliicli have l)een used to Case ofjuag. 
 
 it crcdi 
 logous. 
 
 shew that judgment creditors are not purchasers witliin the statute SLo'^'' '^°" 
 
 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 faitli of the land, or with tlie view 
 of taking the specific piece of land which was before settled 
 voluntarily. 
 
 A purchaser under this statute is a purchaser in the highest Kniitld as 
 sense of the word, but it could hardly be contended that a trustee, vXabIc 
 under a general conveyance for the payment of a debt, would be, ^?i"j',o„['^^''^" 
 with regard to each specific portion of land, entitled to that favour notice. 
 which is shewn in equity to a purchaser for valuable consideration 
 without notice (A-). 
 
 In Farl'cr v. Serjeant (l) a man agreed, on the marriage of his Parlcr v. 
 nephew, to settle (on a certain event) " an estate in fee of all other ' \'^ " 
 his messuages and lands (in the bill mentioned), the whole being voluntary 
 
 _ , . t e scttlcnifnt 
 
 of the yearly value of £700 ; " the lands being short of the value of not void 
 £700 a year, it was held that the deficiency could not be supplied geJ^e'ral 
 out of a previous settlement made by the uncle on his wife. It charpo of 
 
 ^ *' anninty on 
 
 was said, " though the said settlement was voluntary, and made lai»ls by 
 
 1 • 1 1 1 1 PI marriage 
 
 With a power of revocation, which, by the very letter of the statute sctticmcDt. 
 27 Eliz. c. 4, would make it fraudulent against any purchaser, yet 
 it could not be so against the nephew or his wife ; for it could not 
 be made with intent to deceive her, because it was made so long 
 before her marriage, and the lands which were thus iu jointure to 
 
 (/() See Bennett \. Bernard, lOlv. E(i. and see Dolphin v. AijUrard, L. 15. ■» 
 
 Eep. 584, 588 ; ante, pp. 187, 188. II. L. 499-5UO; post, pt. vi. cli. i. 
 
 ((■) So that where settled lands were {h) Basset v. Xosworthij, Finch. 1U2 ; 
 
 included in a mortgage with other uii- "Wli. & Tu. L. C. 6th cd. vol. '2, 1. 
 
 settled lands, the latter were held pri- (/) Finch, llij, 148. 
 marily liable : Jfcdes v. Cox, 1 N. 11. 344 ;
 
 236 
 
 AVUO ARE rURCHASERS 
 
 tlie auut wove no part of the particular whereon the said marriago was 
 iiiailc between the nephew and her." . . . . " Therefore the nephew 
 and his wife cannot be acconnted sucli 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 particular wherein that estate was 
 not so much as mentioned." 
 
 Case in Coke. And SO also in a case mentioned by Coke (in), where S. C, having 
 a lease for sixty years, if he lived so long, forged a lease for ninety 
 years absolutely, and, liy indenture reciting the forged lease, for 
 valuable consideration bargained and sold the forged lease and all 
 his interest in the land to li. G. Sir Edward Coke thought that 
 11. 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 perhaps he would not have dealt for it, and 
 the visible and known term was forged ; and although % rjencral 
 words the true interest passed, notwithstanding he gave no valuable 
 consideration nor contracted for it ; and of this opinion were all 
 the judges. 
 
 Trustee of It is observed by Roberts (n) that it seems clear on principle, 
 
 voluntary 
 
 deed whether and agreeable to all the determinations of the Court of Chancery, 
 a puic aser, ^|^^j. ^ trustee appointed under a voluntary settlement cannot 
 become a bona fide purchaser so as to dissolve the connection 
 between himself and his cestuis que trust, and that he cannot, by 
 paying 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 voluntary settlor as against his cestuis que trust. 
 
 Doe V. 
 Bottriell. 
 
 In a case in the Court of King's liencli (u) J. L., seised in fee of 
 copyholds, made a voluntary surrender to the use of G. Jl. and 
 T. T. (the lessor of the plaintiff) on trusts for himself and his 
 
 (m) Co. Litt. 3b; Bennett \ . Bernard, 
 10 Ir. Eq. Rep. .084, 588. 
 («) Fraud. Conv. .389 ; see notes to 
 
 Fox V. Maclcreth, Wli. & Tu. G(h cd. 
 vol. 1, 174 et seq. 
 
 (o) Doc d. TvnsilU V. Bottriell, 5 B. 
 & Ad. 131.
 
 WITHIN 27 ELIZ. c. 4. 237 
 
 issue, and not long afterwards, in consideration of a fair price paid 
 by tlic said T. T., again surrendered the jiremiscs to T. T. for life, 
 remainder to the use of such persons as T. T. should liy will 
 appoint, or in default to the right heirs of T. T. It was argued 
 that as T. T. was a trustee under the first deed, he could not be a 
 purchaser within the statute, and as the legal estate was by l»oih 
 conveyances vested in the same person, lie could not defeat the 
 first conveyance to himself, nor could he be considered as a person 
 defrauded or deceived within the statute, and that a case might be 
 supposed where a party would have to pay the penalty (jj) to him- 
 self. lUit the Court {q) unanimously held that T. T. was not dis- 
 qualified from becoming a purchaser, and that tlie voluntary con- 
 veyance was void against him ; for, if the first conveyance was 
 fraudulent, it was void from the first though tlie purchaser had 
 notice. 
 
 But of course a trustee who has, by the direction of the persons a more 
 beneficially entitled, made a voluntary conveyance, cannot after- ge"f '^"^ ^""""^ 
 wards defeat it by his own sale for value to a purchaser with 
 notice of the trust (?•). 
 
 The next question is, whether a person is entitled to rank as a Must the 
 purchaser within the statute who buys, not from the grantor of the vohintarv 
 voluntary deed, but from some other person claiming under him, '^ l^ilnr to il'io 
 either as grantee of a second voluntary instrununit or as licir or pm* liascr ba 
 
 tlie same pcr- 
 
 devisee ? In other words, does the statute 27 Eliz. c. 4, operate to son? 
 avoid a voluntary deed, as against a subsequent purchaser, where 
 the grantor of the voluntary deed and the vendor for valuable con- 
 sideration are not the same person ? (s) 
 
 Such cases are not affected by the construction of the Eegistry CascB unJer 
 Acts, under which a subsequent registered deed will be preferred diflfrcnt. 
 to a prior unregistered one, although both be on valuable consi- 
 deration (t). The difference is obvious. By those statutes non- 
 
 (p) 27 Eliz. c. 4, s. 3. But tlic penalty v. Itutland, Lane, 113 ; Blalcc v. Jfi/laiid, 
 
 is only on those wlio "put in lire, avow, 2 Dr. & Wal. 397; Joiics v. Wkittakcr, 
 
 maintain, justify, or dcfunJ" the fraudu- LongfielJ & T. Ir. Ex. 141; J\trl:ir v. 
 
 lent conveyance ; see post, pt. vi. cli. i. Carter, 4 Hare, 400. 
 
 ((/) Denman, C.J., and Littleilale, (/) Warhurton v. Lovclaud, 2 Dow. 
 
 Parke, and Patteson, .T.T. & CI. 480, as explained by Lord Pluiiket 
 
 (/•) S/ieldcn v. Ilandhimj, F. JIo. 757 ; in Blake v. Hiiland, 2 Dr. & Wal. .T.I7, 
 
 Vin. Abr. vol. 13, p. 527. and by liOrd Campbell in Doc v. liusham, 
 
 (s) BurreVs Case, Eop. 72 a; Ckrh 17 Q. B. 735.
 
 238 
 
 WHO ARE PURCHASERS 
 
 Actual fraud 
 also Uiftl-rent. 
 
 Instance. 
 
 registration is the proof of fraud as against any subsequent 
 registered conveTance, independently of any consideration whether 
 tlie 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 fjrantor is the material point. 
 
 Cases of actual fraud, too, must be put out of the question. It 
 is easy to imagine a case of this nature, in which the statute would 
 operate : A father, having 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 possession of the lands, 
 and that the younger son should conceal the settlement on him 
 until his Ijrother had sold the land as his father's heir-at-law, and 
 that then the voluntary settlement by the father should be pro- 
 duced to defeat the bona fide purchaser ; by which arrangement, 
 if allowed, one son would get the purchase-money and the other 
 the land (it). 
 
 BurreVs Case. This, according to the opinion of the Court in liichards v. 
 Zcuis (v), was the meaning of the first resolution in Burrel's 
 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 
 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 w^ho sells the land should make 
 the former estate or incumbrance ; but, be the estate fraudulent iit 
 siqora, whosoever 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 " (a). 
 
 Misconstrued. BnrreVs Case (?/) has, however, frequently been cited as laying 
 
 (u) As to cases of persons losing tlieir 
 rights by concealing thera, and standing 
 by while a purchaser purchase?, sec ante, 
 p. 197, note («). 
 
 (u) 16 Jur. 512, S. C. 11 Com. B. 1035. 
 
 {w) G Hep. 72 a. In Ckrh v. nutland, 
 Lane, 113, the same construction appears 
 to have been put on this case. 
 
 (ar) Sug. V. & I'. 14th ed. 713. 
 
 (y) C liep. 72 a.
 
 WITHIN 27 ELIZ. c. 4. 231) 
 
 down that a voluntary deed is constriictivdij fraudulent as a^rainst 
 a vendee from a person diOereiit from the auihor of thu volunlary 
 deed (z) ; but the facts of the case do not warrant this assertion. 
 They were as follows : — The grandfather, on the marria<,'e of tlie Statement of 
 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, tliat it 
 might not he merged by descent of the reversion, and with a 
 coloural)le intent that the infant should pay debts. The grand- 
 fatlier died; the father entered and UniV the ])r(jtiis, and iiotliing 
 was done by the son under the assignment of the lease. Afit-r- 
 wards, 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. X(jw it is clear lluU 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 neces- 
 sary 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 Puchards v. Leiois (h), to apply only to cases of actual fraud {c), Eitlier applies 
 or, on the authority of Lord Campbell and the Court of Queen's " "Jj 
 Bench in Doe v. RiLsham (d), as the resolution goes beyond what or is not con- 
 is required by the facts of the case, it cannot be considered con- 
 clusive. 
 
 In the first case of Richards v. Lewis (h), it was held thai a lilcJiardsx. 
 voluntary deed, not actually fraudulent, by which 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 tanto by a mortgage made by the widow surA-i\-ing. 
 
 Williams, J., said the consequence of holding tlie contrary 
 
 {z) Warburton v. Lovdand, 2 Dow. (6) 20 L.J. C. P. 177, S.C. 11 Com. 15. 
 
 & CI. 487 ; Jones v. Whittaker, Long. & 1035. 
 
 Towns. 141 ; Blalce v. ILjlanJ, 2 Dr. & (c) See also Leu-is v. Reei^, .T K. & .1. 
 
 W'al. 397. 132 ; Sug. V. & P. 14tli ctl. 713. 
 
 (a) Rob. Fraud. Conv. 380. {d) 17 Q. B. 720.
 
 240 
 
 WHO ARE PURCHASERS 
 
 Doe V. 
 Busham. 
 
 DilTercnco 
 between piir- 
 ctiaser from 
 lieir and from 
 dcviBee. 
 
 would bo, that if a fatlicr disinherited his heir with tlio full 
 intention that the conveyance should operate by way of gift to 
 his younger children, the heir would have power to nullify it 
 by a sale of the premises. 
 
 In Doc V. Ihisliam (<■), the facts, as stated by Lord Campbell, 
 C.J., in delivering the judgment of the Court of Queen's Bench, 
 were as follows: — John Xewman, being seised in fee, by deed 
 dated July 3, 1833, covenanted to stand seised to himself for life, 
 remainder to Sarah N'ewman (his daughter-in-law) for life, re- 
 mainder to George Newman (his grandson), the lessor of the plain- 
 tiff in fee. On March IG, 1811-, John ISTewnian made his will 
 and devised the premises to Sarah Xewman for life, remainder to 
 Thomas Morse in fee. 
 
 John Xewman was liuried March lU, 18il-. On April 5, 
 1847, Sarah Xewman and Thomas Morse sold and conveyed 
 the premises to the defendant for £100. Sarah Xewman 
 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 
 Xewman, tlie voluntary donor, by whose will the grandson was 
 excluded. A verdict had been found for the jilaintiff (the 
 grandson), and a rule nisi had been obtained to enter a verdict 
 for the defendant. 
 
 Lord Campbell, after commenting on and explaining BurrcVs 
 Case (/) 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 Xewman, when he made 
 his will ill ISli', had no estate which he could devise to Thomas 
 Morse ; and if the devisee took notliing, how is it possible that he 
 can convey anything to a purchaser ? 
 
 There is some difference between the case of a purchaser from 
 an heir and that of a purchaser from a devisee ; in the former case 
 the ancestor has done no act whereby he has shewn any intention 
 
 (e) 17 Q. C. 724. 
 
 (/) G Rep. 72 a.
 
 ^yITHIx 27 eliz. c. 4. 241 
 
 to repudiate his voluntary conveyance, wliercas in the latter the 
 testator has done such an act by tlie devise in his will. But that 
 act of devising does not shew any intention in his mind to sell liic 
 property, nor that his devisee shall sell it, and therefore no infer- 
 ence of an intention to defraud purchasers Ijy the voluntary con- 
 veyance can be raised by reference to the time of the voluntary 
 conveyance being made. In truth, neither heir nor devisee in such 
 a case has any estate in him, and therefore cannot possibly pass 
 any to a purchaser (.y). 
 
 This case, and that in the Common I'leas, which were followed (Jmntor of 
 
 in Chancery in Zciuis v. Hees (h), must be taken as overruling the and vendor 
 
 decision of the Irish Court of Exchequer in Junes v. Whittaker (i), """' ^"^ '"'°* 
 
 i- \ '' person. 
 
 and the extra-judicial dicta to a contrary eflect in the opinion of 
 the judges given on the case of Warlurton v. Lovcland in the 
 House of Lords {k). Endless confusion might be caused by the 
 adoption of the opposite rule, which would in fact be to prufer a 
 subsequent to a prior voluntary conveyance. 
 
 The same qualification of the right of a subsequent purchaser to So too in 
 avoid a prior voluntary conveyance — namely, that both the con- 
 veyances must have been made by the same person — is the law in 
 America (l). 
 
 But if after a completed contract for sale of the properly tlic Death of 
 original settlor dies, his heir or devisee can of course obtain the cr.ntract for 
 benefit of the contract by completing the sale {m), or the purchaser ^^^' 
 can compel him to perform 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 voluntary con- Notice im- 
 veyance by his vendor's ancestor or devisee has sometimes been 
 urged in his favour, but there is, it seems, no weight in this {p), 
 
 {(j) Doe V. liusJiam, 17 Q. B. 7^4. So (/) Longfield & Townsend, 141. 
 
 in Jones v. Purefoy, 1 Vern. 4G: "The \k) 2 Dow & CI. 487. 
 
 settlement was made by the grandfather" (/) Story, Eq. Jur. 12th ed. s. 434 a. 
 
 (on a grandson), "and the estate passed (to) WiUats \. Bitsby, ijBeav. 10.3. 
 
 from him ; but the mortgage was made by (n) Ilatton v. Neale, Bui. N. P. W a, 
 
 the father, irJto teas never seised nor 201 a; ante, p. 20.3; Clarke v. JUllott, 
 
 of the estate." See also Ander- L. E. 7 Ex. 313; Peters v. XicoUs, 1.. K. 
 
 son V. Elsworth, 3 Giff. 16G, 170; Parker 11 Eq. 391; Boshcr v. Williams, L. R. 
 
 V. Carter, 4 Hare, 409-410; Leiris v. 20 Eq. 218. 
 
 Bees, 3 K. & J. 132. (o) Ante, p. 211>. 
 
 ill) 3 K. & .T. 132. (/)) Jones v. I^trrfoy, 1 Vern. 4,-i. 
 
 R
 
 242 
 
 WUO AKE rURCHASERS WITHIN 27 ELIZ. C. 4. 
 
 unless so far as it might be important as evidence of actual 
 fraud (q). 
 
 But where the first conveyance and the sale are virtually 
 
 Sufficient if 
 
 voiunLry deed ^^^^ ^Y ^^^^ Same person, it is sufhcient, though they are appar- 
 
 and vendor 
 are virtually 
 same person. 
 
 Conveyance 
 of different 
 interests in 
 same land by 
 different per- 
 sons, other- 
 
 ently and technically made by two separate persons. Thus, 
 where {r) T. B., seised of land in fee or fee tail, conveyed it 
 by bargain and sale to E. C. in fee, and E. C. suffered a recovery 
 and declared the 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 tlie 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 having 
 different interests in the same property make successive and 
 antagonistic conveyances ; thus in Hunt v. Gatcley (s) there 
 were tenant in tail and remainderman ; the latter made a 
 voluntary grant of rent, and afterwards tenant in tail suffered a 
 common recovery in favour 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. 1, 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 re- 
 mainder the grant of rent. 
 
 (</) Doe d. Bothell v. ^lartijr, 1 B. & (/•) Bulloch v. Tliornc, V. :Mo. C15-G ; 
 
 P. (N.K.) 332. ante, p. 214; Rob. Fraud. Conv. 616, 
 
 (s) F. Mo. 154, 158.
 
 PART IV. 
 
 WHAT IS A VALUABLE CONST DERATIOX UXDER THE 
 STATUTES OF ELIZABETH. 
 
 CIIArTEIl I. 
 
 CONSIDEKATION GENEEALLY. 
 
 action is voluntary or is made on good consideration, is only of ouL con- 
 importance as against creditors where it is bona fide ; for if it 
 
 "-^ 3 " importance, 
 
 It -will be found that the question, whether a deed or trans- In what cases 
 
 the question 
 of the con- 
 sideration is of 
 
 is not bona fide {a) — that is, if it is made with the actual 
 and express intention of defeating creditors — that is sufficient to 
 make it void under 13 Eliz; c. 5, even if it be on full and 
 valuable consideration (&), and much more so if it is volun- 
 tary (c). 
 
 JMala fides supersedes all inquiry into the consideration ; but 
 bona fides alone is not always sufficient to support a transaction 
 not founded on any valuable consideration {d). 
 
 There are many points as to which tlie question, whetlier a 
 deed is voluntary or made for valuable consideration, is of im- 
 portance (c) ; for a voluntary conveyance l)y a person ' indebted 
 is void against his debts merely for being voluntary (/) ; and an 
 assignment to defeat execution (r/), or forfeiture (A), or not 
 followed by a change of possession (i), which, if supported by 
 
 (a) Ante, pp. 78 et scq. (e) Post, pt. v. cli. iii. 
 
 {h) Ante, pp. 84 et seq. (/) Ante, pp. 0, ."55. 
 
 (e) Ante, p. 41. (</) Ante, pp. 72, 00. 
 
 (f/) Bimsel V. Hammond, 1 Atk. 13 (/() Ante, pp. 71, 7-'. 
 
 "West, t. H., 330; Kimn v. Wilsmore, 8 (/) Ante, pp. 113 i-t acq. 
 T. E. 528 ; ant(>, pp. 3(3 et scq. 
 
 K 2
 
 244 
 
 WHAT IS A VALUABLE 
 
 27 Eliz. c. 4, 
 much the 
 same question. 
 
 valuable consideration, would be good, is in general void if volun- 
 tary. 
 
 Cases in which This chapter, then, will be confined to cases in which, the 
 lion is as to the ^^"^' /^^•^ having been established or not disputed, the question 
 consideration, remains as to the consideration, whether it is valuable and suf- 
 ficient, or whether the conveyance is voluntary, and for that 
 reason void against creditors (/.). 
 
 The same kind of question arises under 27 Eliz. c. 4. 
 
 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 con- 
 veyances are void, and all made on sufficient and valuable con- 
 sideration 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 convenient to treat of 
 them both at the same time (/). 
 
 It was laid down by the Court of Exchequer in Curric v. 
 Nind (m) that a valuable consideration in the sense of the law 
 may consist either in some right, interest, 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 as " os. 
 and other valuable considerations " does not oblige the Court to 
 hold the conveyance, at all events, to be for valuable considera- 
 tion, and can, at most, only let the parties thereto into proof 
 that there were other valuable considerations (n) ; in fact, any 
 consideration entirely inadequate is of no avail (o). 
 
 So a settlement by demise of leaseholds under which the 
 
 "What is a 
 Taluable con- 
 Bideration. 
 
 Consideration 
 nominal. 
 
 Inadequate. 
 
 (k) Peat V. Poirell, Amb. 387; Par- 
 tridr/e V. fjojfji, 2 Amb. o90 ; ante, p. 15. 
 
 (/) Post, pp. 2."j1), 2GU. 
 
 (m) L. R. 10 Ex. ir,2; and sec Com. 
 Dig. Act, on case Ass. B. 1-15. 
 
 (/i) Walker v. Burrows, 1 Atk. 94. 
 
 (o) Partridf/e v. Gojyp, 2 Amb. 596; 
 Mathews v. leaver, 1 Cox, 278, 280; 
 TJeweij V. Patjntun, East, 257, 282 ; 
 Copis V, Middleton, 2 Mad. 431 et scq. ; 
 
 Hale V. Alhutt, 18 C. B. 527 ; (Strong v, 
 tStroiifi, 18 Beav. 408; and sec Tarlcton 
 V. Liddell, 17 Q. B. 3110, 414. As to how 
 I'ar tlie smalhiess of the price paid may 
 be evidence that the purchaser was a 
 party to the fraud, see Lee v. Hart, 10 
 Ex. 560 ; LlaneUij Jiailwaji and Dock 
 Co. V. London and Xvrth-Wcsteru liail- 
 wai/ Co., L. I?. 8 Ch., per Mellish, L.J., 
 1)58.
 
 CONSIDER ATIOX. 245 
 
 trustees were liable to the paymeut of l^. if demanded, and 
 beyond that were under no liability, was held void against a sub- 
 sequent mortgagee under 27 Eliz. c. 4 (p). 
 
 There must be a real consideration paid, or a fair intercliange 
 of interests ; for though mere inade([uacy of price is not in Inadequate, 
 general a circumstance whicli will of itself make an assignment 
 void (q), yet if the inadequacy is very great — at least, if it is so 
 palpable that it must be taken to have been a fraudulent con- 
 trivance between the parties — the transaction will be void against 
 creditors (?•), especially if what little consideration was given con- 
 sisted 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 £171' os. Q>d. owing to 
 her, it was set aside as a fraud on his creditors (/) ; and whure 
 gross inadequacy of price is coupled with want of possession it 
 will generally be fatal to the sale {u). 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 (?;) ; and where the considera- Failure of. 
 tion has failed through the fraud of the vendor the contract on 
 the part of the vendee in consideration of it will not be enforced 
 against him {lo). 
 
 Deeds founded on meritorious considerations alone, such as Meritorious, 
 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 (./:), for the " good " consideration required 
 
 {p) Shurmiir v. Sed[/wicl; 24 Ch. D. Lomax v. Buxton, L. E. G C. 1'. at 
 
 597. P- 111- 
 
 {q) Copis V. Mlddhton, 2 Mad. 423; {w) Tarletonx. Luldcll, 17 Q. B. 390, 
 
 ante, p. 81. 414. 
 
 (?•) Jf^trong v. Slroncf, 18 Beav. 408 ; {x) Wbodie's Case, cited in Colvile v. 
 
 Hale V. Allnutt, 18 C. B. 505, 527; FarJcer, Cro. Jac. 158; Tiri/ne's Case, 3 
 
 Tennent v. Tennents, L. K. 2 H. L. Sc. Eep. 81 b ; Chapman v. Umerij, 1 Cowp. 
 
 6; vide supra, p. 84. 278; A'aVes v. Attorney-General, 2 Atk. 
 
 (.s) Videante,pp. 94etseq. ;post,p. 252. 152; £celi/n v. Templar, 2 Bro. C. C. 
 
 (t) Stol-oey. rw-a;?, 29 Beav. 637. 148; Taylor v. Jones, 2 Atk. 600-3; 
 
 (k) Deivey v. Bayntun, C East, 257. Mathews v. Feaver, 1 Cox, 280; Doe v. 
 
 (w) Hollamby v. Oldriere, W. N. Eoice, 4 Biiig. N. C. 737 ; Goldsmith v 
 
 (1866) 94, under 13 Eliz. c. 5; Doe v. Mussell,h De G. M. & G. 547, 555; Pen- 
 
 Eoutledge, 2 Cowp. 712, 713; Dong- hall \. J-Jlwin, 1 Sw. &. G. •210; TiceddU 
 
 las V. Culverwell, 3 Giff. 251 ; and sec v. Atkinson, I B. & S, 393-9.
 
 24G 
 
 WHAT IS A VALUABLE 
 
 Consideration 
 as between 
 relations. 
 
 Jtosher v. 
 Williams. 
 
 by them (>/) has always been construed to mean " valuable " con- 
 sideration (z). 
 
 In Mathcus v. Feaver (a) Sir Lloyd Kenyon said : " This is 
 a transaction between fatlier and son, and natural love and affec- 
 tion is mentioned as part of the consideration, upon which, as 
 against creditors, I cannot rest at all. It is true it is a con- 
 sideration 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 a near 
 relative is open to more suspicion than one to a mere stranger, 
 inasmuch as it is more likely to be intended, not as a real 
 transfer of property by which the donor puts it out of his own 
 reach (h), but as a feigned and collusive arrangement by which it 
 is secretly understood 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 afi'ection (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 Rosher v. Williams (/) the modern rule for deciding 
 whether a settlement made between relations is for value or 
 voluntary was thus stated by Malins, V.C. : — " If between a 
 father and son, husband and wife, or parent and cliild, or in 
 any way whatever an instrument is executed which ordinarily 
 is called a voluntary settlement, and it turns out tliat, instead of 
 being purely voluntary, any consideration whatever was paid or 
 
 (y) Section G, ante, p. 84. 
 
 (z) 3 Bac. Abr. 31 ; 1 Fonbl. Eq. 271 ; 
 3 Rep. 80 b ; Johnson v. Ler/ard, G JIau. 
 & S. 60. 
 
 (a) 1 Cox, 278, 280. 
 
 {b) Ante, pp. 50, 81. 
 
 (c) Twynes Cane, 3 Rep. 81 b ; Corn- 
 ish V. Clark, L. R. 14 Eq. 184; Crack- 
 null V. Janson, 11 Ch. D. 1, 
 
 (d) Persse v. Pcrsse, 7 CI. & F. 279, 
 318, AVest, Ap. C. 110, 141; Jn re 
 Johnson, 20 Ch. 1). 389, S. C. 51 L. J. 
 Ch. 503 ; ante, pp. 82, 83. 
 
 (c) Moorcx. Croftnn, 3 -J. & Lat. 443 ; 
 and see Jones v. Marsh, Ca. t. Talb. Forr. 
 G4 ; Mijcrs \. JJidc of Leinster, 7 Ir. 
 Eq. R. 14(j, 104. 
 
 if) L. R, 20 Eq. 218.
 
 CONSlDERATroX. 247 
 
 given, or any benefit rcndca-cd to the t^rnnlor, even siicli :\n 
 agreement to relieve the grantor from lliu inmicdiate })aym(;ni 
 of a debt as in Bayspoole v. CuUins ((/), the (.'ourt will anxiously 
 lay hold of any circumstanoos, constituting a consideraliou 
 moving from the grantee to tlic grantor, to take a case out of 
 the category of voluntary settlements." So wlicn a Jiond Jhlr and 
 honest instrument is executed for wliich valuable cruisidcration 
 is given, and the instrument is one between relatives, the Court 
 cannot say that tlie difference between the real value of the 
 estate and the consideration given is a badge of fiaud (/.'). 
 
 Where it is found that the transaction at issue is on the whole in lionest 
 fair and honourable, and not induced by the fraudulent intention tKmolHiTof 
 of defeating creditors or purchasers, the Court is not very particular tonsidorntion 
 
 o ^ "' ^ not strictly 
 
 as to the amount of the consideration (/') ; if it is valuable, and not looked at. 
 so entirely inadequate as from its insufficiency to induce the pre- 
 sumption of fraud, it is enough. If there is any valuable considera- 
 tion for a settlement, the quantum of such consideration is of no 
 consequence under 27 Eliz. c. 'i (A). 
 
 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 (/), and it will not "weigh considerations in diamond 
 scales " {m). 
 
 A simple purchase by a stranger for money paid cannot be set 
 aside at the suit of creditors or purchasers unless there is such in- 
 adequacy as to induce the presumption of collusion, or such, in 
 
 (y) L. E. 6 Ch. 228. 288 ; Hohhs v. Hull, 1 Cox, 445; Thomj). 
 
 (h) In re Johnson, 20 Ch. D., per Fry, son v. Webster, 4 Drew. C32, S. C. 4 De 
 
 J. 397 ; ante, p. 83. (~^- & -T- 600 ; Fott v. Tudhunter, 2 Coll. 
 
 "'(i) As against purchasers, see Boe d. 76; Holmes v. Penney, 3 K. & J. 90; 
 
 Hamerton v. Mitton, 2 Wils. 356 ; Jones Myers v. Dulce of Lcinstcr, 7 Ir. Eq. 
 
 V. Blarsh, Ca. t. Talb. Forr. 64 ; Boe v. 146, 164 ; Grogan v. CooJce, 2 Ball 
 
 .Eolfe, 8 A. &E. 650, 672; Fltzmaurice & B. 234; Wakefield v. Gibhon, 1 Giff. 
 
 V. Sadlier, 9 Ir. Eq. 595, 611 ; Ford v. 401 ; Li re Johnson, 20 Cb. D.3S9, S. C. 
 
 Stuart, 15 Beav. 493; Hewison v. Neyns, 51 L. J. (N.S.) Cb. 503. 
 16 Beav. 594 ; Toiunend v. ToJcer, L. E. (h) Price v. JenMns,5Ch. D. at p. 621 ; 
 
 1 Cb. 446 ; Atldnson v. Smith, 3 De In. re Foster and Lister, 6 Cb. D. 89, 
 G. & J. 186 ; Payspoole v. Collins, L. E. post, pp. 290 et seq.^; and see Lee v. 
 6 Cb. 228 ; and as aeainst creditors, Matheics, L. E. 6 Ir. C. L. 530. 
 Stephens y. Olive, 2 Bro. C. C. 90; Kiny {I) Per Sir W. M. James, V.C, in 
 V. Brewen, ibid. 93, n. ; Stiles v. Attor- Paysjjoolev. Collins; 18 V^\ E. 730. 
 ney-General, 2 Atk. 152 ; Knnn v. Wils- (m) Per Lord Talbot (Forr. G4), as 
 more, 8 T. E. 529; Copis v. Middleton, quoted by Wilmot, C.J., ini^oc v. Mitton, 
 
 2 Mad. 430 ; Jones v. Boulter, 1 Cox, 2 Wils. 358, n.
 
 248 WHAT IS A VALUABLE 
 
 fact, as might liave 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 {u), " the adequacy of 
 the consideration is for the parties to consider at the time of making 
 the agreement, not for the Court when it is sought to be enforced." 
 So Lord Westbury laid down the rule in Tcnncnt v. Tcnncnts (^j) : 
 " It is trae ihat 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 imposi- 
 tion." 
 
 Since the Sale of Eeversions Act, 18G8 (31 Vict. c. 4), it is con- 
 ceived the rule as to inadequacy of price in sales of reversions is 
 the same as with regard to estates in possession {q). 
 
 Real question, Apart from this, the question is, in all manner of conveyances 
 tion valuable ? f^^^d settlements, not whether the consideration is adequate, but 
 w^hether it is valuable (r), so as to satisfy the words of the respect- 
 ive statutes. The Court is not, however, tied down by the exact 
 words of the statutes so as to be compelled to hold every consi- 
 deration which appears to be valuable good against creditors or 
 purchasers. So where it sees a consideration is made up with a 
 view to defraud creditors, the Court will lean against it and reduce 
 it to what is just and equitable (s). 
 
 As against purchasers, under 27 Eliz. c. 4, the question whether 
 a settlement is voluntary or not is frequently the only question that 
 
 (n) Altliougli it is laid down that mere is of itself evidence of fraud. A deed 
 
 inadequacy of price will not of itself make made on a fictitious consideration cannot 
 
 a sale invalid as between the vendor and be supported on the ground of natural love 
 
 purchaser {Harrison v. Guest, 6 Ue G. and affection : see Wlllan v. IVillan, 2 
 
 M. & G. 424, 8 H. L. C. 481), yet where Dow, 274; Bridfjman v. Green, 2 Ves. 
 
 there are other suspicious circumstances C27, A\'iln]. 58, 2 Com. Dig. 640 ; 
 
 it may undoubtedly do so: see Clarkson Boii:en\. Kirwan,L\. & G. t. Sug. 47,66. 
 
 V. HaniL-ay, 2 P. Wms. 202 ; Wood v. (o) L. R. 9 Q. B. 57. 
 
 Ahrey, 3 Mad. 417 ; Davies v. Cooper, (p) L. R. 2 H. L. So. 6. 
 
 5 My. & Cr. 270 ; Clark v. Maljms, 31 (q) See Fry, Sp. Pf. 2nd ed. ch. 7 ; 
 
 Beav. 80, S. C. low. R. 613,677; Baker notes to Chesterfield v. Janson, AVh. & 
 
 V. Monk, 33 Beav. 419; Kerr, Fraud and Tu. L. C. 6th ed. vol. 1, 686 et seq. 
 
 IMistake, 2nd ed. 160. And it may be said (/•) Basset v. Xosworthi/, Finch, 102. 
 
 that in this class of cases the mere fact of («) Lord Hardwicke, in Blount v. 
 
 the conveyance having been ostensibly a Dovijhti/, 3 Atk. 485 ; see Boicen v. Kir- 
 
 sale for full consideration, while the con- nrni, LI. & G. t. Sug. 47, 65-6 ; Levy v. 
 
 tiJeration was in fact grossly inadequate, Crei'jhton, 22 "W. R. 605.
 
 CONSIDERATION. 249 
 
 has to be decided ; for that is frequently the test whether a trans- 
 action is or is not fraudulent. 
 
 As the fraud under this statute is more purely statutory and 
 constructive than that under 13 Eliz. c. 5, the Courts have buen 
 at least equally lenient in allowing the validity of conveyances, 
 and have upheld them upon (if anything) slighter considerations 
 than those whicli 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 (/), 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 consideration the conveyance to him is not likely to be " in- 
 fected with the doctrine of voluntary conveyances " (k). 
 
 An act which the doer could have been compelled to do cannot l.^Kal 
 in general be regarded as voluntary. A legal obligation to make ['ho' only test. 
 a provision for wife or family is sufficient to support a settlement 
 on them {v). It is not the spontaneous act of the settlor, and the 
 intention is taken to have been to do tliat which he might have 
 been compelled to do, not to defeat his creditors ; but no other 
 considerations, of the good of science or learning, and no moral 
 obligation, however strong, can make a valuable consideration {iv). 
 This is clearly exemplified by the case of Gil ham v. LocLx (r), in 
 which a bond given by a man since bankrupt was held voluntary. 
 It appeared that some time after the bankrupt's marriage with L. 
 it was discovered that he had, at the time of 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 settlement had a Ej- parte 
 right to be repaid by the husband, on his 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 
 
 {t) See III re Johnson, 20 Cb. D., per (w) Keennn v. Ilandlci/, 2 D. .T. & S. 
 
 Fry, J., 397 ; ante, p. 82. 283 ; Thompson v. Wthshr, 4 Drew. G.;-.' ; 
 
 (m) PerWilmot,C.J.,inii'oe v. J/(7;o», tidies v. Attorney-General, 2 Atk. k'.J ; 
 
 2 Wils. 358, note to 3rd ed., speaking post, p. 255 ; and see 6W(/s»ii7/t v. ii'«Mf//, 
 
 probably of /o«es v. Marsh, Ca. t. T.ilb. 5 De G. M. & (i. 547, 555; ante, p. 54. 
 
 Forr. 64 ; In re Foster and Lister, (•') 9 Ves. 612. 
 
 Ch. D. 87. (y) See also Mattluws v. /. r, 1 
 
 {v) See ante, p. 244 ; post, pp. 297 Mad. 558. 
 
 et seq. {^) Ex imrte liohinson, 1 Moll. 291.
 
 250 
 
 WHAT IS A VALUABLE 
 
 trustees, secured the £1000 by mortgage. On the husband's bank- 
 ruptcy his assignees disputed the mortgage. Lord Chancellor Hart 
 said the question was, whether the contract 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 trustee could not have acted adversely so 
 as to compel payment, and therefore the mortgage was void against 
 the creditors as a nudum pactum. 
 
 Settlement in But where a man on his marriage acquired (a) money through 
 monev of wife ^^^^ wifc, and Contracted in her favour in the event of his bankruptcy, 
 acquired by q^, cj-Qf^ted a trust of liis propcrtv to take effect in that event, to the 
 
 husband lor j. j. .. ' 
 
 value. extent of her money, such contract or trust, to the extent of such 
 
 money, was deemed to have been made for valuable consideration, 
 and therefore to be good against his creditors (h). 
 
 wiien a loan A mere advance by way of loan is, of course, sufficient considera- 
 siJeradon^""' ^^"^'^^ ^°^ ^ conveyance by way of security ; and even if secured by 
 a mortgage may sometimes amount 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 (r). So, too, where the advance forms part 
 of an arrangement dealing w^ith mixed interests, which could not 
 otherwise have been effected (d) ; and although the person ad- 
 vancing the money does not occupy the position of a trustee or a 
 relation, as a settlement on children or wife in consideration of a 
 loan by a third person (r). 
 
 Holmes v, 
 Penney. 
 
 In Holmes v. Penney (/) A. l)cing entitled to a life 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 mainte- 
 nance of A., his wife and cliildren, or any of them, at the absolute 
 discretion of the trustees. It appeared that the brother had done 
 
 (rt) But see now the Married Women's 
 Property Act, 1882 (45 & 4G Vict. c. 75), 
 B8. 1, 2, 5. 
 
 {h) Ex 2mrte Yoting, Buck, 187 ; and 
 see the Bankruptcy Act, 1881! (lO & 47 
 Vict. c. 54), s. 47. 
 
 (c) Thompson v. Websler, 4 Drew. 028, 
 S. C. 4 De G. & J. GOO. 
 
 {(1) Kunn V. Wdsmore, 8 T. R. 521. 
 
 (e) Ford V. Stuart, 15 Beav. 493 
 JRai/fijwoIe v. Collins, L. 11. Ch. 228 
 and see WJieelcr v, Caryl, 1 Amb. 121 
 post, p. 297. 
 
 (/) 3 K. & J. 90.
 
 CONSIDERATION. 251 
 
 his best to lind 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 deljt as being on valuable 
 consideration. 
 
 In BayspooU v, Collins (g) (decided under 27 Eliz. c. '!•), A. C. Baufipoole v. 
 
 was owner of property subject to a mortgage, the interest on which 
 was in arrear, and the mortgagees had given notice to the tenants 
 to pay their rent to them, and threatened to exercise their power 
 of sale. Under these circumstances, A. C.'s solicitor agreed to 
 advance to A. C, on his note of hand, suihcicnt money to pay the 
 interest and other outstanding debts, on condition of his settling the 
 property, subject to the mortgage, on his wife and children, which 
 he accordingly did. This settlement was held good against a sub- 
 sequent 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 the law 
 — namely, by holding that a small and inadequate consideration is 
 sufficient to support such a settlement under the statute of Eliza- 
 beth — has diminished the evil of the mischief. But so it is, that 
 a very small consideration is admitted to be sufficient. If tliis 
 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 authorities are sufficient to 
 shew that such a consideration, although, merely by way of loan 
 secured by a promissory note, is adequate to support such a settle- 
 ment." 
 
 Under this head may be classed the case of Pott v. Todhuntcr (Ji), Pott v. lo<!- 
 whicli was a case of an inoperative will, in order to effect the ful- 
 filment of which a friend of the family, under difficult circum- 
 stances, effected an arrangement with all the persons interested, 
 and by his tact and management secured to A. B., a married 
 woman, the property whicli was intended for her by the invalid 
 will. He did all tliis on tlie express agreement and understand- 
 ing that, witli regard to such personal estate as should be procured 
 
 ((/) L. R. G Ch. 228. (h) 2 Coll. 70 ; post, p. 278.
 
 252 
 
 WHAT IS A VALUABLE 
 
 Existing 
 debt. 
 
 Security for 
 debt. 
 
 Frcsli advance 
 alitor. 
 
 generally by these arrangements, he shoiikl have power to make 
 sucli settlement upon A. B. and her family as he should thmk lit. 
 The settlement on them having been executed, it was upheld 
 against the husband's creditors, although the property was before 
 the settlement vested in liim 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 considera- 
 tion (i), is not in general so good a consideration as money 
 actually paid at the time, even under the statutes of Elizabeth, 
 because it partakes more of the nature of a preferential pay- 
 ment of the debt than a fair sale (A). Under the Bankruptcy 
 Acts it is one which is naturally viewed with still greater sus- 
 picion, for their object is to pay all the creditors rateably, and 
 any conveyance in satisfaction of a debt is prejudicial to that 
 arrangement (/). 
 
 A conveyance by way of security for a pre-existing debt comes 
 under the same category (???). 
 
 A conveyance made to secure a loan {n), or a further ad- 
 vance {o) made at the time of the execution of the 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, wdiether the new 
 advance was substantial, or was merely a small sum paid to give 
 a shew of consideration to the transaction (ji). 
 
 (!) Twyne's Case, C Enp. 80 b ; 
 Belcher v. Prittie, 10 Bing. 408. 
 
 (/;) See Martin v. WiUyams, 20 L. T. 
 (N.S.)352 ; ante, pp. 131 etscq. ; Ilolhlrd 
 V. Anderson, 5 T. II. 235; I'linnh v. 
 Flintt, 2 Anstr. 439, 440; and other 
 cases, ante, pp. 104 et seq. 
 
 {I) See ante, pp. 12, 100 et seq. 
 
 (m) Oriental Uankinrj Co. v. Coleman, 
 3 Giff. 11 ; Sm!th v. Cannan, 2 E. & U. 
 35 ; Woodroffe v. Johnston, 4 It. Ch. 
 319!; Kj: j)arte Hodcjhin, L. l\. 20 Eq. 
 74G; E.r parte Field, 13 Ch. D. 100, n. ; 
 ante, pp. 04 et seq. 
 
 (n) rennell v. Reynolds, 11 C. B. 
 (N.S.) 709; Iluttony. Cruttwell, 1 E.& B. 
 
 15, 21 ; Harris v. Jilclcctt, 4 II. & N. 1 ; 
 see also Cook v. Walker, 3 \V. R. 357. 
 
 (o) Holmes v. Penney, 3 K. & J. 90 ; 
 Weaver v. Joide, 3 C. B. (N.S.) 309. 
 
 (]}) See Ex 2)arte Bailey, 3 De G. M. 
 «& G. 534 ; Yoiuuje v, Waud, 8 Ex. 221 ; 
 Hale V. Allnutt, 18 C. B. 505 ; Graham v. 
 Chapman, 12 C. B. 85 ; Bell v. iSlmpson, 
 2 II. & N. 410; i^ndth v. Tlmms, 7 
 Jur. (N.S.) 1015 ; Goodrlche v. Taylor, 
 2 I). .T. & S. 135 ; Lacon v. Liffen, 
 32 L. J. Cli. 25, 315; Loina.r v. 
 Bu.rton, L. II. G C. P. 107; Ex parte 
 Fisher, L. II. 7 Ch. G36 ; Ex parte 
 Jfuuxwell, 23 Ch. D. G26 ; Ex parte 
 Johnson, 2G Ch. D. 338 ; ante, pp. 95, 96.
 
 CONSIDERATION. 
 
 253 
 
 The continuance of tlie rent reserved by the former lease is a ( ontmuanco 
 
 . .of rent, &c. 
 
 good consideration for a promise to grant the lease in reversion {(j), 
 but the consideration of money already laid out is no considera- 
 tion for the promise to renew a lease, and money afterwards 
 laid out will make no difTerence (r) ; and of course the giving 
 up of his tenancy by a tenant at will is no consideration (.s). 
 In OwcM v. Owen (/) it was held tluit a lease at 110 a year, 
 to commence at the death of the lessor of property worth 127 
 a year, was a good consideration against a mortgagee (/'). 
 
 It has been decided that a promise by a plaintiff not to apjtly rromisc not 
 for costs in bankruptcy, to which he had a contingent right, if costs good, 
 the judge chose to give them to him, is a sudicicnt consideration 
 for a promise of the defendant to pay those costs {v). But a But not 
 promise to conduct proceedings in bankruptcy so as to injure as nrocetfjings in 
 little as possible the debtor's credit is not a good consideration '^''"'''■upicy. 
 to support a contract {ic). 
 
 Forbearing to prosecute for obtaining money Ijy false pretences Compounding 
 is an illegal consideration (3;), and so is every compromise of a P™^®^" '°°^" 
 prosecution for a felony {y) or a misdemeanour 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 («). 
 
 The consideration for a judgment which is obtained hy a point Consideration 
 tried need not be proved, but it shall be intended good (Jb) ; but tried or 
 he who upholds a judgment by confession must prove it to be for '^°° ^^^ ' 
 a just debt {c). 
 
 A promise by an eldest son to his father on his death-bed to Tromisc bj 
 make a provision for the younger children out of the property devisee' 
 
 {q) Moore v. Crofton, 3 J. & Lat. 438. (.)) Cluhh v. 7/«f50)?,'18 C. B. (N.S.) 
 
 (r) llohertson v. iSt. John, 2 Bro. C. C. 414. 
 
 140. (/y) Williams \. Jhnilcy.lj. K. 1 H. L. 
 
 {s) Kent V. Prat, 1 Brownl. G. 200 ; Flower v. Sailkr, 10 Q. B. D. 
 
 \t) 3 H. & C. 88. 572. 
 
 {u) See also Bainhridfjc v. Firmstonc, (s) Coppoch v. Bower, 4 JI. & W. r>Gl. 
 
 8 A. & E. 743 ; Wilkinson v. Olivcira, (a) Westhy v. Westhy, 2 D. & ^Var. 
 
 1 B. N. C. 490. 519; post, pp. 310, 311. 
 
 (y) Bracewcll v. Williams, L. li. 2 (b) Keenan v. Handley, 2 D. J. & S. 
 
 C. P. 196. 283. 
 
 (w) Ibid. ('■) Sanders v. , Holt, 327.
 
 254 
 
 WHAT IS A VALUABLE 
 
 Indemnity. 
 
 Covenant. 
 
 Giving up a 
 benefit 
 voluntarily 
 conferred in 
 exchange for 
 something a 
 valuable con- 
 sideration. 
 
 left to liim has been held sufficient consideration to support a 
 bond made in pursuance of such promise (d). 
 
 Incurring liability for another person is a good consideration. 
 In Worslcy v. Dcmattos (e), Lord Mansfield said : " The indem- 
 nity which is the consideration of the deed in question I allow 
 to be a good, valuable, and true consideration." 
 
 A covenant Ijy a son to pay his father's debts is a good con- 
 sideration (/). A covenant of indemnity in a settlement has 
 been held sutficient to support it (g) under 27 Eliz. c. 4. So 
 also a settlement of leaseholds is supported by the usual cove- 
 nants expressly or impliedly entered into by a lessee (//). 
 
 In Eoshcr v. Williams (i) a conveyance of real estate other- 
 vise 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 performed. It was held by 
 ]\ralins, Y.C., that as no consideration was shewn 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 consideration 
 for the deed under 27 Eliz. c. 4. 
 
 A^oluntary instruments, unless obtained by fraud, are good 
 between the parties to them and all other persons, 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 (k) ; 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. 
 
 {(1) Eales V. Gee, Barn. Ch. 397. 
 
 (e) 1 Burr. 474 ; Hkidmore v. Brad- 
 ford, L. B. 8 Iq. 1 
 
 (/) i:kott V. iScott, 18 Jur., per Lord 
 Cranworth, L.C., 758. 
 
 (</) Townend v. Taker, L. B. 1 Ch. 
 446. 
 
 (/() JTorrods v. nnjlu, 9 Ch. D. 183, 
 
 1S4 ; and see rrice v. Jenhlns, 5 Ch. D. 
 619 ; infra, pp. 257 et seq. ; I)av. Brec. 
 4th ed. vol. 2, pt. 1, p. 419, note (f/). 
 
 (/) L. B. 20 Eq. 210; and see Midlins 
 V. GuUfoyle, 2 L. B. Jr. 108-109. 
 
 (/.•) Sec ante, pp. 68 et seq., 208, 209 ; 
 post, pt. V. ch. iii. et seq. ; In re Wal- 
 Jiawpton Estate, 26 Ch. U. 391.
 
 CONSIDER ATi0^f. 255 
 
 In a case of this kind (/) a voluntary l)on(l was given np to F.j- parte 
 the obligor of it before Ins baukruiiLcy, 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 jiaynient of 
 it might have been enforced. The obligor, instead of payment, 
 gives another bond which was not voluntary ; being given upon 
 cancelling the other security. If there is mala fides or a fraudu- 
 lent intention in the sense of attempting to substitute an available 
 security for one that could not avail against creditors, it is other- 
 wise ; 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 substituted is not voluntary, but stands on a 
 sufficient consideration. 
 
 In ^tllcsY. Attorney-General (in) the Duke of Wharton had made >Stil(j v. 
 
 11-1 Attornaj- 
 
 two gifts of annuities to Dr. Young, which were disputed by juilg- Gmcral 
 ment creditors. The first annuity was expressed to be in consi- 
 deration that the public good is advanced by the encouragement 
 of learning and the polite arts, and of the Duke's being pleased 
 with Dr. Young's attempts therein, and in consideration likewise 
 of the love he bore hmi. 
 
 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 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 con- 
 sideration 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 annuity offered him l)y Lord Exeter, and this Lord Hardwicke 
 said certainly amounted to a valuable consideration. For it has 
 been truly said it will eriually arise where a person gives up a 
 
 {I) 19 Ves. 218. See also Kixon v. Fitzmaurice v. Sadlier, 9 Ir. Kq. b'Jo ; 
 
 Hamilton, 2 D. & Wal. 364, 381; t>tiks \. AUorncy-Gcncral, 2 Kik. \b2, 
 
 Mcfjgison v. Foster, 2 Y. & C Ch. et infra. 
 336; Barnes v. IleiUey, 2 Taunt. 184; (w) 2 Atk. 152.
 
 256 
 
 ASSIGNMENT OF LEASEHOLDS 
 
 certain pecuniary 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 niis^dit he 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 annuity ceased to be a 
 voluntary grant. 
 
 Auotlier 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 voluntary. 
 
 Two propositions (confirmed by subsequent cases) may be 
 deduced from this case : 
 
 1. The giving up of a pecuniary advantage is as good and 
 valuable a consideration as money paid, although the advantage 
 given up would only have been in return for services rendered or 
 work done (oi) ; and this seems to be what is meant by saying that 
 loss is as good a consideration as profit (o). 
 
 2. AMiere an annuity secured by a voluntary instrument falls 
 into arrears, a fresh security given for those arrears will be sup- 
 ported against creditors or purchasers ; for the instant the arrears 
 accrue they are, as between 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 arrears given up and something given 
 in lieu of them — will be for valuable consideration (j)). 
 
 Assignment cf The question whether an assignment of leaseholds can ever be 
 
 value under Voluntary under 27 Eliz. c. J, or whether there is always an express 
 
 27 Eliz. c. 4. Qj, jiiipiied consideration moving from the assignee, according as he 
 
 does or does not expressly covenant to pay the rent and perform 
 
 Giving up a 
 
 pecuniary 
 
 advantage. 
 
 Arrears of 
 voluntary 
 annuity. 
 
 («) Towncndx. ToJcer, L. 11. 1 Ch. 
 460 ; see also Lady Mary Jferbcrt v. 
 J^arl Ponis, 1 Bro. P. C. byTonil. 355. 
 
 (o) 1 Cb. Ca. 74. 
 
 (;)) Gilliam v. Lode, per Sir W. 
 Grant, M.R., 9 Yes. 614; Kx iiarlc Dc 
 (Irouchii, 3 Mont. & A. 27 ; see also 
 Greaves v. IlouldUch, 2 Price, 147.
 
 FOR VALUE OR VOLUNTARY. 257 
 
 the covenants of the lease, has been the subject of several recent 
 decisions. 
 
 In Price v. Jcnlclna (q) leaseholds were assigned by a settlement /'/•'>/• v. 
 made in contemplation of re-marriage to trustees on certain trusts"^'"''""' 
 after payment of all out-goings. The trustees did not covenant to 
 pay the rent or perform the covenants of tlie lease. James, L..T., 
 said : " The trustees came under a responsibility for payment of 
 rent and performance of the covenants of the lease. It niiglit be 
 such a responsibility that a lessee might l)e 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 conse- 
 quence under the statute of Elizabeth. I think lliat here there 
 was a valuable consideration suflicient to support the settlement 
 against a subsequent purchaser." 
 
 The principle of the decision in this extreme case seems to show 
 that an assignment of leaseholds must clIwcitjs be for value under 
 the statute 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 
 attached to the trustees, who were bound by no cxj^rcss covenant, 
 but only by the implied obligation to perform the covenant in the 
 lease {r). This seems to have been the view of Bacon, C.J., in Ej- Ex parte 
 'parte DohU (.s), where the assignment of leaseholds was in considera- ^'^^^*^' 
 tion of an annuity of £50 a year. It did not appear whether the lease 
 did or not contain a covenant not to assign without the licence of 
 the lessor. The assignment was held valid. Bacon, C.J., said : 
 " Whether the lease contained a covenant against assignment or 
 not would not affect my decision. It has been stated in the Court 
 of Appeal in the case of Price v. Jcnldns (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. Rig'by\{u), Lord Justice Fry (then ^h. Jusdcc 
 Fry), following Price v. Jenkins (i), held that a covenant l>y an 
 
 (q) i> Oil. D. G19 ; but see Thomas v. (g) 2G "\V. R. 407, affirmcJ on appeal ; 
 
 Thomas, 2 Q. B. 851. and see JJjc parte Jldlman, 10 Ch. D. 
 
 (r) See Dav. Prec. 4tli ed. vol. 2, pt. 1, G24. 
 
 419, note(d) ; and comments of Hall, Y.C., {t) 5 Ch. D. G19. 
 
 in Trowell v. Shenton, 8 Ch. D. 321. («) 9 Ch. U. 183, 1S4. 
 
 S
 
 258 ASSIGNMENT OF LEASEHOLDS 
 
 assignee of leaseholds to pay the rent and perform the covenants 
 of the original lease was a valuable consideration. 
 
 Jnre liidler. In III TC Ridlo' (w), a case decided under lo Eliz, c. 5, the case 
 of Price V. Jenkins (j:) was again discussed by the Court of Appeal. 
 Cotton, L.J., there said : " It has been decided under the statute of 
 27 Eliz. c. '1; that a voluntary conveyance, though honestly and 
 fairly made, was fraudulent as against a subsequent purchaser from 
 the settlor. Price v. Jenkins (:<;) qualified that doctrine, and decided 
 that the grantee's undertaking the liability for rent was sufficient 
 to support a settlement 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 the recent case of In re Marsh and Earl Granville (y), 
 Bowen, L.J., seems to have accepted the decision in Price v. 
 Jenkins (.r) in its widest sense. It was, he said, a case in which 
 there was an assignment of leasehold property with a liability to 
 perform certain covenants attached to it, and it was held that the 
 assicrnment was therefore a convevance for valuable consideration. 
 
 The conclusion from these cases seems to be that «;2y 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 
 assignment. 
 
 Prices. In the Irish Courts, however, under the corresponding Act of 
 
 iiiUy followed 10 Car. 1, sess. 2, c. 3, the decision in Price v. Jenkins {.c) has been 
 in Ireland. ^.^.^iewed and not followed to its full extent. 
 
 In III re Greer (s) it was held that an assignment of leaseholds 
 subject to a substantial rent and to onerous covenants undertaken 
 by the assignee was not voluntary. 
 
 But in the case of Ice v. Mathcus (a), decided in the Irish Court 
 
 («•) 22 Ch. D. 74, 82. {z) 11 Ir. E. Eq. .002. 
 
 (a-) 5 Ch. D. G19. (a) L. R. G Ir. 630 ; and see Gardiner 
 
 (y) 24 Ch. D. 11, 2.5 ; and see Re v. Gardiner, 12 Ir. C. L. 305, where an 
 
 i/wZ/(a7n, 32 W. R. 1013, aflirmed on iidif- express covenant in an assignment of 
 
 ferent point, 33 W. R. 788; Coote, Mort- loaseliolds per sc was lield not to be a 
 
 gages, 5th ed. 580, 587 ; and la re Foster, valuable consideration ; followed also in 
 
 54 L. J. (N.S.) Ch. 73; and see Greeny. Hamilton v. Molloy, 5 L. R. Ir. 339; 
 
 Paterson, 32 Ch. D., per Cotton, L.J., 104. liorhc's Estate, 15 Ir. Ch. R. 327. 
 
 I
 
 FOR VALUE OR VOLUNTARY. 05O 
 
 of Appeal in 1880, wlicre the assignment of a lease sul.ject to ;i 
 rent of £1 10^. yearly was in consideration of os. and nalui-al love, 
 and the deed contained no covenant by the assignee, the principle 
 of the decision in rricc v. Jenkms (h) was dissented from, and tlie 
 deed was lield voluntary. 
 
 It was there said Ijy ( 1ii(>f Justice ]\ray that tlie decision in Price 
 V. JenMus (h) amounted to the simple legal axiom tliat no assi-jn- 
 ment of a leasehold subject to any rent could possibly be voluntary 
 so as to be invalid against a subseciueut sale for value, irrespective 
 of the amount of rent and value of the property. The real ques- 
 tion, it was said, is, Was the dealing with the property a bargain, 
 or a gift ? A gift of a valuable interest in land is not the less 
 a gift because the property so given carries with it certain obliga- 
 tions. The gift is diminished, but its character is not changed. 
 
 It has not been expressly decided whether a settlement which is fonveyanre 
 botli a conveyance of freeholds and also an assignment of lease- "IJ/'Jl'ili ''!,". 
 holds can be sujiported as for value under 27 Eliz. c. 4 either '"*^"' ""^ ''■'"^'^' 
 
 in 1 11111 ••' liolJs, wLfilhcr 
 
 Wholly, or only as to the leaseholds, mereli/ because the assignee voluntary 
 becomes liable to pay the rent and perform tlie covenants of the c"?"^ '' ^^'^ 
 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 tlie 
 settlement as for value is merely to destroy the settlor's power of 
 selling the property by virtue of that statute (c). 
 
 The question what is a good consideration under 13 Eliz. c. o, Good consi- 
 and what is a good consideration under 27 Eliz. c. 4, it will he ?,/T4r««mr 
 seen, is not always the same. ""'^<^'' •^o**' 
 
 statutes of 
 
 So in Price v, Jenkins {d) a principle was laid down 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 Li re Rid- In re BidUr. 
 kr (r) l)y Jessel, IM.E., who said that, treating Price v. Jcnicins (b) 
 
 (h) o Ch. I>. 619. 
 (c) In re Ridler, 22 Ch. D. 81, 82 ; {d) 5 Cb. D. 619 ; and see Ex parte 
 
 1)1 re Marsh and Earl Granville, 24 Hillman, 10 Ch. D. 624, 026. 
 Ch. D. 11, 18, 21, 25, 26; In re Lulham, (e) 22 Ch. D. 74; ami see Green v. 
 
 32 W. E. 1013, S. C, affirmea on a dif- Faterson, 32 Ch. D., per CoUon, L.J., 
 ferent point, 33 "\V. R. 788. 104, 105. 
 
 S 2
 
 2G0 VALUABLE CONSIDERATION 
 
 as well decided, it had no bearing on cases under 1 3 Eliz. c. 5. Ho 
 there examined the meaning of the term " good consideration " 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..T., pointed out that the decision in Price v. 
 Jenkins {y) on 27 Eliz. c. 1, did not touch the question whether a 
 settlement was or was not made with intent to defeat or delay 
 creditors. The mere fact tliat 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. 
 
 Family The real difficulty on this subject arises in questions on family 
 
 airangemen s. pj.Qyigions and settlements, and mutual arrangements 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 discharge of 
 a moral obligation or as the provision for a family {li). 
 
 Limitations in AVhere the limitations impeached as voluntary form part of a 
 settlements, settlement founded on the consideration of marriage, it frequently 
 happens that, although they do not come directly within, and are 
 not properly speaking supported by, the valuable consideration of 
 marriage, yet the marriage is the primary and ostensible ol^ject of 
 the settlement. "Whether certain limitations in it are therefore to 
 be upheld as for value, or are supported by other considerations 
 arising concurrently with that of the marriage, or are merely out- 
 side limitations unsupported Ijy it, and tlierefore voluntary, are 
 questions intimately connected with the subject of the extent and 
 nature of the marriage consideration, whicli will be discussed here- 
 after (i). 
 
 Slightly The principle, too, is somewhat dilterent ; for, as was said by 
 
 different. Barou Eyre in Jones v. Boulter (k), distinguishing that case (in 
 
 which a wife gave up her dower) from Boe v. Mitton {I), and cases 
 
 on the extent of the marriage consideration, " The truth is, that 
 
 (/■) Section C. (/) Post, pt. iv. cli. iv. 
 
 (g) 5 Ch. D. G19. (/.•) l Cox, '2[uj. 
 
 (A) lilgden v. Vallier, 2 Ves. 258. (/) 2 Wils. 35l3.
 
 IN SETTLEMENTS. 2G1 
 
 when something was given up by the prirlics, that must necessarily 
 extend to all the limitations ; where marriage only is considereil, 
 they may be fairly and naturally restraiucd." 
 
 It is proposed, then, to consider what post-nuptial and other BonA fido 
 
 , 8clllciii<nts 
 
 family settlements, not made on marriage, are voluntary, and what not on mar- 
 can be upheld against creditors or purchasers as founded on valuable '"'■''°'^' 
 consideration ; and for that purpose the inquiry will be limited to 
 bona fide settlements. 
 
 Individual cases on the subject must generally depend on their 
 own particular circumstances, and the record (if them is only of 
 practical utility where they go towards establishing principles 
 which are of general application (m). The precedents on this point 
 actually decided on the statutes of Elizabeth are comparatively 
 few, but the question whether a contract is voluntary or not is often 
 at issue independently of these statutes. 
 
 The Court, for instance, will not specifically enforce agreements Question of 
 
 .. T.i voluntary or 
 
 which are voluntary (?i) ; and often, ni decidnig whether an agree- „ot arises in 
 ment is or is not voluntary, for the purposes of specific performance, Jpe^Jnc'rcr- 
 acts on the same principles as are applicable to cases on these foi-mance. 
 statutes (o). It may be stated that, except in a few cases of 
 family arrangements {x>), contracts which would have been enforced 
 between the parties will be good against purchasers or creditors. 
 
 In Mijddkton v. Kenyon (q), before Lord Loughborough, A., Myd^lkton y. 
 having an estate in fee of £6000 a year in value, and being also 
 tenant for life without impeachment of waste of another estate of 
 the annual value of £5000, with the reversion in fee after an estate 
 tail in B., his only son by a former marriage, became greatly 
 indebted by mortgage, annuities, and otherwise, to the amount of 
 £100,000. A. and B. joined in conveying both estates to trustees, 
 upon trust by sale or mortgage, or by sale of the timber, or out of 
 the rents and profits, to pay debts, and to apply so much of the 
 rents and profits of what should remain unsold as they should ihink 
 proper as a sinking fund, and to pay the residue to A., and tu 
 
 (m) Corlctt V. Badchjc, U Moo. P. C. (o) Ford v. Stuart, 15 Beav. 501 ; 
 
 121. Fry, Sp. Pf. 2n(l ed. 103, 194. 
 
 (u) See post, pt. vi. cb. i. (p) See post, pp. 272 ct seq. 
 
 (q) 2 Ves. Jun. 391.
 
 262 
 
 VALUABLE COXSIDERATION 
 
 settle tliG remaiiimg trust estates (subject to an annuity of £1000 
 to B. for the joint lives of liini and A.) ui^on A. for life, Avithout 
 impeachment of waste, with power to lease for twenty-one years 
 only, remainder to trustees to preserve, &c., remainder (subject to 
 a jointure to the wife of A. and to portions for children) to the 
 joint appointment of A. and B., and, in default thereof, to the 
 appointment of B. surviving, and in default thereof to B. in tail 
 male, remainders to the other sons of A. in tail male, remainder to 
 B. in tail general, remainder to the daughters of A. in tail with 
 cross remainders, remainder to B. in fee, with powers of leasing 
 and full powers of management in the trustees. 
 
 On a bill filed by A. to be relieved against this settlement, one 
 of the grounds taken by the counsel for the plaintiff was the want 
 of consideration, A. having been deceived in a notion of the expe- 
 diency of his son's co-operation, whereas in truth he was perfectly 
 competent, out of the unsettled estate, to effect all the purposes of 
 tlie arrangement without his son ; but that, although the son's 
 joining was no effective accommodation, he, the son, had been a 
 most disproportionate gainer by the transaction witliout any sacri- 
 fice or concession on his part. But the Lord Chancellor decided 
 that, as to the alleged want of value to support the settlement, there 
 was no colour for that imagination ; there was consideration enough 
 to support the deed at law against creditors or purchasers, and there 
 was consideration enough, not only to support the beneficial limi- 
 tations of the estates to his son, but all the other limitations in 
 which the father was concerned. 
 
 Concurrence It may be considered an established jirinciple that, if a person 
 «omri/terest ^'^ose concurrence the parties think essential join in a settlement, 
 his concurrence will be deemed a valuable consideration, although 
 he did not substantially part with anything (/•). The considera- 
 tion depends, not so much on wdiether the concurrence passed any 
 interest, as on whether it enabled a settlement to be made .which 
 could not otherwise have been effected (.s). 
 
 a valuabl 
 consideration 
 
 (r) Sug. V. & P. 14th cd. 719; 
 Myddleton v. Kenyan, supra ; Roc v. 
 MUton, 2 AVils. 350 (wlierc, althougli tlic 
 Kcttlement was on marriage, tlie samo 
 principle applies: see post, pt. iv. cli. iv.); 
 JliU V. UiaJiop of Ej:ctcr, 2 Taunt. C'J ; 
 
 GhUij v. Bishop of Exeler, 5 Bing. 171, 
 '.' Moo. & P. lOo, 266, 276 ; Acraman v. 
 ('orhcit, 1 .1. & If em. IK). 
 
 (*•) JIaniian \. Jlirhanh, 10 Hare, 81,
 
 IX SETTLEMENTS. 2G3 
 
 So even the conciirronce of a married woniaii has been licUl to Concmrcr.co 
 
 of feme 
 
 he a vahiable consideration uilh respect to property settled to her covert. 
 separate use, without power of anticipation ; for it enured to 
 release the trustee from all claims as to past income, though she 
 could not pass or affect any future interest (i). 
 
 In a case (u) before the Lord Chancellor of Ireland (v) two ^^y.rf v. Duke 
 separate estates were the subject of a family settlement. Of one 
 of these the father was seised in fee, 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. II. in tail. The 
 father being embarrassed, 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 incum- 
 brances, and, at the request of D. L, to raise by sale or mortgage 
 sufficient sums of money to pay I). L. what might be due to him ; 
 the residue to be subject to such annuity for the father as D. L. 
 should appoint, tind to raising £30,000 for younger children (subject 
 to restriction by D. L.), and to an annuity to the son W. "VV. H. 
 during his father's life ; and after the father's death, and so soon 
 as the incumbrances and £30,000 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, arain, a bill l>y creditors of a tenant for life of real estate Wakejleldv. 
 
 -1 1 1 4. <. f Gibbon. 
 
 impeaching part of a family arrangement whereby the tenant tor 
 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 pre- 
 viously 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 (?'-•). 
 
 But the concurrence of a necessary party in a conveyance does ^;;;^™^ 
 not amount to a consideration for a limitation when, from the party only' 
 
 supports tlial 
 ft) Harman v. mdiunh, 10 Hare, SI ; {v) Sir EdwarJ Sugden. wLti^'e'i.'^ 
 
 post, p. 2.;9. ('^0 ""'••''.M^ '■■ '-'''^'"^ ' '"*[• •'.' ■• 
 
 (u) Jfycrs V. Bul-c of Ldnster, 7 Tr. .nnd see Benvctt v. IJ,rnard, K" Ir. hq. 
 Eq. E. UC. 1^- ^8-*'
 
 264 VALUABLE CONSIDERATION 
 
 interests of the parties and from other circumstances, it is shewn 
 not to have been made for the benefit or at the desire of such party, 
 and that the concurrence of such party was not part of the con- 
 tract (.r). 
 
 Settlement to Tenant for life and remainderman cannot resettle the estate to 
 
 Fiirvivor m fee 
 
 by tenant for tlic survivor in fee SO as to prevent them both from selling to a 
 main'lcrman. purchaser (ij). So where H., tenant for life of copyhold, and B., 
 remainderman in tail, with remainder to H. in fee, intending to 
 join in an absolute 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 (s). 
 
 Settlement by The mere fact that the grantor in a settlement was first tenant 
 
 successive • 
 
 tenants in tail, ill tail under a prior settlement with remainder to the grantee in 
 tail will not support the 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). 
 
 ]\lust be fair 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. 
 
 Tarletonv. In Tarletofh Y. Liddcll (/'), under a marriage settlement, 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 tlie estate was conveyed to J. 0. 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, v/itli remainders over to the 
 other children of J. T., tu whom the ultimate remainder in fee was 
 limited. 
 
 (.>:) Doc V. Jtolfi', 8 A. & E. G50. {z) Doe v. liolfe, 8 A. & E. 650. 
 
 (y) Tarleton v. Lid Jell, 17 Q. B. 3'JO ; (a) f'ormicJc v. Trapaml, Dow, 800. 
 
 Doc V. Rolfc, 8 A. & E. G5U ; Siig. V. & [h) 17 Q. B. 300, S. C. 4 Uc G. & Sm. 
 
 P. 14th ed. 71G. 538. 
 
 LiddeU.
 
 IN SETTLEMENTS, 265 
 
 By this deed, it will be seen, J. T., the fatlier, gave \\\> liis 
 valuable life interest in possession, and oidy took back remote 
 limitations to his other children, with remainder to himself in fee. 
 It was therefore, 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 licM 
 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 inducement to the son to execute the 
 resettlement was taken away, and therefore, tliere l.iciiig no other 
 consideration, the father's fraud was held to vitiate the whole 
 transaction, and the son's 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). 
 
 In Baker v. Bradley (d) it was said by Lord Justice Turner : Baler v. 
 
 . 11-11 1 Bradley. 
 
 "Transactions between parent and child may proceed upon 
 arrangements between them for the settlement of property or of 
 their rights in property in which they are interested. In such 
 cases this Court regards the transactions with favour. It does not 
 minutely weigh the considerations on one side or on the other. 
 Even ignorance of rights, if equal on both sides, may not avail to 
 impeach the transaction." But, if the exchange of interests 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 (c) a son, tenant in tail in remainder, joined with Fane v. Fane. 
 his father, the tenant for life, in resettling the family estates. 
 The son was mainly induced to do so by an innocent misrepresen- 
 tation of his father that a charge of 15000 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 supposed power to 
 charge by the father was the chief consideration for the execution 
 of the deed by the son. It was held by Hall, V.C, that the 
 
 (c) Tarhton v. Liddell, 17 Q. V,. 30f», (d) 7 Do (;. :\r. c^ f!. G20. 
 
 4 De G. & Sm. 538 ; Sug. V. & P. (e) L. 11. 2u Eq. G93. 
 
 14th ed. 719.
 
 266 
 
 VALUABLE CONSIDERATION : 
 
 son was 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 resettlement obtained very sub- 
 stantial benefits ; and gave up his right to charge portions, which 
 was not, under the circumstances, a very substantial thing. In 
 tlie resettlement there was no provision for the son at all, and 
 some 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 father and son, which was a very 
 substantial benefit, for it was a power exercisable at once. 
 
 Tonsidcra- jf- jg r^ wclI-scttled princirilc that in questions on the statutes of 
 
 tions not r i i 
 
 mentioned in Elizabeth Considerations not mentioned in a deed may be resorted 
 
 <l QCGcl lUHV 
 
 support it if to, both at law (/) and in equity (g), to support it, provided they 
 tTnt'witllTit ^^^ ^°^ inconsistent with what appears on the face of the deed (/<). 
 
 Nominal 
 consideration. 
 
 " Divcrs'good 
 
 ronsidera- 
 
 lioiis." 
 
 Parol evidence of such considerations dehors the deed may be 
 adduced to establish it (?) ; 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 (Z-). 
 
 The expression of a nominal consideration, and no general 
 words, is not inconsistent wdth the fact that money or money's 
 worth was the real consideration (/); but it is usual in post-nuptial 
 settlements and deeds of gift generally to insert the words " and 
 for divers good considerations " (m). This is not only for the 
 purpose of letting in the averment of considerations not appearing 
 
 (/) Gale V. iniUamson, 8 M. & AV. 
 405, 409-411. 
 
 (g) Barnardiston v. Simpson, post, 
 Appendix No. VII ; Ford v. Stuart, 15 
 Beav. 493; Fott v. Todhunter, 2 Coll. 
 76, 84; Scott v. Scott, 18 Jiir. 755. 
 
 (7i) Lord Plunket, in Ni.ron v. Hamilton, 
 2 Dr. & ^Val. 385; see Cliapmanw Emery, 
 1 Cowp. 278 ; Ferrars v. Cherry, 2 Vern. 
 384 ; Senhonse v. Earle, Amb. 285 ; 
 f'ohnan v. Sarrell, 1 Vcs. .Jun. 50, 51 ; 
 UlfrliiUVH f'axc, L. R. 1 Eq. 231 ; Jhe 
 V. Shcrhcl;, Fox & Sm. (Ir. Rep.) 90; 
 Lanijlry v. Jirovn, 2 Atk. 195, 2(l2, 2 
 Phil. Evid. 8th ed. 701 : notwithstand- 
 ing PeacocJ: v. Monl; 1 Vcs. 128 ; 
 
 Clarl-son v. ffanway, 2 P. W. 204; and 
 Watt V. Grovcy 2 Sch. & Lef. 501. 
 
 (i) Hex V. Inhabitants of Sca?nmo7i- 
 den, 3 T. R. 474 ; Her v. Jnhalitants of 
 J.aindon, 8 T. R. 379, 382 ; Fdmer v. 
 dott, 4 ]}ro. P. C. by Toml. 230, Tayl. 
 Evid. 8th cd. 9t)9 ; Jlarman v. liichard't, 
 10 Hare, 81 ; lUiyxpoole v. Collins, L. R. 
 <\ Ch. 228 ; Mullins v. Ouilfoylc, L. R. 2 
 Ir. Ch. 95. 
 
 (/.•) Graham v. O'Kcefc, 10 Ir. Ch, 
 Rep. 1, 14; Levy \. Creighton, 22 "W. R. 
 005; ante, p. 219. 
 
 i7) Leifchild's Case, L. R. 1 i:.]. 2;! I: 
 Conlticas v. Swan, 19 W. li. 485. 
 
 (»)) Dav. Prec. 4lh ed. vol. 1, 04.
 
 HOW PROVED. 2()7 
 
 in the deed (//), and deterrinc; purchasers and mortgagees from 
 dealmg with the property on the assumption ni th(; settlement 
 lieing voUintary; l)ut also because, ulthougli such words do net 
 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 un tlic deed the onus of proving 
 that there was no valuable consideration would be on those dis- 
 puting the deed (t»). "Where a settlement after marriage was 
 expressed to be in consideration of " os. 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 fuunded on 
 any and what valuable consideration Q>). 
 
 Although a conveyance for fictitious consideration may not Natural love, 
 afterwards be set up as a gift {q), a grant to a relation, though gisi'ct with 
 expressed to be made in consideration of natural love and affection, g^ng^j^fation 
 may be averred and shewn to have been made in consideration of 
 the marriage of the grantee (r), or other valuable consideration (s) 
 as payment of debts (t), such consideration not being inconsistent 
 with that alleged. It is not in contradiction of the expressed con- 
 sideration to prove a larger consideration than that mentioned (u); Proof ofiar-er 
 
 ,, „ consideration, 
 though such words as " and for divers other good causes, (xc, 
 
 were not used (r). It may be shewn that the consideration stated 
 
 to have been paid in money was paid, not in money, but in 
 
 goods (^v). 
 
 A bond given to his father by a son, binding him in a [tcnal Bond hup- 
 
 , . „ , , ., , . 1 TP 1 , • ported bv dpcd 
 
 sum of £500 to support his father s wife during her lite, and ins not referring 
 other children until they respectively arrived at the age of'°''- 
 
 (») Hex V. Inhabitants of Scammon- ()•) Tanner v. Bijne, 1 Sim. 16G. 
 
 rfen, 3 T. K. 474; Hex v. Inhuhitants of (.s) Doe v. Sherlocl; Fox & Sm. (Ir.) 
 
 Laindon, 8 T. K. ^79-382 ; Bishop of 79, 90 ; Harman v. Richards, 10 Hare, 
 
 i;j-e<er V. tr'!<%, 5 Man. & R. 4.57, 491-2. 81; contra, Ball v. Burnford, Prec. 
 
 (o) Per Lord Hatherley (then Sir Cli. 113; Coidtiras v. /Siran, 10 Vs\ U. 
 
 W. P. Wood, V.C.) in Kelson v. Kelson, 485. 
 
 10 Hare, 38.5, 388 ; ante, p. 84. (/) Attwell v. Harris, 2 FiO. Ucp. 01, 
 
 {p) Gidhj V. Bishop of Kreter, 2 Moo. 2 Ko.. Ab. 790. 
 
 & P. 2(36, 5 Bing. 42 ; and see Kelson v. (u) ('llfard v. TurreV, 1 Y. & •'. < li. 
 
 Kelson, 10 Hare, 385, 388. 138, S. C. 9 Jur. 033. 
 
 (q) Bridgman v. drcen, 2 Ves. G27-8, (>■) Barnardiston v. ."^impson, post, 
 
 2 Com. Dig. 640; Filmer v. Gott, 4 P.ro. Appendix No. VII. 
 
 P. C. 230; Hughes wSeanor, 18 W. K. iic) Smith v. Batiums, 20 L. .T. Ex. 
 
 108, 1122. 232.
 
 268 VALUABLE CONSIDERATION : 
 
 eij,'liteeii, has been held a sufficient consideration to support against 
 creditors an assignment by the father to liim of his dwelling- 
 liouse, business, stock-in-trade, and household furniture, by a deed 
 in which there was no reference to the bond, and which was ex- 
 pressed to be in consideration of natural love and affection only (x). 
 
 Consideration The question whether the consideration is valuable, or not, is to 
 at time settle- ^'^ decided by the circumstances at the time the deed which is 
 "xc"\'^J impeached was executed (;/);and not by the light of subsequent 
 
 events. If, then, the consideration be something future or con- 
 tingent, and, after the execution of the deed, it fails, the deed is 
 not thereby avoided (:). 
 
 r,rfjet V. It has been held in Ireland, in Pajd v. Paget (a), decided under 
 
 '^^^ ■ 10 Car. 1, sess. 2, c. 3 (analogous to 27 Eliz. c. 4), that the failure 
 
 for value cTn- ^^ niattcr ex post facto of what was at the date of a conveyance of 
 
 not afterwards i^nd an adeiiuatc valuable consideration will not operate retrospec- 
 
 become _ ^ '- '■ 
 
 Toluntar}'. tively, 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-Clianccllor : " I apprehend that the 
 imputed fraud under the statute must be presumed to have 
 existed, 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 {h). 
 
 Court looks at In considering whether or not a deed is voluntary, the Court 
 cumstance's. ^^'^^'^ ^^^'^ ^^^*^ consideration all the circumstances under Avhich it 
 was executed and tlie 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 any evidence 
 
 (x) Gale V. William807i, 8 M. & W. (a) 9 L. U. Ir. 128. 
 
 405. (h) Clarke v. Willott, L. I!. 7 Ex. 317 ; 
 
 (//) JlitcJicuck \ . GiddiiigSji Prec. 135; post, pp. 314 et 6C(i. 
 
 Hanks v. I'ullinfj, G E. & JJ. ()50 ; Nairn (c) Thompson v. Webster, 4 Drew. 
 
 V. Protrse, Ves. nt p. 7.58; Mortimer \. 032, S. ('. 4 I)e G. & .T. GOO; Ford v, 
 
 ('uiyjtcr, 1 I$ro. C. C. loG, Fry, Sp. I'f. 2nd iStnart, l,j JJcav, 493; JInrman v. Jlirh- 
 
 cd. 190; Maclcie v. Jhrbcrtson, 9 App. r/jv/'?, 10 Ilarc, 81 ; Cornishx. f'lar!.;Jj.}{. 
 
 Cas. 337, 341, .343. 14 Eq. 184; In re Johnson, 20 Cb. 1). 
 
 (z) Co. Litt. 204 a. 389, S.C. 51 L. J. (N.S.) Cli. 503, et infra. 
 
 I
 
 WHEN PROVED. 209 
 
 which tends to throw light on the reasons and considerations for 
 the settlement. Although there may lie no proof, either by 
 extrinsic evidence or by anything appearing on the face of the 
 deeds, of any stipulations or agreement whicli there was sufficient 
 consideration to support, yet several transactions may be viewed 
 together, and the ])arties to them must be considered to have 
 stipulated according to the riglits which they had ; and any con- 
 sideration which is found to exist will either support the whole 
 transaction or none at all (//). 
 
 In Harrnan v. Richards (d), under the will of her father, IT. 11. jfar 
 
 man v. 
 
 was entitled to the income during her life to her separate use, "*^ '"'""•_ 
 
 ... I, . p t . . 1 Tlirce JiHtinct 
 
 without power of anticipation, of a portion or his residuary estate, dccis trcutc.l 
 remainder to her children ; J. 1!., junior, was the only child. In S'rJisucti'.m'""' 
 1812, Hi2f"s, the surviving trustee of the will, sold out part of tlie "'"I h"I'I"^'|- 
 
 > o'^ ' " ^ iiig each other. 
 
 fund, and lent it, with other moneys of his own, to J. 11., junior, 
 on the security of the joint and several promissory note of J. 11., 
 the father, H. II,, and J. E., the son, and also on the security of 
 the deposit of title deeds of property belonging to J. E., the father. 
 In 1840 the three deeds were executed (each bearing date the 20th 
 of January), which were taken to have formed one transaction. 
 By the first, H. li., the mother, released and assigned to Higgs, 
 the trustee, her life estate 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. K., the son, assigned his reversionary 
 interest under the same will in consideration 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 
 impeached by the bill) was in form a voluntary conveyance^ 
 whereby J. Pi., 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. B. (b.is wife) for life, remainder 
 to himself for life, remainder to the wife of J. B., the son, for life, 
 remainder to her children by J. B. The bill was filed by creditors 
 under a joint and several covenant (in a mortgage deed), entered 
 into by J. B., the father, and J. B., the son. 
 
 Sir G. J. Turner, V.C., said tlie deed, taken alone, was volun- 
 
 (J) Harrnan v. lllchard^. 10 llarc, 81, 88; Conmh v. Clarl; L. R. M F.i. 181.
 
 270 CONSIDER ATIOX 
 
 tary, l>ut that to decide the question it must be considered 
 ^Yhether that deed \va.s to he taken by itself, or in connection 
 with the purcliases from the son and the mother; that the 
 question ^\■hethe^ several deeds are to be taken as part of the 
 same transaction must depend upon all the surrounding circum- 
 stances 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 tlie settlement and 
 purchases were connected together, and were, in fact, parts of 
 the same transaction. Several circumstances, lie said, lead to 
 tliis conclusion — the delivery up of the deposited deeds, and the 
 conveyance (of the legal estate in anotlier property) from tlie son 
 to the father, tending to shew that the property was about to be 
 dealt with, and the corresponding variations in the money to be 
 paid for the life interest, and in tlie property to be settled — 
 directly evidenced the connection of the transactions ; and his 
 Honour thought there was sufficient consideration for the settle- 
 ment, as it could not have been made without the concurrence of 
 H. R.,the mother; so that although, her life estate being fettered 
 by a restriction on alienation, she could not pass or affect her 
 future interest, yet she was competent 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, altliough there was no evidence of any sucli agreement, the 
 parties must be considered to have stipulated according to the 
 riglits which they had. 
 
 Familv settle- A settlement will sometimes be upheld, even against creditors 
 
 u^aul value ^^ purchasers, as a family arrangement ; but to do so will require 
 
 (as in other cases) that there shall be no doubt as to the honesty 
 
 of the arrangement (r), and also that there shall be some valuable 
 
 consideration (f). 
 
 (e) Greenwood v. Oreemcood, 2 D. J. 2G9 ; Tennent v. Tennents, L. R. 2 H. L. 
 & S. 28 Penhall v. Elicin, 1 Sm. & Giff. Sc. 6 ; Miller v. Harrison, 5 Ir. Eq. 324. 
 (/) See Tounend v. Taker, L. K. 1 Cli. 446; post, pp. 272, 275, 276. 
 
 \
 
 IX FAMILY AllRANGEMEXTR. 271 
 
 This is it wliicli constitutes iho (.lifforoiico Ijctwocn deeds or 
 aiTangeiiicnts which a Court will ujjliold or enforce as valid 
 and binding only between tlio parties (//), and those which arc 
 valid against the whole world. 
 
 In ConilsJi V. ('1(r/-k (J/) a dol)lor gave each of his three sons f'ornUh\. 
 a thresliing-niachin(>, and they, by agreements of even date, each 
 agreed to pay him, in consideration of that gift, an annuity of £20. 
 On November 7 following he gave a sum of £:300 to his six 
 daughters, and, by a deed dated Xovember 12, he assigned a 
 debt of £300 secured l)y mortgage to trustees on trust to divide 
 the same among his six daughters and the children of a deceased 
 daugliter. These dispositions comprised liis entire property. 
 On an action by a creditor nnder 1-j Eliz. c. 5, it was held tliat 
 the whole was void against creditors, but only against them. 
 The various gifts formed part of one whole connected plan, and 
 that was a scheme, probably at the instance of the donees, to 
 divide the property of the debtor eciuitably among themselves, 
 but without regard to the claims of creditors. 
 
 In In re Johnson (/) J., in consideration of love and affeolion in re Juhnson. 
 and of a covenant by her two daughters, granted a farm and 
 premises in trust for them in equal shares. They covenanted to 
 pay all just debts incurred by her np to the date of the deed of 
 grant in connection with the working and management of the 
 farm. This deed was a conveyance of all d.'s property. An 
 action was brought by a creditor to set aside this deed under 
 13 Eliz. c. 5. His debt was not incurred by J., but by her 
 predecessor on the farm, with whom she had entered into a like 
 covenant ; but she had given a promissory note for the amount 
 of the debt. One daughter was an infant at the date of the 
 deed; the other daughter had carried on tlie farm since that 
 date. Fry, J., in the course of his judgment, pointed out that 
 the consideration was in part meritorious and in part valuable. 
 His Lordship then reviewed the circumstances of the family at 
 the time of the execution of the deed, and held that, indepen- 
 dently of the result of the deed, they led him to the conclusioQ 
 
 (g) Smith V. Mogforcl, 21 W. E. 17->. (^'^ 20 f'!i. D. 380, S. f". 51 L. J. (N.S.) 
 
 (/() L. R. 14Eq.'l84. Cli. bO?,.
 
 272 
 
 CONSIDERATION 
 
 tlmt the intention of the parties was to make a perfectly honest 
 family arrangement, under which the daughters were to under- 
 take the burden of paying their mother's debts, and, in considera- 
 tion of that, were to take immediately that farm which in all 
 probability they would otherwise have received by will upon 
 their mother's death. His Lordship then pointed out the favour 
 shewn by the Courts as to the question of consideration in family 
 settlements. " It appears plain, that though valuable and good 
 consideration was given by tlie 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 
 cannot 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 " (A). 
 
 ConsiJeralion 
 Bufticiont for 
 specific per- 
 formance 
 usually ade- 
 fjuate to up- 
 hold deed 
 under these 
 statutes. 
 
 In general a consideration sufficient to induce the Court to 
 decree specific performance of a contract must be such a con- 
 sideration as would prevent a deed founded on it from being 
 void under the statutes of Elizabeth as voluntary (/). 
 
 This is not cdvays a safe guide, however, in the question of 
 ^'alue or not as against creditors ()r purchasers {m), for deeds 
 wliicli might, if still only resting in fieri, have been enforced 
 against some of the parties to them as a fair family arrange- 
 ment (n), may sometimes Ite void against creditors. " Courts of 
 equity," said Sir John Stuart, V.C, in a case in which he decreed 
 a settlement void against creditors (o), "have gone very far, and 
 on a very useful and rational principle, to maintain family settle- 
 ments. A deed made between the members of a family, founded 
 
 (/.•) And sec Ex imrte E]}rc, 41 L. T. 
 (N.S.)922. 
 
 (?) See post, pt. V. ch. i. 
 
 (wj) It seems to have been the law at 
 one time that natural affection was 
 Bufficient consideration to induce the 
 Court to enforce specific performance : 
 Wiseman v. lioper, 1 Ilep. Ch. 84 [158]; 
 
 nUs V. Kimmn, LI. & G. (t. S.) 3.33; 
 but see now Jeffcrys v. Jejf'crys, Cr. & Ph. 
 138; Dillon v. CojWn, 4 My. & Cr. 
 C47-C71. 
 
 (n) iiinith v. Mogford, 21 W. R. 472. 
 
 (o) PenhaU v. Elwin, 1 Sm. & G. 258, 
 2G&.
 
 IN FAMILY ARRANGEMENTS. 273 
 
 (111 110 better consideration than tlu; foniproniise of a duiilitfiil ComprontiBo. 
 riglit (^>), may lie njiludil on this jiriuciiilc. And in this ease, if 
 there had been no circumstances of sus})icion — no contravention 
 of higher rights — the claim of a parent who had made large 
 pecuniary advances in favour of a child, advances which had, 
 perhaps, at first formed the obligation of a debt, this Court might 
 even after lapse of time had terminated all obligation lus a debt 
 have considered the assertion or the existence of such a claim, 
 however doubtful, as a sufficient consideration to support a deed 
 purporting, in the way of family arrangement, to make a ]iro- 
 vision founded on such a consideration. But where the rights of 
 existing creditors are directly interfered with by such an arrange- 
 ment, and property to which those creditors might resort is 
 removed from their reach, a more severe rule must be a]ii)lic'd. 
 And if there are such circumstances of suspicion as occur here 
 from the embarrassed circumstances of the grantor, the pressure 
 of creditors, and the appearance of a voluntary arrangement 
 originating in the necessity and fear induced by this jjressure, 
 the case is carried beyond the principle which sanctions and 
 supports a deed as a mere family arrangement, and not on actual 
 valuable consideration." 
 
 So also in Stodiey v. StocUey (q), Lord Eldon said : " In family Stochley v. 
 arrangements the Court has administered an equity which is not 
 applied to agreements generally. One very strong instance is 
 the case of Pullcn v. Ready (r), where legacies were given, to be 
 forfeited by marriage without consent ; a family arrangement 
 took place giving that legatee the benefit of the legacy. That 
 arrangement, it was suggested, was under a mistake of law — 
 that the condition was only in terrorem (which, under the cir- 
 cumstances, it was not), and it was contended the parties were 
 not bound ; but Lord Hardwickc said, • There was the will before 
 them, and if they chose to construe it, taking upon themselves 
 the knowledge of the law, he would hold them bound.' That 
 case, with the passage in Cory v. Cory (s), which is certainly 
 
 (;?) It will be observed, however, tliat (7) 1 V. & B. 30. 
 
 in this case there was not even any doubt- (r) 2 Atk. 587. 
 
 fnl right: see. Smith y. Mo^ ford, il\\ .V^. (s) 1 Ves. 19. This docs not appear 
 
 47-2 ; MUIer v. Harrixon, .5 Ir. Eq. 324 ; quite a correct statement of the cane, 
 Mason v. Mason, Times Rep. (188G) 2G6. for the question was, whetlier it was 
 
 T
 
 274 CONSIDERATION 
 
 very strong, that an agreement, to settle disputes in a family, 
 and a reasonable agreement should be enforced against a party 
 who was drunk at the time, and StapUton v. Stapilton (t), wliich, 
 with all the able reasoning in it, is an extremely strong case, lead 
 me to the opinion that in these family arrangements the Court 
 does not quite go the length of denying relief upon tlie principle 
 that prevails between strangers " (u). 
 
 mapiiton V. Tlus follows wliat Lord Hardwicke said in the leading case of 
 
 api on. Sfajnlton v. Stapilton (v), that, considering what would have been 
 the consequence of letting the agreement in that case fall to the 
 ground, "a Court of equity icill he glad to lay hold of any just 
 ground to carry it into eoxcution and to establish the peace of a 
 family " (u-) ; but this reasoning, though very just and rational 
 when applied for the purpose of preventmg any of the parties to 
 such an agreement from disturbing or refusing to execute, would 
 become neither just nor reasonable against the bona fide claims of 
 creditors or purchasers (x). 
 
 Voiil ngainst The converse position, of the same kind of contract being void 
 
 creditors 
 
 ' when opposed to creditors, is illustrated by a case (y) decided 
 twenty years after, in which G. P., having two sons, John and 
 Giles, by his will gave a leasehold estate to Giles, the younger 
 son (charged with legacies and an annuity), and devised aU the 
 rest, residue, and remainder of his real and personal estates, 
 goods, and chattels to trustees in trust for the same son till he 
 attained twenty-one, and then the trust to cease. Giles attained 
 twenty-one in the lifetime of the father, the testator, soon after 
 whose death the eldest son claimed the freehold estate as heir- 
 at-law to his father, and insisted that the will was void, and 
 threatened to commence a suit at law unless Giles would convey 
 the estate to him ; to avoid this, at the recommendation of his 
 mother, Giles released and conveyed his right to his brother 
 
 sufficient to set aside an agreement that (v) 1 Atk. 11. 
 
 one of the parties was drunk. See Cann (w) See Stephens v. Trueman, 1 Ves. 
 
 V. Cann, 1 P. Wms. 727. 74; Wycherley v. Wycherley, 2 Eden, 
 
 (0 1 Atk. 2; Wh. & Tu. L. C. Gth 177-8. 
 
 ed. vol. 2, 920 et seq. (./•) Mathews v. Feaver, 1 Cox, 280. 
 
 (w) See also Lord St. Leonards' judg- (ij) Peat v. roicell, 1 Amb. 387. 
 mcnt in Westhy v. Westby, 2 D. & War, 
 502, 525.
 
 IN FAMILY ARRANGEMENTS. 275 
 
 Jolm, who covenanted to 'pay half the annuit// cliartjed on CJile.s's 
 leasehold estate. At the time of executing' the release CJiles was 
 indehted l>y IxMid, and nine years after became l)ankruiit. Lnrd 
 Keeper Henley decided that the younger brother was entitled 
 under the will to the fee simple of the freehold estate ; and tliat, 
 although there was no fraud, the release was void as against the 
 creditors of Giles, " being a voluntary conveyance." 
 
 This deed was founded on a mistake of law common to all the ilmnu'li 
 parties to it, and was therefore such a contract as, according to ijeiw^-n ti.o 
 the authorities (z), the Court would have enfoi-ced Ijctween the P'*'"'"^'*- 
 parties. 
 
 The same sort of distinction was drawn by Lord Hardwicke as Aprfiemcnt 
 to cases in which limitations to collaterals in articles of agreement []|",j 'f^J^Wy 
 or marriage will be enforced — that an agreement sufficient to 
 bind the several branches of a family is not necessarily adequate 
 to bind creditors (a). In Foi^d v. Stuart (&), indeed. Lord 
 Eomilly, M.E., said that the Court of Chancery will not compel a 
 person to make a settlement if he could on the next day have 
 defeated it by selling the property to a purchaser for valuable 
 consideration ; but this argument would apply equally to the 
 interference of the Court in upholding voluntary settlements 
 actually completed, which are no less liable to be defeated by a 
 subsequent sale for value. 
 
 This distinction introduces an element of some difficulty as to 
 the statutes of Elizabeth with regard to family arrangements ; 
 it shews that cases in which there was no question on tliose 
 statutes cannot always be relied on as laying down rules as 
 to the consideration which will l)e good against creditors or 
 purchasers. 
 
 It will, therefore, be necessary to consider those decisions only 
 in which their rights were actually opposed by a transaction in 
 the nature of a family arrangement. Those cases in which mere 
 
 (,~) Pidlen V. Beady, 2 Atk. 587; (a) In Goring \. Xcvsh, 3 Atk. 188, 
 
 Clifton V. Cockhtrn, 3 My. & K. 76 ; and cases there cited in note (.Sanders' 
 
 Naylor v. Winch, 1 Sim. & S. 564; ed.). 
 
 Great Weste7'n Raibray Co. v. Cripps, 5 (6) 15 Boav. 504, 
 Hare, 91 ; liogers v. Ingham, 3 Ch. I). 351, 
 
 T -2
 
 276 
 
 CONSIDERATION 
 
 Orilinan- niles 
 inapplicable 
 to family 
 arrangements. 
 
 Obligation. 
 
 Compromise. 
 
 Exchange. 
 
 Property got 
 by the 
 settlement. 
 
 Williams V. 
 Williams. 
 
 o-enerosity, the intention of carrying ont the provisions of an 
 invalid will, or the laudable intention of deciding family disputes 
 or saving the family honour, have been held sufficient considera- 
 tion to induce the Court to decree specific performance, or to 
 uphold the settlement between the parties to it, are not cases 
 which prove that the settlement, even although strengthened by 
 time and acquiescence, would have been allowed to defeat existing 
 creditors or subsequent purchasers (c). 
 
 But, although the same rules are not applied where the settle- 
 ment is disputed by creditors or purchasers as between the parties 
 themselves, it will be found that, even as against creditors or 
 purchasers, family arrangements are exempt from the ordinary 
 rules which affect other deeds, the consideration being composed 
 partly of natural love and affection and partly of value. The 
 consideration will not be nicely balanced ; for by what scale of 
 money consideration are these objects to be estimated ? {d) 
 
 There must be either some legal obligation in discharge of 
 which the settlement was made {c) ; or a fair compromise of 
 rights really doubtful (/) ; though the claim ultimately appears 
 to be wholly unfounded {g) ; or a bona fide interchange of 
 interests (A) ; or it must be shewn that settling the property 
 was the only way in which that property could have been 
 obtained at all {i). 
 
 The case of Williams v. Williams (k), though not a case of 
 creditors or purchasers, shews that any bona fide interchange of 
 
 (c) Siapilion v. .Stapiltcm, 1 Atk. 2, 
 and S. C. 2 Wh. & Tu. L. C. 6th ed. 
 vol. 2, 920; and Lord Henley's judg- 
 ment in Wychcrle;/ v. Wycherley, 2 Eden, 
 177; Smith v. Mooford,2\ W. R. 472; 
 ante pp. 246, 247, 270, post p. 280. 
 
 {d) Persse v. Fersne, 7 CI. & F. 279, 
 318 ; Baker v. Bradley, 7 De G- M. & G, 
 620 ; Mullinx v. Guilfoyle, L. R. 2 Ir. 
 109 ; Jn re Johnson, 20 Ch. D. 397, S. C. 
 51 L. J. (N.S.) Ch. 503 ; ante, pp. 270etseq. 
 
 {e) Ante, pp. 244, 249. 
 
 (/) Neale v. Neale, 1 Keen, 672 ; see 
 Gordon v. Gordon, 3 Sw. 400-463; 
 Htor.kley v. .StocUey, 1 V. & B. 23-30 ; 
 iJamafiew While, 1 Sw. 137, 151 ; Lury'n 
 
 Case, 4 Dc G. M. & G. 356; Cook v. 
 Wright, 1 B. & S. 559 ; MiUer v. Harri- 
 son, 5 Ir, Eq. 324 ; Mason v. Mason, 
 Times Rep. (1886) 266. 
 
 (r/) Callisher v. Bischoffsheim, L. R. 
 5 Q, B. 449 ; Ockford v. Barelli, 20 
 W. R. 116; but see Ex i)arte Banner, 
 17 Ch. D. 480. 
 
 (/<) Williams v. Williams, L. R. 2 Ch. 
 294, et infra ; Persse v. Persse, 7 CI. & F. 
 279 ; Jlewison v. Negus, 16 Beav. 594, 
 post, p. 288; Bennett v. Bernard, 10 Ir. 
 Eq. Rep. 584 ; Lovell v. Wallis (No. 2), 
 60 L. T. (N.S.) 681 ; ante, p. 264. 
 
 (i) Pott V. Todhunter, 2 Coll. 76, 
 
 \k) L, R. 2 Ch. 294, 
 
 \
 
 IN FAMILY ARRANGEMENTS. 277 
 
 rights will be sufficient to uphold a family settlement as being on Exchange of 
 valuable consideration. In tliat case A. died in 18:31, possessed of ^"'*''''-''"*'- 
 real estates, of socage, gavelkind, and borough English tenure, and 
 also leaseholds, stock-in-trade, and other personal property, and 
 leaving a wife and two sons. He left an invalid will, dividing all 
 his property equally between his two sons, subject to certain pro- 
 visions for his widow for her life. At an interview between the 
 brothers shortly after probate of the will had been refused, the 
 elder brother declared that the invalidity of the will should make 
 no difference, and that the property should be " not mine or thine, 
 but ours." No written agreement was made, but for twenty years 
 after the death of A. the two brothers carried on the partnership 
 together, and dealt with the whole property, real and personal, as 
 if it belonged to them equally, and the widow never insisted on 
 her rights in her husband's property (/). In 1851 the partnership 
 was dissolved, and the younger brother having died, his representa- 
 tive filed a bill for the equal division of the property. The Vice- 
 Chancellor held (m) that a family arrangement which the Court 
 could uphold had been proved. On appeal. Lord Chelmsford said, 
 that there being here no doubtful right to be compromised, no dis- 
 pute between the brothers which was to be set at rest, no honour 
 of the family involved, it differed from those cases of family 
 arrangement formerly the subject of decision, and that the elder 
 brother could not be bound by the arrangement unless some con- 
 sideration could be shewn, but that there was quite sufficient con- 
 sideration to prevent its being a mere voluntary agreement, and 
 the Court will not be disposed to scan with much nicety the 
 amount of the consideration. The borough English property, 
 which belonged to the younger brother, was of some, though of 
 trifling, value, and was brought by him into the common stock, 
 and in a case of this kind some consideration might perhaps be 
 found in his leaving his share of the stock-in-trade in the business, 
 and continuing to carry it on, instead of breaking up the concern. 
 But there could be no doubt the widow was a party to the whole 
 arrangement, and the consideration moving from her must be 
 taken into account ; on the understanding that there would be 
 but one purse between the two sons, and that they would continue 
 
 (/) Jioe V. Mdton, 2 Wils. 356. (m) 2 Dr. & Sm. 378.
 
 L'/ 
 
 CONSIDERATION 
 
 Putt V. Tod. 
 hunter. 
 
 Property 
 settled only 
 ubtained on 
 that con- 
 ditioa. 
 
 the business and maintain her out of it, slie allowed her interests 
 in the real and personal estate to be considered as part of the joint 
 property, which her sons were together using and enjoying. If a 
 valuable consideration was required to make the family arrange- 
 ment binding, it was sufficiently provided by the widow agreeing 
 to become a party to it, and relinquishing her rights for the pur- 
 pose of carrying it out. 
 
 Fott V. Todhuntcr (n) is an instance of a case where settling the 
 property was the only way in which that property could have been 
 obtained at all. There S., a person wlio was in loco parentis to 
 A. G. H., a married woman, devised to her a rent-charge for her 
 life, and also bequeathed certain personal property to her for 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 
 personalty, 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 w^ife 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 trouble, and by tact and good management, and 
 obtaining the co-operation of the persons interested in the estate, 
 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 
 property he should have power to make such settlement on the 
 lady and her family as he should think tit. "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 sctllement should ever have 
 
 (") 2 Cull. 76.
 
 IN FAMILY ARRANGEMENTS. 27^) 
 
 been called in question by the husband's creditors, for the nmney 
 settled was never liable to their claims, the husband never havin;,' 
 had it actually in his power. It was first iuvcstud 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 (^j). 
 
 In Persse v. Persse (q) R. P., a man of advanced age, being heir JWnxr v. 
 presumptive of R. P. P. (then supposed to be a lunatic), and being 
 
 T 1 • 1 c • ''"'^' value, 
 
 under apprehension that unfair means might be resorted to in the part lov.; miJ 
 then state of mind of R. 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 R. P. P., and 
 carry on such other necessary suits and law proceedings at his own 
 expense, but in the name of R. P. His father, by deed, in con- 
 sideration of this agreement and of natural love and affection, 
 covenanted to convey all the estates which would descend to him 
 on the death of R. P. P. to the use of himself for life, remainder 
 for the benefit of 1). P. and his heirs male by his then wife. 
 
 The commission was accordingly issued, R. P. P. was declared 
 lunatic, and out of his estate D. P. was reimbursed for his expenses. 
 R. P. was then sixty-three years of age, the lunatic was forty, 
 and D. P. younger. On the death of the lunatic, R. P., the father, 
 entered into possession of the estate, and conveyed it to his second 
 son, R. H. P., for valuable consideration. Lord Cottenham and 
 the House of Lords held that as far as consideration was concerned 
 there was sufficient to support the deed. There was some con- 
 sideration proceeding from the son. His prosecuting the suit and 
 the father's inability to do so, from whatever cause proceeding, 
 shew that the covenant was not merely voluntary, and the situa- 
 tion 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 
 
 (o) Before 1 &2 Vict. c. 110. disapproved by Lord Ilardwicko, 1 Ves. 
 
 (p) Fletcher v Sedley, 2 Vern. 490; VM); ante, p. 20. 
 (7) 7 CI. & F. •-'7'.1,S]7.
 
 280 CONSIDERATION IN FAMILY ARRANGEMENTS. 
 
 and of the supposed lunatic, the i)robability 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 measures 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 afi'ection, and is of such a nature 
 that the adequacy of it cannot be estimated ; and in this case the 
 consideration was partly the services of the son in securing 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 settlement it was likely that the estate would 
 descend. 
 
 Natural love and affection formed a small part only of the con- 
 sideration, and therefore it was valid against the subsequent 
 purchaser (?•). 
 
 No question of It must be borne in mind, in regard to a voluntary deed, that, 
 
 consiileration , j-iini- -ii 
 
 till jETant.-e is uuicss and until that deed is communicated to the party to be 
 deed'' "'^ " benefited by it, there can be no question of consideration. For 
 there can be no consideration 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 doing gives value to the donor, being the value tlie 
 donor expected him to give, he has in fact accepted the voluntary 
 deed as a consideration for the action he has taken on tlie faith of 
 it. But so long as he has no knowledge of that deed it is impos- 
 sible he can give value in that way (s). 
 
 (r) Cornish v. ClarJ:, L. R. 14 Eq. (x) In re Barlcr'a Estate, 44 L. J. 
 
 184; In re Johnson, 20 Cli. D. 389, (N.S.) f'h-, pcrJcsscI, M.H., 487 ; Crack- 
 
 S. C. 51 L. .1. (N.S.) Ch. 503, ante, pp. null v. Janson, II fh. I). 1 ; post, pp. 322 
 
 24rt, 247, 27<i et soq. ; where fraud, aliter ; et seq. 
 Filmer v. Gott, 4 Bro. I'. C. 230.
 
 CHAPTKU 11. 
 
 CONSIDERATION BETWEEN IIUSr.AND AND WIKE. 
 
 T.IE unity which at law was formerly presumed to exist in the Ilimband an.! 
 case of husband and wife did not prevent a valualjle consideration tT)'ci,ntract"'^ 
 passing between them in equity, independently of any contracts t«Kcther. 
 entered into before 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 strangers, as if she were a feme 
 sole (?/) ; and further in reference to any matter as to which slie 
 was placed in the position of a feme sole she was in a position 
 to contract with her husband {v). 
 
 It seems doubtful wliether the common law doctrine of the EfTfct of 
 unity of husband and wife (w) has been any further infringed Women'H 
 upon by the Married Women's Property Act, 1882, than by 5^';PY882. 
 excluding from its scope the cases 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 sc (y). It woidd 
 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 respect, and to 
 the extent, of her separate property, and to sue and be sued, is by 
 
 (t) CracJierode v. Hallam, post, Appen- 62, S. C. 2 D. & J. 249 ; Nicholl v. 
 
 dix No. IX., 1 Bl. Com. 442 ; Clerk v. Jones, L. R. 3 Eq. 709 ; infra, p. 301. 
 Nettleship, 2 Lev. 148 ; Ilcirison v. (w) Dkis v. l)e Livera, 5 App. Caa. 
 
 Nequs, 16 Beav. 598 ; ArundcU v. Plapps, 123. 
 10 Ves. 146. {x) In re March, 24 Cli. I). 222, S. C. 
 
 («) Blake V. French, 5 Ir. Ch. 246, 27 Ch. D. 166; Sijmonds v. JInUett, 
 
 257 ; Woodward v. Woodward, 3 D. 24 Ch. D. 346 ; Butkr v. Butl.r, 
 
 J. & S. 672; 2 Rop. Husb. & W. 182; 14 Q. B. D. 831, S. C. 16 Q. B. D. 
 
 2 Blight, Husb. & W. 220; Griffith, 374. 
 5th ed. 20. (//) Jn re March, 27 Ch. D., per Cotton, 
 
 (v) Vansitlartv. Vans'itlart,\K. Si. i . L.J., 170.
 
 is annexed to 
 Kt'parate use. 
 
 282 CONSIDERATION BETWEEN 
 
 this Act made tlie same as that of a feme sole (;:). It is conceived 
 that the liabilities by this Act imposed upon her do not affect 
 her personally, but merely give remedies against her separate 
 property (a). 
 
 When But where the separate property belonged to a married woman, 
 
 anticipation 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 wliich could be enforced against 
 her, whether entered into with her husband or other persons (h). 
 
 "With regard to property to which a restraint on anticipation is 
 annexed, the ]\Iarried Women's Property Act, 1882, has not en- 
 larged a married woman's powers. Her inability to bind such 
 property, by contract or covenant, 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 property as if she were a 
 feme sole (c). 
 
 Married It has been decided by Pearson, J., in In re Shakeqmir (/), that 
 
 woman cannot i i -n t • i t 
 
 contract if she Under the Married Women s Property Act, 1882, a married woman 
 se^'parate"" ^'^^^ ^^^^ ^^^"^^ ^^^° ^ binding coutract at a time when she has 
 property. 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 Idnd after-acquired as well as then existing separate 
 property, if still in her possession when judgment is recovered 
 against her. And of course she cannot bind by a contract 
 
 {z) 45 & 46 Vict. c. 75, s. 1 (2) ; see Chapman v. -»%«, 11 Q. B. D. 27 ; 
 
 Griffith, 5th ed. 16, 17. Jn re Glanvill, 31 Ch. D. 532 ; but Bee 
 
 (a) Alwood V. Chichester, 3 Q. B. D. In re Andreics, 30 Ch. I). 159- 
 
 722; Griffith, 5th cd. 31, 39 ; 45 & 46 (ri) 45 & 46 Vict. c. 75, s. 1 (2), 
 
 Vict. c. 75, 8. 1 (5). (r) Ihitler v. Butler, 14 Q. B. D., per 
 
 (h) Walrond v. H'alrnin/, .lohns. 18. Wills, .1., «34, R35, S. C. 16 Q. B. D. 274. 
 
 (c) 45 & 46 Vict. c. 75, bs. 1 (2), 19 (/) 30 Ch. I). 169. 
 
 I 
 I
 
 HUSBAND AND WIFE. 283 
 
 any separate property to which a restraint on aiilicipation is 
 annexed (//). 
 
 l>ut a married woman might before the IMarricd "Women's Property 
 Act, 1882, and may now, validly contract with her husband or 
 any other person as to property simply limited to her sejiaratc 
 nse (A), or any otlier property which she holds independently of 
 her husband's rii^iits, and which slie has i)ower to dispose of (t). 
 
 Tlius it is clear that the wife's giving up an old settlement made (iivingup 
 in consideration of marriage (Jc), or a jointure (/), is sullicient to ^'Jal'Zieui. 
 support, as for valuable consideration, a new settlement on her, 
 although the second includes property of much greater value than 
 the first (Z;). 
 
 And it seems that, when a wife's right to dower out of her lu-lcasc of 
 husljand's lands was less easily barred than it now is, her relin- 
 quishing that right might constitute a valual)le consideration be- 
 tween them (??i). So where A.'s wife, who had a claim to an annuity 
 charged on his lands by a voluntary deed, or a right to dower, 
 concurred with her husband in a sale of some of his lands, 
 and covenanted to levy a fine, and was induced to do so by otlier 
 estates of her husband being settled on her and her issue, these 
 articles were upheld as for sufficient consideration against a sub- 
 sequent purchaser for value, although the wife, who covenanted 
 to levy a fine, had died without doing so {n). 
 
 But now that the right to dower of women married since the 1st Dower Act. 
 of January, 1838, has been placed completely within the pinver of 
 their husbands (o), it is apprehended that a release of dower could 
 hardly be relied on as any consideration for a contract. 
 
 Where husband and wife both have interests in one property, it Proix^rty iu 
 
 which 
 
 (f/) See rike V. Fitzgibhon, n Ch. D. {m) Jones v. Bonlter, 1 Cox, 2SS ; 
 
 454 ; supra, p. 282. Lavender v. Blahntom, 2 Lev. 146 ; 
 
 {h) Scot V. Bell, 2 Lev. 70; Greene Hewi-wn v. Neyus, 16 Beav. 594, 598; 
 
 V. 0' Kearney, 2 Ir. C. L. 267 ; Hemson Duwson\. Bank of Whitehaven, (iCh. D. 
 
 V. NcyuH, 16 Beav. 694; and see 45 &46 218. 
 
 Vict. c. 75, 8. 1 (2). (») Fitzmaurtce v. SiuIUcr, 9 Ir. V^\. 
 
 (i) See Joyce v. Ilulton, 11 Ir. C'li. 595; followed by Blake v. French, 5 
 
 Rep. 123, reversed on appeal, 12 Ir. Ch. Ir. Ch. Rep. 246. 
 
 Rep. 71 ; and post, p. 29:5. (o) 3 & 4 Will. 4, c. 105. (iavelkiiid 
 
 (A-) Srotv. Bell, 2 Lev. 70. lands arc witliiii the Act: Farley v, 
 
 (/) Cottle v. Fripp, 2 \m\. 220, luul Bonhaiii, 2 .1. & 11cm. 177. 
 see post, pt. iv. Ch. v.
 
 284 
 
 CONSIDERATION BETWEEN 
 
 husband and is quite Open to them to euter into valid, and not voluntary, con- 
 wife have , . , , , 
 
 tracts With regard to tiiat property (p). 
 
 interests. 
 
 Wife's reahy. Tluis, wliere the wife lias a freehold estate in fee, the title to 
 which accrued to her before the 1st of January 1883 (q), both she 
 and her husband have certain interests 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. 
 
 Jlurtgage of 
 
 Beparate 
 
 estate. 
 
 Wife's cou- 
 cunencc. 
 
 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 valu- 
 able consideration (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 interests which 
 the wife has with her husband in such property, her concurrence 
 must necessarily give a valuable consideration to any settlement 
 made of it, and that the consent of each to the alterations of their 
 respective interests must be sufficient to support such an arrange- 
 ment against creditors or purchasers. In Parker v. Carter (t) Sir J. 
 Wigram gave it to be understood 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 could not be voluntary (w). 
 Dut this is opposed to what was said by Lord Ivoniilly, M.R., in 
 Butterfield v. Heath (r), that "the case in Blackstone {vS) lias 
 settled the point, that a married woman is within the statute 
 of 27 Eliz. Ill truth, if it had been decided otherwise, it would 
 
 (;>) Sec Crarhcrode v. Ilallam, post, 
 Appendix No. IX. ; Teasdale v. lirailh- 
 uaite, 4 Ch. D. 85, S. C. 5 Ch. D. 630; 
 In re Foster and Lister, 6 Ch. D. 87. 
 See post, p. 290. 
 
 (7) 45 & 46 Vict. c. 75, ss. 5, 25; 
 Jieid V. Iteul, .31 Ch. D. 402. 
 
 (r) ffirlrr v. in Jul, 22 L. 'J\ 116; 
 Whlthreml v. >Smith,:i !>.■ G. M. & (J. 727, 
 7;?!t, 74(1 ; Atkimon v. ,SmUh, 3 De (J. 
 & J. 186. 
 
 {s) Lewis V. Nauf/le, Anib. 150, S. C. 
 stated 3 Sw. 212, n. ; but sec 45 & 46 
 Vict. c. 75, 8. 3; Griffith, 5th cd. 51. 
 
 (/) 4 Hare, 4<i9-10. 
 
 («) In Munl-rrri/ v. Chinneni, 3 Law 
 Rec. (N.S.) 290, 297, and in H. of L. 
 7 CI. & F. 1. 
 
 {r) 15 Beav. 408. Sec In re Foster 
 and Lister, 6 V\\. 1). 89. 
 
 (w) froodright v. Mosca, 2 W. 151. 
 1019.
 
 HUSBAND AND WTFR. 285 
 
 have l)een to hoUl that, although a marriod woman can, with the 
 
 assistance of her husband, and by coniplyini;- with tli(; forms |iro- 
 
 vided by the statute (x), make a good title to a purchaser fur 
 
 valuable consideration of the lands of which she is seised in fee 
 
 simple, yet that she cannot make a voluntary conveyance of such 
 
 lands." It has now been established that a settlement l)y a Srttlomrntfnr 
 
 married woman of real estate of which she was owner in fee is for u!bartjnin. 
 
 valuable consideration or voluntary, according as tlie circumstances 
 
 of the case shew that a bargain between husband and wife was 
 
 or was not made (?/). 
 
 In an old case (z), where the wife joined with her husband in Jinii v. Hum. 
 letting in an incumbrance on her jointure 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 settle- 
 ment, 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 consideration for settling the estate on the daughters, l)ut 
 was a voluntary gift of the wife to her husband, and therefore 
 the daughters' estates must be taken to be voluntary. 
 
 At the present day at least the mere fact of the real considera- 
 tion not being expressly stated in the deed would not prevent it 
 from being effectual (h), but in cases of this kind the transaction 
 must be shewn to have been a matter of bargain. 
 
 In E'X ixirtc Cox (c) a husband and wife, while the wife was an Ex parte Cox. 
 infant, conveyed a freehold house of the wife to a purcliaser 
 for value. The wife did not acknowledge the deed ; the husl)aiul 
 received the purchase-money. The purchaser contracted to sell 
 the house, and his sub-purchaser required the concurrence of the 
 wife, then of age. The wife gave lier concurrence, after the 
 husband in consideration of that had executed a bill of sale of 
 
 {x) 3 &4 Will. 4, c. 74. Shtrmur v. Sedgioklc, 24 Cli. D. r)07. 
 
 {y) Greenes. 0' Kearney, 2 Ir. C. L. E. See post, pp. 289 et seq. 
 267 ; Tarleton v. Liddeli, 17 Q. B. .800; {z) BaU v. Burnford, Prec. Cli. 11.3. 
 
 Currie v. Nind, 1 My. & Cr. 17 ; He^oi- (a) Sir Nathan Wrijjlit. 
 
 son V. Negus, 16 Beav. 594 ; Teasdale v. (/>) See ante, pp. 260, 207. 
 
 Bralthwaite, 4 Ch. D. 85, 5 Oh. D. 630 ; \c) 1 Cli. D. 302. 
 
 In re Foster and Lister, 6 Ch. D. 87 ;
 
 286 CONSIDER ATIOX BETWEEN 
 
 Wife's concur- liis furuiture to a trustee for her. The bill of sale was duly regis- 
 tlie^bargain. tered, and possession of the furniture was taken by the trustee, 
 although loft in the house occupied by the husband and wife. 
 The husband afterwards went into liquidation. 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 acknow- 
 ledged by her, had never ceased to be her estate. He bought her 
 concurrence in, and confirmation 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 confirma- 
 tion 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. 
 "VMiere 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 transaction against 
 creditors (/) ; but where husband and wife having a joint power of 
 appointment, remainder 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 volun- 
 tary (f/). 
 
 {(J) farter v. Hind, 22 L. T. 116, per merely parol, but it was before the Statute 
 
 Wooil, V.C (Lord Hatherley) ; see also of Frauds. 
 
 Magkerry v. C'hinnery, LI. & G. (t. PI.) (/) Acraman v. Corbeft, 1 J. & H. 
 
 182, S. C. on appeal as Sheehy v. Mm- 410, 422-3; Carter v. Jlind, 22 L. T. 
 
 kerry, 7 CI. & F. 1. 116; and see Doe v. Jiol/e, 8 A. & E. 650. 
 
 (e) Clerk v. Nettkxhip, 2 Lev. 148, (7) Acraman v. Corhett, 1 .1. & H. 
 
 where the agreement seems to have been 410, 420; see also Doe v. Parratt, 5 
 
 T. R. 652. 
 
 1
 
 HUSBAND AND WIFE. 287 
 
 In tlie very early case of GoodrigU v. Moaea (h) Joslnia Ixcadc (!or,<in<iht v. 
 tenant for life of the estate in qu(_!Stion, Elizabeth, liis daii^'hter, ' 
 tenant in tail in her own right, and her husband, Thomas JIarri.s, 
 covenanted to levy a tine (afterwards duly levied) and declared the 
 nses to trustees and their heirs, in trust, as to the rent and profits, 
 to Joshua Keade for life ; and after his decease, to be applied for 
 the support and maintenance of Thomas Harris and Kli/abclh 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 ftjr 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 commented upon 
 and dissented from by Sir G. Jessel, M.R. His Lordship pointed 
 out that the question whether value was or was not given Ijy 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 Gurrie v. Nind (Z;) a married woman conveyed and appointed Chirrie v. 
 land (of which she was tenant for life, with 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 daugliters or 
 younger sons of the marriage, upon trust to sell and divide the pro- 
 duce among them, with remainder to the general appointment of 
 the wife, remainder to her right heirs. The husband and wife after- 
 wards joined in selling the estate, and the mortgage was paid off 
 out of the purchase-money, and they all released their interests to 
 the purchaser. It was held, that so far at least as regarded the 
 provision for daughters and younger sons, the settlement 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.R., shewed that the question of value 
 
 {h) 2 W. Bl. 1019. (A-) 1 My. & Cr. 17. 
 
 (/) 6 Ch. D. 90-92. (/) 6 Ch. D. 92-95.
 
 288 CONSIDERATION BETWEEN 
 
 or no value given l)y tlie husband and wife was not really raised 
 or decided in that case, and that it was plainly a voluntary 
 settlement. 
 
 Biitterfield v. In Biittcrfickl V. Ilccdli (m) much the same point was decided. 
 Tiiere husband and wife joined in executing a post-nuptial settle- 
 ment of the wife's property on the Inisbaud for life, witli remainder 
 to the wife for life, and after the decease of the survivor, for all 
 the issue of tlie 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, 
 witli cross-remainders between them, and in default of such 
 children to the husband in fee. 
 
 Husband and wife subsequently mortgaged the property for a 
 sum of £2500, with a power of sale, and without regard to the 
 limitations of the settlement, and six months afterwanls conveyed 
 it to the plaintiCfs as trustees, 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 plaintill's 
 as purchasers (n). 
 
 From this case also Sir G. 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 Lordship pointed out that the 
 husband gave value and purchased 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 during 
 coverture and estate by the curtesy ; instead of this, she cut her 
 estate down to an estate for life. 
 
 Hewlson v. Hevjison V. Negus (p), as stated by Lord Eomilly, M.R., was as 
 
 follows : — The settlement was post-nuptial, and was made by the 
 husband of the first part, the wife of tlie second part, and two 
 trustees of the third part. After reciting that the wife was 
 entitled to a vested reversion in fee simple in one moiety of certain 
 freehold and copyhold hereditaments, and that she and her husband 
 had agreed to settle the same, the deed witnessed that they granted, 
 
 (w) 15 Boav. 408. (n) C, Ph. D. 05-90. 
 
 (») On the question of the trustees (p) 10 Ik-av. 5U4. 
 
 being ii'irchascrs, see ante, [tji. '22'J et secj.
 
 HUSBAND AND WIFK. 289 
 
 released, and confirmed to the trustees the frcchnld hcri'ilitanii'tits 
 (subject to the estate of the tenant for life), uiion trust to pay tlie 
 rents and profits of them to E. A. Ne^us, the wife, for her sejjarate 
 use, and without anticipation, upon her sole receipt ; and, sultject 
 thereto, to the husband for his life ; and after the decease of the 
 survivor for such persons as E. A. Negus should by will appniut, 
 and in default 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 cujjv- 
 hold 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 con- 
 sideration of this settlement, that it was executed by the wife for 
 valuable consideration, and distinguished the case from (roodrit/hf v. 
 Moses (r) and Ciirrie v. Nind (s), and from Butterfield v. Heath (t), 
 which he had himself decided about twelve months before. He 
 said, " It is clear, both on principle and authority, 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 during coverture, and 
 his giving his wife a sole and exclusive power over them, was a 
 valuable consideration sufficient to support this settlement. This 
 decision was affirmed by the Lords Justices, who considered the 
 settlement was a bargain for value between the husband and wife ; 
 and therefore good against a subsequent purchaser (//). 
 
 In Teasdale v. Braithvxdte (v) real estate was devised to an Tengdale y. 
 unmarried woman, with an expression or wish that, it sue should 
 marry, she should, before marrying, settle the estates for her sepa- 
 rate use for life and to uses as she should by will and notwith- 
 
 (g) See also Muskerry v. Chinncru, see Craclierotfe v. IfaUam, post, Apiiendix 
 LI. & G. (t. Sug.) 185, S. C. (House of No. IX. 
 
 Lords) as i>heehy v. Muskerry, 7 CI. & (r) 2 W. Bl. 1019; et supra. 
 
 F. 1, and see S. C. corara L. C. SugJon, (.s) 1 My. & Cr. 17 ; et supr.i. 
 
 3 Law Rec. (N.S.) 290, 297 ; Greene v. (0 15 Beav. 408; et tiipru. 
 
 0' Kearney, 2 Tr. Com. Law, 267 ; and (m) 22 L. J. Ch. O.'j.'j. 
 
 (r) 4 Ch. D. 85, S. C. 5 Ch. D. 6:H). 
 
 U
 
 290 CONSIDERATION BETWEEN 
 
 standing 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, remainder 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 Heivison v. Negiis (w), and 
 affirmed by the Court of Appeal (x), that the settlement was for 
 value, and good against the subsequent mortgagee. James, L.J., 
 said: "The Vice- 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 quality, come to an agree- 
 ment which is afterwards embodied in a settlement, that is a bargain 
 between husband and wife which is not a transaction without 
 valuable consideration.' " 
 
 Jn re Foster The authorities on this subject were all carefully reviewed in the 
 
 and Lifter. ^^^ ^^ j^^ ^^ ^^^^^^ ^^^ ^^^^^^ ^^^ ^^ g.^, ^ j^^g^j^ ^^-p^ 
 
 In that case freeholds belonging to the wife in fee were by post- 
 nuptial settlement, dated the 5th of December 1857, settled by 
 husband and wife, by deed acknowledged by her, upon trustees to 
 the use of the wife for life, and after her decease to the use of such 
 persons 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 
 mortgaged 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 : " Tlie only question before me 
 is whether the indenture of the 5th of December 1857 is a settle- 
 ment made for value, or is voluntary, which depends, as I under- 
 stand, simply upon two things : first of all, upon the construction 
 of the settlement itself ; and secondly, upon the law as to what a 
 
 (m) 16 Beav. 594. (r) .0 f'h. D. 630. {ij) 6 (^h. D. 87.
 
 HUSBAND AND WITH. 291 
 
 voluntary settleiueut is. First of all, on the constriictiun of tliu 
 settlement itself, independently of the question whether the mere 
 concurrence of the husband, his concurrence bein^' necessary for 
 the conveyance 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 ; consequently, the husband was entitled by law 
 to an estate for the remainder of his life as tenant by tlie 
 curtesy. Thus the wife was entitled to the fee simple, subject, 
 of course, to those interests in the husband. Vtxxt 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 settle- 
 ment ? 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 husl)and 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 probably 
 his child, as he had several children by her." 
 
 " On the other hand, what is the wife's position ? The wife is 
 reduced from being an owner in fee to a life estate, with a testa- 
 mentary 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 con- 
 curring at all. That power, which was in the husband, is now 
 transferred to trustees, 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 tlie husband 
 save to the wife was value as between him and his wife, and 
 what the wife gave up was also value on her part?" 
 
 u 2
 
 292 
 
 CONSIDERATION BETWEEN 
 
 t^hurmur v. 
 /Sedgwick. 
 
 Same prin- 
 ciples in 
 Ireland. 
 
 " As a question of principle, this is a bargain between husband 
 and wife, altering their relative positions as to the estate, and 
 their relative rights and interests in the estate. What one gave 
 up the other acquired, 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 question, 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 con- 
 sideration, and was not within the statute, which only applies to 
 settlements where there is no valuable consideration at all." 
 
 This case has been followed in Shurmur v. Sedgwick (z). 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 pay- 
 ment of Is. yearly if demanded, to trustees upon trust for the wife 
 for life for her separate use, remainder to her husband for life, re- 
 mainder to their children, if any, and the ultimate remainder to 
 the wife absolutely. Two years afterwards, there being no issue 
 of the marriage, 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 of the lease- 
 holds 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 con- 
 sent, and so could defeat her husband's estate. 
 
 The same principles have been recently held to apply in Ire- 
 land, where In re Foster and Lister (a) has been followed, in two 
 cases under the Act of 10 Car. 1, sess. 2, c. 3 (&), which corresponds 
 to 27 Eliz. c. 4. 
 
 Where the property stands limited to trustees in trust for the 
 
 (z) 24 Ch. D. 597 ; and see Schreiber 
 V. Dhikel, 54 L. J. (N.S) Ch. 241, S. C. 
 affirmed W. N. (1886) 78. 
 
 (a) 6 Ch. D. 87. 
 
 (b) Lynch v. Lynch, 4 L. R. Ir. 210; 
 In re Bell's Estate, 11 L. R. Ir. 512.
 
 HUSBAND AND WIFE. JDiJ 
 
 wife for life, with remainder in trust for such persons as she may When wife 
 appoint by will or deed, the whole estate and power of disposition I'Zto'''^'' 
 are in her alone, so that any settlement of it by her must be '"^'" '^""■ 
 
 ,. , ■. T , ,11... ciirreiico not 
 
 voluntary (t!) ; and where the limitations tliemselves do not shew valuable, 
 that the settlement was a matter of contract and exchange, the 
 mere consent of the wife to it (d) does not make it valualjle (r). 
 
 But where (/) husband and wife, tenants by entireties in fee Ath-meon v. 
 simple, mortgaged by feoffment and fine, and by the proviso for '^""^''' 
 redemption the land was to be reconveyed 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 recon- 
 veyance were not voluntary, and not void against a subsequent 
 purchaser. Neither the mortgage nor the limitations on the recon- 
 veyance would have been good without the wife's concurrence, and Unless 
 though it will be seen she was a considerable gainer by the latter, co^ntracteVfor. 
 still she gave something in exchange. 
 
 Money laid out by the husband on land devised to his wife for Husband's 
 life, remainder to her children, or in default, &c., to her in fee, has pende'd on 
 been held a good consideration for a conveyance of it to the use of ^^"''**'* 
 the wife for life, remainder to her children in fee, and, if no child, 
 to the husband absolutely {g). 
 
 Where (h) a wife was entitled to certain property for life for Contract as to 
 her separate use, remainder to the husband for life, with remainder estate.^*^^*'^'' * 
 to their children as they should appoint, and she conveyed her life 
 estate to trustees for the benefit of her children, and the husband 
 covenanted to assign his life interest if he sliould survive his wife, 
 it was held, on appeal (/), that this was such a contract as could 
 
 (c) Currie v. Nind, 1 My. & Cr. 17; and In re March, 24 rb. \\ -JJ-J, S. C. 
 
 In re Foster and Lister, 6 Cii. D. 87. 27 Ch. D. ItJG. 
 
 {d) Under the statute 3 & 4 Will. 4, [y) Crojh v. Middletuu,-! K. & J. UM, 
 
 c. 74. S. C. 8 De G. M. & G. 19'-'. 
 
 (e) Ante, pp. 284, 285. (A) Joyce v. Hutton, 12 Ir. Cli. l.'cp. 71. 
 
 if) Atkimonv. Smith, ^ De G. &. J. (/) Pieveisiiiij; tiie <k-i-ision of tlit- 
 
 186; but .see now 45 & 46 Vict. c. 75, Master of the Kull^, II Ir. Cli. 12:j.
 
 21)4 CONSIDERATION BETWEEN 
 
 be enforced by the children against their father surviving his wife. 
 ]t was said the wife had a complete estate vested in her, indepen- 
 dently 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 (k), were entitled to enforce. 
 
 Settlement Of coursc a settlement by husband and wife, whereby they 
 
 giving the i i i • 
 
 same ii.ttrebts. merely take such interests as they would have been respectively 
 entitled to without any settlement, cannot but be voluntary (I). 
 
 Consideration It will be Seen from these cases that a settlement between 
 
 nmvmfr from 
 
 husband. husband and wife of the wife's property will be deemed made for 
 
 valuable consideration if the husband can be shewn to have jiiven 
 up any interest in that property. In Teasdale v. Braithwaitc {m) 
 tlie wife was seised in fee of the real estate and not as her separate 
 property, so that her husband's consent to her alienation of it was 
 necessary. So in In re Foster and Lister (n) the wife, as seised in 
 fee, could not convey that estate in fee, or lease any part of it, with- 
 out 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 tlie vicre 
 concurrence of the husband could operate to create a valuable 
 consideration (o), quite apart from his giving up any interest. 
 
 (Z-) Dnrpvpnrt v. Jh'slinpp, 2 Y. & vnir v. Sediju-'irk, 24 Cli. D. 597, ante, 
 
 r. Ch. 4.01, 400, S. C. 1 Phil. 698; post, p. 292. 
 
 l)p. .3.36; pt. iv. ch. iv. ; wnd f^ee Greene (in) 4 Ch. 1). 85, S. C. 5 Ch. D. 6.30. 
 
 V. (>' Kearney, 2 Ir. (\ L. liep. 267. (n) 6 CI), I). 87. 
 
 (/) HoUotnay v. Hendhujton, 8 Sim. (o) 6 Ch. I). 87 ; but see now 4.0 & 46 
 
 .324 ; Arrnman v. f'orbitt, 1 J. & Vict. c. 75, and (iowlchild v. Domjlas, 
 
 Hem. 410, ante, pp. 286 et 8<?(i. ; Shiir- ,3 Ch. D. 6.02, 6.04.
 
 HUSBAND AND WIFE. 2l)5 
 
 The importance of this class of cases has been very gi-eatly imnonan.-.; of 
 lessened by the Married Women's Property Act, 1882. P,y this |l','.i'tir'''* 
 Act a woman lias, holds, and can dispose of all property, real or '^Y,-""'!'''! ''^ 
 personal, as her separate property (j)) which belongs to her at her Y"inen"H 
 marriage, or which she acquires or which devolves on her after her mTJ ^ *" ' 
 marriage, if she has married after 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 married 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 deprived by this Act of such a riglit 
 in cases in which he was before this Act entitled to it (q). 
 
 The case of Shunnur v. Sedgwick (?-) would appear to be a 
 leading authority on this question, and decides that even if tlie 
 husband has an estate by the curtesy in his wife's separate pro- 
 perty, 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 hei 
 and her husband to modify his interest in her property ; inasmuch 
 as he now acquires by virtue of the marriage no interest whatever 
 in her property (s), and therefore acquires no interest with whicli 
 to bargain. 
 
 Of course, the principles of Teasdale v. Braithivaitc (i) and In Bargain may 
 re Foster and Lister (u) will still apply in any case in whicli tlie if woman 
 marriage took place before 1883, and the married woman first i]^^]'' 
 
 (p) 45 & 46 Vict. c. 75, ss. 2, 5 ; (r) 24 Ch. D. 597. 
 
 Griffith, 5th ed. 14, 42, 58. (s) 45 & 46 Vict. c. 75, h. 2 ; bupra, 
 
 (q) See Griffith, 5th ed. 10, 58, 69 ; p. 223. 
 
 but see Wolstenholme, Conv. Acts, (t) 4 Ch. D. 85. 
 
 4th ed. 9. (") 6 Ch. D 87.
 
 296 CONSIDEHATJON BETWEEN 
 
 acquired her interest in tlie property the subject of the settlement 
 before 1883 (v). 
 
 Wife's pro- -^ll property, real or personal, of the wife's M'as considered as 
 
 pertv "|"cli lielonfrinj:; to the husband in her ri^ht ; but as to such of it as he 
 
 liusuana <:oula o o o ; 
 
 n..t >;et at could not obtain complete possession of without the assistance of 
 
 without aiil of 
 
 equity. a Court of equity, that Court would not assist, nor, if the wife 
 
 sliould dissent, would it allow, the hus])and 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). 
 
 Effpct of ^^y ^^^^ Married Women's Property Act, 1882 (x), the operation 
 
 Manie.l (^f ^-j^jg rjaht of a married woman to an equity to a settlement is 
 
 \\imiens " i J 
 
 Property Act, entirely confined to the case of such women as have married before 
 1882. 
 
 January 1, 1883, and whose title to the property in question has 
 
 accrued before 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 her marriage, is, if she has married 
 
 after 1882 by this Act declared to be her separate property. 
 
 Equity to T\\\'ii rulc of couitv — the wife's equity to a settlement — was 
 
 seitleiiient. founded on the principle that he who seeks 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 
 Wuiver of. wife, and might have been waived by her, even after she had 
 til ken steps to enforce it {z). 
 
 r'^)ntraci.s ^^ appears that where a settlement has been made in pursuance 
 
 louiidtJ on. of an order enforcing the wife's equity, the Court will support it 
 as a good settlement for valuable consideration {a). 
 
 (v) 45 & 46 Vict. c. 75, s. 5 ; Beid v. (ij) Bosvil v. Brdnder, 1 T. Wms. 
 
 Beid, .31 C!i. D. 402 ; and In re Tench's 459 ; Sturgis v. C'hawpnei/s, 5 My. & 
 
 Trusts, 15 L. R. Ir. 406. Cr. 97. 
 
 ((/•) Elibank v. Muntolieu, 5 Ves. 737 ; (z) See Barrow v. Barrow, 4 K. & J. 
 
 Sturgis v. Champneys, 5 My. & Cr. 97 ; 409, 424 ; Seton, 4th ed. 676, 680 ; 
 
 Gkaves v. Paint, 1 Do G. J. & S. 87 ; iStndpole v. Beaumont, 3 Ves. 89 ; and 
 
 tee 1 Wh. & Tu. L. C. 6th ed. 486 et see Elworthy v. Wickstead, 1 Jac. & W. 
 
 Beq. ; Knight v. Knight, L. R. 18 Eq. 490. 69 ; Hedges v. Clark, 1 De G. & S. 
 
 (r) 45 & 46 Vict. c. 75, sb. 1 (1), 2,5; 3.54; and Britten v. Britten, 9 Beav. 
 
 and sen ririttith, 5th ed. 42, 57, 110-111 ; 143. 
 
 Edwards & Hamilton, 243 et seq. ; supra, (n) Moor v. Bi/rau't, Prec. C'h. 22 
 
 note {)•). post, p. t. iv. C\i. V.
 
 IlUSliAND AND WIFH. •J97 
 
 In Wicchr v. Caryl {h), on equity reserved, the qnostion was, ]\i,r,hrv. 
 whether a settlement by Mr. C. on liis wife, after niarriaj^'e, was ''"'■^' 
 voluntary and fraudulent against ereditors. Lord Hardwicke said, 
 Mrs. C. was entitled, as daughter of Lord ]\L, to a moiety of 
 £12,000, secured by her mother's nuirriage settlenx-nt, subject to 
 the contingency of being lessened by tlie birth of another daiighter ; 
 a marriage was clandestinely had with Mr. C. ; after that, Um\ 
 M. secured the £6000 on liis estate, and Mr. C. made a settlement 
 on his wife. She was entitled to £6000, and no evidence apjtears 
 that her father intended her further bounty. There are general 
 principles well known that marriage is a valuable consideration, 
 and that post-nuptial settlements may, by other considerations, 
 become good and for valuable consideration ; and that if a young p„Bt nuptial 
 lady is entitled to a trust term, which the husband cannot lay p^rl.'itjrty"^,,^^ 
 hold of and possess nor get at without the assistance of this Court, J*-**^^ '"> 8""^- 
 if the trustees will not raise the portion, and the husl)and comes 
 for aid here, the Court will decree an adequate settlement to be 
 made on the wife, and will support 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. 
 
 This is the point as to which this rule of equity — the wife's Settlement of 
 right to a settlement — is important with regard to the statutes of jj^^yg proju-riy 
 Elizabeth, viz., that a settlement by the husband of so much of his ^^'''*^" ?"**" 
 
 •^ npaiii8t 
 
 wife's equitable propertv as would have been enforced against him ciciitors or 
 
 " ... piirchaseni. 
 
 by the Court, if he had tried to obtain possession, will lie con- 
 sidered as a binding settlement, good against his creditors or sul)- 
 sequent purchasers from him (c). 
 
 In a case (d) in Ireland before Lord Plunket, a married woman Chsc in 
 was entitled to a third of a sum of £6000 charged on lauds, and '"'' *° ' 
 which had been appointed by will in her favour, in exercise of a 
 
 (6) 1 Arab. 121. Montpjiorc v. Jkhrens, L. ]\. 1 Kq. 
 
 (c) Moor V. Bycanlt, Prec. Ch. 22 ; 171. 
 ffinton V. Scot, Moseley, 336; Middle- {d) M'f'lintock v. Ashe, 2 Law Roc. 
 
 come V. Marlow, 2 Atk. 620; and see (N.P.) 45.
 
 298 CONSIDERATION BETWEEN 
 
 power to charge contained in a previous settlement. Before any 
 of her share was paid, her husband conveyed to trustees £1200, 
 part of the said charge of £2000, in trust for his wife if she 
 shoidd survive him, and after her deatli for the issue of the mar- 
 riage. 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 appears, 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 under a conscientious 
 obligation, and that settlement cannot 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 an act which he was under a moral obligation to per- 
 form, but one which lie might have been compelled to do ; and 
 the question was, whether this could be considered 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 intrinsic evidence on the face of the matter 
 itself to shew that the deed was the consequence of a previous 
 contract. 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 arrangement, and cannot be 
 said to be voluntary or fraudulent (/). 
 
 The amount The amount whicli can thus be validly settled by private agree- 
 
 thu8 protected. .... 
 
 ment between the parties is regulated to a certain extent by the 
 amount which the Court would have ordered to be settled at the 
 suit of the wife, and must not include more than tliat. As the 
 equity of the wife does not extinguish the legal right of the hus- 
 
 (/') See S. C. in the C. 15., 1 Law Rec. below that the subject of the settlement 
 (N.R. ) 145. was p'TKonalty, .-ind tbcrcfon^ on that 
 
 if) It was also decided in the Court ground albo not within the statute.
 
 HUSBAND AND WIKK. 209 
 
 band, and his existing creditors are entitled to all rights over the 
 j.roperty which he could honestly have exercised, it is not too 
 much to say that any settlement materially exceeding what the 
 Court would have enforced would be void against them as to the 
 excess (//) ; though it might have been thought that, taking int(i 
 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 arrangement, the amount settled under 
 such circumstances would not be closely scrutinized. 
 
 In Spirctt v. Wilhios (h), however, where there was a jiosl- Snintt v. 
 nuptial settlement of property, out of which, as was deciiled in '**''""'''■ 
 the same suit (i), tlio wife was entitled to have three-fourths 
 settled on herself and her children, the settlement was set aside as 
 void against the husband's creditors, 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 Any scttle- 
 
 •1 p -1 i,i'iiii nieiit on wife 
 
 on a married woman of property with regard to which she had an barH her 
 equity to a settlement, will extinguish that equity although slie ^""i"'^^'- 
 takes nothing by it ; for such a settlement to be valid must l>e 
 acknowledged by her under the Fines and Recoveries x\ct (A), and 
 will therefore be a waiver of her right. Besides this, the mere 
 transfer of the property for such a purpose 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 (/). 
 
 Although the wife may, up to a certain point, waive her right to K,^nhy iiic« 
 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 Kxt.-n.lH to 
 be extended to her children; and when she has entered into a 
 contract, or has obtained a decree for a settlement, the interests 
 
 iff) See Frlnffle v. Horlgsov, 3 Ves. (k) 3 & 4 Will. 4, c. 74 ; but bpo p. 20f.. 
 
 617, 1 Fonbl. E(|.' 275 ; Seton, 4th ed. 680. (/) Jh/Uiml v. Srnith, 1 My. & Cr. 53 ; 
 
 (h) 3 D. J. & S. 203. 2n & 21 Vict. r. 57; Warden v. Jonts, 
 
 (i) 13 W. R. 1034, S. C. L. R. 1 Ch. 620. 2 De G. & J. 76, 87.
 
 300 CONSIDERATION 
 
 of the children will nut be defeated if she die without waiv- 
 ing it (//(). 
 
 rn.Icr control 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 "v^ould 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 (;i), 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 he precluded from her equity (v). 
 
 Principle of Thc principle on which the Court acts is to let in the equity 
 
 of the wife and children, and to that extent to exclude the hus- 
 band's marital right, but not to interfere with the marital right 
 more than is necessary for that purpose (5). 
 
 The amount The old Tulc was to divide the fund equally between the wife 
 
 Battled. 1 , -, 1 
 
 and children on the one hand, and the husband, or those claiming 
 under him, on the other (?■). In uKjdern times that rule has been 
 considerably relaxed, 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 exercise its judicial discretion 
 as to the amount to be settled (f). The Court in special cases will 
 order the whole fund to be settled : as where the husband is insol- 
 vent or has deserted his wife, so that he is unable or refuses to 
 maintain her (n), especially where the fund is small (r), or where 
 
 (m) Murrciy \. Elibaiil:, 1 Wh. &.Tn. (t) Taunton \. Morris, 11 Ch. D. 
 
 L. C. 6tb ed. 516 et seq. 781. 
 
 (h) Bonner v. Bonner, 17 Beav. 80; («) Brett v. Greenirell, 3 Y. & C. 
 
 Barnard v. Ford, L. K. 4 Ch. 247. Ex. 230 ; Gardner v. Marshall, 14 Sim. 
 
 (o) iipirett V. Willows, L. R. 1 Ch. 520. 575 ; Gilchrist v. Cator, 1 De G. & Sm. 
 
 {p) In re Lush's Trusts, L. II. 4 Ch. 188; In re ft/^/er, 14 Beav. 220; Layton 
 
 591. V. Layton, 1 Sm. & Giff. 179; Francis 
 
 (q) Walsh V. Wason, L. R. 8 Cli. 482 ; v. Brookiny, 19 Ifeav. 347 ; In re Kin- 
 
 Croxton v. May, L. R. 9 Eq. 404. caid's Trusts, 1 Drew. 326 ; Dunkley v. 
 
 (r) Beresford v. Hohson. 1 Mad. 362 ; Lunkhy, 2 De G. M. & G. 390 ; In re 
 
 Jetrson v. Moulson, 2 Atk. 423 ; Worrall .Suyyitfs Trusts, L. R. 3 Ch. 216 ; Boxall 
 
 V. Marlnr, 1 Cox, 153 ; Spirett v. Willoics, v. Boxall, 27 Cli. D. 220. 
 
 L. K. 1 Ch. .520; Setoti,4th ed. 6H0. (r) Wardx. Yates, 1 Dr. & Sm. 80; 
 
 (s) In re SugyitCg Trusts, L. R. 3 Ch. Re. Hoopers Trusts, 6 W. K. 824 ; Be 
 
 217, 218. Groves' Trusts, 3 Giff. 575.
 
 IN SEPARATION DEEDS. .'501 
 
 the husbiiud has ah'cady received part of Llic fuml (//•) ; or when* 
 the separation has been caused l)y tlie wife's ill-Iu^akh, ami the 
 husband does not contribute to her supjiort (.'). 
 
 All deeds of arranfrpment entered into for the purpose of alter- s-'pHmtion 
 ing in any material degree the relation wliich the law establislies "''''' " 
 between husband and wife are attended with very great difliculty. 
 They usually originate under circumstances of a distressing and 
 serious 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 marital partnershiji and 
 contracts entered into on the dissolution of tliat partnership. 
 
 Marriage settlements are protected as made on valuable con- 
 sideration. An arrangement on separation, however, even after 
 attaining the form of a deed of separation actually executed, is of 
 itself a post-nuptial deed, and therefore a mere voluntary arrange- ar<« per bo 
 
 ,,.,.. .,, volunlarv. 
 
 ment {z), but is not against public pohcy {a) ; and while it is still 
 
 merely in agreement will not be enforced by the Court {h). But other consi. 
 
 . 1 • • 1 i. ii, »• dcmtionH to 
 
 there may be other considerations moving between the parties „,„!..■ them 
 which will support the deed against even the claims of creditors valuable, 
 or purchasers (c). 
 
 A covenant in a deed of this description, by the trustees of the fovenant of 
 deed, or by a third person {d), to indemnify the husband against tnisiees .'.r a 
 the debts which the wife may contract after the separation, has ^^'J] J'f^X'. 
 always been regarded as a valuable consideration {e). 'l*-'^"'- 
 
 {w) Scotty.S2}a!ihett,Bnnc.&G. 599; Warrender v. Wnrrender, 2 CI. & F. 
 
 Ward V. Yates, 1 Dr. & Sm. 80; lie 527; Legard v. JoIdisoii, B Yes. ^ri'2. 
 
 Merriman's Trmts, 10 W. R. 334; Ran- (c) Buffles v. Alston,!.. R. 19 Eq. 539. 
 
 ning, Mar. Sett. 52. i<i) Compton v. ColUmon, 2 B. C. 0. 
 
 Oi I . 
 
 (x) Croxton v. 3/oy, L. R. 9 Eq. 404. 
 
 (v) Jodrell V. Jodrell, 9 Beav. 53, per {e) Stohes v. Stohes, post. .Vj^pendix 
 
 Lord Langdale. ^'o- V. ; Seeling v. f'ravhy, 2 Vern. 386 ; 
 
 r^\ Ibid Angler V. Angier, Prcc. C'h. 497 ; Stephnu 
 
 (a) Runt y. IIunt,iD. F. & J. 221, v. Olive, 2 B. C. C. 90; The King v. 
 
 227 ; Besantv. Wood, 12 Ch. D. 605 ; Ca- Brewen, 2 B. C. 0. 93, n.; Compton v. 
 
 Ml V. Cahill, 8 App. Cas. 420. CoUinwn, 2 B. C. C. 377 ; Fitzer v. 
 
 (6) Fitzer v. Fitzer, 2 Atk. 511; Fitzer, 2 Atk. 511; Worrall v. Jacob. 
 
 Clonghy. Lambert, 10 Sim. 178; West- 3 Mer. 256. 2G9 : Ehmrthg y. Bird, 
 
 meath v. WeMmeath, Jac. 126; Van- 2 S. & S. 381 ; GihU s: Hordn.g, h.K. 
 
 sittart V. Van^ittart, 2 De G. & J. 249 ; 8 Eq. 490, S. C. L. R. 5 Ch. .1.56.
 
 302 CONSIDER ATIOX 
 
 It has been said that the effect of such a covenant is not very 
 great, for where a separation between liusband and wife is made 
 by deed or by mutual agreement, the liusband, 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 allow- 
 ance 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 (A). If the parties sepa- 
 rate by mutual consent, they may make their own terms, which 
 are binding on both so long as they continue the separation (t). 
 
 Questions may also arise as to whether the separation has been 
 sufficiently notorious in the neighbourhood (A:) ; for to make a 
 separate maintenance absolve the husband from liability there 
 must be, not necessarily a personal, but an implied, notice to 
 the tradesmen, through the publicity of the separation. It is con- 
 ceived that if a wife immediately on separation from her husband 
 bought necessaries on credit from a tradesman with whom she 
 had dealt before on credit, and who had no notice of the separa- 
 tion, her husband would be liable to the tradesman, notwith- 
 standing an adequate allowance {k) ; but that in such a case the 
 covenant of indemnity would enable the husband to recover from 
 the trustees (l). 
 
 Of value to Such a covenant may then be of value to the husband ; it may 
 
 the husband. cc ^ \ • • 'J 
 
 atlord him important protection and tlirow a burthensome obliga- 
 tion on the trustee ; and it has been uniformly decided tliat a 
 bona fide separation deed containing such a covenant is not volun- 
 tary (m), and it can be enforced, though the husband is willing to 
 receive her back (l). 
 
 if) Duffield V. SroU, .3 T. R. 374. (i) Eastland v. BurcheU, 3 Q. B. D. 
 
 (g) Mizen v. Pick, 3 M. & W. 481 ; 436. 
 
 Hvrae v. Craig, 2 N. R. 148. (A) Todd v. Stokes, 1 lA. Raym. 444, 
 
 (A) Hodghinson v. Fletcher, 4 Campb. Salk. 116 ; Wallis v. Biddich, 22 W. R. 
 
 70 ; Liddlow v. Wilmot, 2 Stark. N. P. C. 76 ; Eastland v. BurcheU, 3 Q. B, D. 
 
 86 ; Emynett v. Norton, 8 C. & P. .506 ; 432, 436 ; Lush, H. & W. 403. 
 
 Marshall v. JiiUton, 8 T. R. 54.5 ; (/) Stolcca v. Stokes, post, Appendix 
 
 Worrallv. Jacob, i Mer. 269; Dehenhnm No. V. 
 
 X. Mtllov, 6 App. Cas. 24. (m) Worrall v. Jocnh, 3 Mer. 266.
 
 IN SEPARATION DEEDS. :}()3 
 
 A wife may in equity enforce a covenant ontcii'd into l>v Iht wiun «ii.. 
 
 husband with tlie trustees of a separation deed l)ctwct'n licr and |^"|.'„ 
 her husband, if she is beneficially interested in that covenant, and 
 the trustees, on receiving a proper indemnity, refuse to sue (?/). 
 
 III! <-iir>>rcc 
 
 Hunt. 
 
 It is conceived that under the IMarried Women's Property Act, TniHtoo for 
 
 "; not II 
 'Buury, 
 
 1882, a married woman can contract witli her husljand, just as „ecl[.Kiur ""* 
 
 with any other person (o) ; and tlierefore that a covenant hy a 
 trustee for her in such deed executed after 1882 will be unneces- 
 sary (o). 
 
 It is a doubtful question whether the effect of that Act is to iBrovonnm of 
 make a covenant by a woman married after 1882 to indemnify 'vlfe'aW ^ 
 her husband against her future debts merely a voluntary covenant, j^'JU'^'^'J^! ^r 
 or whether it will still be held 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 husband's 
 liability to maintain her, and as it does confer contractual power 
 upon her in respect and to the extent of her separate property, tliis 
 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 consideration. Under the provisions of 
 the Married Women'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 respect 
 thereof. To shift the liability from herself, she must prove licr 
 
 (n) Gandy v. Gandy, 30 Ch. D. (5) Corhett v. Poelnitz, 1 T. R.^ 5 ; 
 
 57 73 74. overruled by Marshall v. Button, 8 T. H. 
 
 (o) Ante, p. 282; Griffith, 5th ed. 545. 
 
 16, 20; Lusli, H. & W. 401 ; Eversley, (r) Hyde v. Frue, 3 Ves. 44(5. 
 
 Dom, Kel. 467,468. (") 45 & 46 Vict. c. 75, R. 1 (2), (3), 
 
 (p) Key & Elphinstone, 2nd ed. vol. 2, (4) ; see firiflltl), f-th cd. 31-36. 
 419.
 
 304 CONSIDERATION' 
 
 contract to be tliat of lier husband's agent ; wlietlier she was or 
 
 was not living with her husband at the time she contracted tlie 
 
 Covenant also Jebt. Where the covenant is not against debts alone, but also 
 
 against claim ... 
 
 for alimony, against any claim of alimony, it makes the case stronger (t). 
 
 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). 
 
 O.rxlitii.nal And where in articles on separation the covenant by 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 benefit, this covenant by the 
 trustees, although to a certain extent conditional, was held to be 
 a sufficient consideration to induce the Court to enforce the 
 articles against the husband (/•). 
 
 Agreement An agreement between a husband and his wife's father that 
 
 taining all the husband and wife should live apart, and that the husband 
 propei^cfauses •'^^'^ould execute a deed of separation containing all usual and 
 proper clauses, and securing an annuity for the maintenance of 
 his wife and child, 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 (u-). 
 
 Kixnn V. In Nixon V. Hamilton {x), on separation, an annuity of £600 
 
 venalft'bv'^" was givcu to the wife, and there M^as a covenant {y) by the 
 wife's trustees trustees that the wife should well and trulv provide for, support, 
 
 to support " ' ^ 
 
 children. and educate the five children of the marriage until their coming 
 
 of age, marriage, death, or removal by the husband. As to this, 
 
 (0 Worrall v. Jacob, 3 Mer. 256. (w) Gihbn v. Harding, L. R. 8 Eq. 
 
 (m) 45 & 46 Vict. c. 75, s. 1 (2) ; see 490, S. C. L. K. 5 Cli. 336. See 3(3 Vict. 
 
 Weldon V. Winnlow, 13 Q. B. D. 784; c. 12; Besnnt v. Wood, 12 Ch. D. 005; 
 
 TiirnbuU v. Formnn, 15 Q. B. D. 234. Hart v. Hart, 18 Ch. D. 622. 
 
 (j>) Welienley v. Wellesley, 10 Sim. (x) 2 Dr. & Wal. 364. 
 
 270, S. C. 4 My. & Cr. 575. (//) I hid. at p. 370.
 
 IN SEPARATION DEEDS. 305 
 
 Lord riunket, Lord Chancellor uf Ireland, said : " 15ut as to the 
 deed itself and the considerations stated on the face of it, no 
 answer appears to jnc to have been made to the argument 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 ])aid for liy her. Now, is not that quite 
 sufficient to take this deed out of the ordinary case of voluntary 
 settlements ? The covenant is, not that the maintenance and 
 support of the children is to come out of the annuity of £G00 ; 
 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 independently 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 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 separation deed Tiovision for 
 that the husband shall be at liberty to reimburse himself out of niont of wife's 
 an annuity secured to the wife by the same deed, does not an„uity!^ ° 
 prevent that deed from being voluntary and void against subse- 
 quent 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 nuule (■:;). 
 
 It followed from this that wdiere the wife had no separate Covonant by 
 1-1 1 • i 1 J. 1 '■if'8 only, 
 
 property at the tnne she entered into the covenant, or only 
 
 property settled to her separate use without power of anticipation, 
 
 such covenant hy her alone w^ould 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 {n). 
 
 And this is still the case if the wife enters into the covenant 
 after 1882, and at that time has no existing separate property (6); 
 for she cannot then enter into a binding contract. 
 
 {z) Com- V. Foster, 1 .T. & Hem. 30; />' In re ShalccKpenr. .".d (1,. P. 109; 
 
 per V.-f. Sir AV. P. W'ooJ. I.") ^^ H'' Vict. c. 7."., s. 1 .-'., » . 
 
 (rt) Wulrond v. M'dlrond, .lohus. IS.
 
 306 
 
 CONSIDERATION 
 
 Inhibition of 
 Scotch Court. 
 
 Other con- 
 siderations 
 may support 
 separation 
 deeds. 
 
 Release of 
 marital rights 
 formerly for 
 value. 
 
 A process of iuliibition issued out of a Scotch Court ou the 
 part of a husband against his wife, after a separation, to prevent 
 her charging liis property with the payment of his debts, seems 
 to be nothing more than a kind of notice to the public that the 
 husband will not be answerable for her debts, and does not 
 prevent the provisions of the separation deed from being volun- 
 tary against the husband (c). 
 
 A covenant to indemnify against the wife's debts is not the 
 only consideration which will be allowed to support a deed of 
 this kind. 
 
 Thus, it has been held that a release by the husband of his 
 marital rights in all future-acquired property of the wife is a 
 good consideration from the husband to support his claim to an 
 annuity secured to him by a separation deed, and therein charged 
 by the wife on her separate estate ((/)• 
 
 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). 
 
 I 
 
 Effect of 
 Married 
 W'omen's 
 
 It is an undecided point whether, under the Married Women's 
 Property Act, 1882, such a release by the husband will be any 
 longer a valuable consideration. It is conceived that, as by that 
 Act the husband's marital rights in the property of his wife are 
 entirely destroyed, such release will only be voluntary (/). 
 
 Where the husband has, by his misconduct, given his wife a 
 right to separation and maintenance, if she chose to take pro- 
 ceedings against him in the proper Court, an allowance made to 
 her by him in a separation deed will be looked on as a com- 
 promise of that claim of hers, and on valuable consideration. 
 
 Bobbsv.Eull. Thus in Huhhs x. ITi/U (;/) the husband (the defendant) was 
 indebted to the plaintiff in judgments and otherwise; a separa- 
 tion took place between him and his wife, upon which occasion he 
 
 Compromise 
 of suits for 
 divorce, &c. 
 
 (c) Wiilats T. Bush)/, 12 L. .1. Ch. 
 
 id) Lof/an V. lUrkclt, 1 
 I'l'U. 
 
 Mv. & K 
 
 (c) Marshall v. Marshall, 5 P. T>. 22, 
 3; Clark v. CUirh, 10 V. T>. IH» 
 (/) Ante, pp. 22:i, .'O.'i. 
 {;/) 1 Cox, 445.
 
 IN SEPARATION DEEDS. 307 
 
 settled part of his real estates to the yearly anionnt of £300 upon 
 his wife for her separate maintenance, and on the children 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 tiled by the judgment creditor to 
 set aside the settlement as voluntary, that, since the wife was, in 
 consequence of her husband's misconduct, entitled to a divorce a 
 mensa et thoro, and consequently to an all(j\vancc for alimony, 
 there was a valuable consideration, which supported the deed 
 against the husband's creditors. And so it was determined, the 
 Master of the Eolls thus expressing himself: "I am now bound 
 to decide the question whether, the husband having behaved so 
 ill as to entitle the wife to obtain a divorce in 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 tlie 
 husband on the threshold, and say she will accept the maintenance 
 proposed by him without litigation, whether this can be said to 
 be such a voluntary act as to be fraudulent against creditors- 
 Surely this settlement can never be said to be without considera- 
 tion. 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 (//). 
 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 IFilson v. Wilson {i), in the House of Lords, it n'jhon 
 was held that the stopping by the wife 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 could have obtained 
 
 (A) See Mxon v. llumlUon, 2 I). & ami cases tlicrc cited ; and JIaworth v. 
 
 Wal. 304, 388; Nunn v. Wihmorc, H LWor/,-, -4 Y. & r. t, S. f.^'.i CI. & F. ;V.»; 
 
 T. R. .rJl. Gibhs V. Jlardhif/, L. H. ."> CI). 3.3G; 
 
 (/} 1 U. L. C. 538, S. C. 5 II. L. <". 4'», ^''T, ^P- I''- -»*1 "'• '■■*"'• 
 
 X 2
 
 308 
 
 CONSIDERATION 
 
 a decree for alimony. Lord Cottenbam said : " One part of the 
 consideration is tlie stopping of the suit in the Ecclesiastical Court. 
 The stopping of those proceedings seems to have been an impor- 
 tant object to Mr. W. — of the reason for which he was the best 
 judge — and that alone was a sufficient consideration. In Bate- 
 man v. Countess of Ross (A) there was a suit pending for a 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 Ecclesiastical Court 
 to public discussion ? " 
 
 Contract not This case established the principle that it was not illegal, or 
 lestUufbn of Contrary to public policy, that husband and wife should bind 
 conjugal themsclves by a deed that neither of them should institute a suit 
 
 rights. '' 
 
 for the restitution of conjugal rights. This principle has been 
 repeatedly followed (/). 
 
 In Bcsant v. Wood (m) .Sir G. Jcssel, M.li., pointed out that 
 the right of a married woman to contract not to sue for a restitu- 
 tion of conjugal rights is a corollary from her right to compromise 
 such suit, and that such contract was binding on her. 
 
 So in Rart v. Rart {n) Kay, J., held that the main consider- 
 ation for an agreement to execute a deed of separation between 
 husband and wife was the compromise of litigation ; and in Bosc 
 V. Bose (o), following Besant v. Wood (m), Sir G. Jessel, M.K., 
 held that a contract by a married woman to compromise a suit 
 was a perfectly binding agreement on her. 
 
 Contract Such contract, however, whether it contains a covenant by the 
 
 TxTcut'cVby^ trustees of the wife, or merely by the wife alone, must be duly 
 executed by her. That is to say, it must be executed by her 
 with the formalities which would be ref[uired if she entered into 
 a contract for value with any other person than her husband 
 respecting the same subject-matter. 
 
 wife 
 
 (k) 1 Dow, 2-^rj. 
 
 (/) Jiowley V. Bowley, L. R. 1 If. I.. 
 So. 62 ; StancB v. Staves, 3 P. I ). 42 ; 
 Marshall v. MarshoU, ', 1'. ]). V.i ; 
 Besant v. Wood, 12 Cli. J). C0.5 ; Hart 
 V. Hart, 18 Ch. D. C70 ; Hose v. lloise, 
 
 8 P. 1). 98; Cahdl 
 Cas. 431; Clark v. 
 188. 
 
 (»() 1-.' CI). 1>. m>.'). 
 
 («) 18 ( 'h. D. lis.'). 
 
 (o) 8 P. I). 'J8. 
 
 V. f'ahill, 8 App. 
 Clarl; 10 P. D.
 
 TN SEPARATIOX DEEDS. 309 
 
 So a stipulation (in an agreement to compromise a suit for 
 restitution of conjugal rights) that a married woman sliould re- 
 lease 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, whicli was 
 not duly acknowledged by her, altliou.i^h duly executed by her 
 husband, was held not binding on her (j>). 
 
 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 wliich she can bind thai property 
 if she were dealing with any person other than her husband. 
 
 Under the Married Women's Property Act, 1882, a contract 
 entered into by her now binds both her separate property at the 
 date of that contract, and also all her future-acquired separate 
 property (q). But a married woman cannot enter into a valid 
 covenant or contract in a separation deed under this Act unless 
 at that time she has some existing separate property (/■). 
 
 The theory of a separation deed, said Lord Westbury in limit Theory of 
 
 TT-/\'i-' 1 11111 separiition 
 
 V. It2i7it (s), " is that it IS a contract between the husband and j^ed. 
 wiie 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 w^as not liable upon such a deed until she had 
 executed it, or had unquestionably adopted it. Her position, in 
 an ordinary separation deed, until slie 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 (0 so soon as they had 
 executed it. It is conceived that with regard to deeds executed 
 after 1882 this doctrine vrill no longer obtain. 
 
 It seems doubtful whether a wife's relinquishing her claim Claim for 
 
 . . 1 aliiuonv. 
 
 to a decree for alimony is of itself a consideration whicli 
 
 (p) Cahill V. CaMl, 8 App. Cas. 420. («) 4 D. R & J. 221. 
 
 {q) 45 & 46 Vict. c. 75, s. 1 (3), (4). (/) WUUams v. Bailnj, I.. K. 2 K<]. 
 
 (r) 45 & 4(3 Yict. c. 75, s. 1 (2), (3) ; 735 ; Gills v. Ifardhig, I-. K. 5 Ch. 33« ; 
 
 In re Shdiccspcar, 30 Ch. D. 169; and see Evcrsley, Doui. Rcl. 407, 4r^ 
 
 ante, p. 282. '-'t seq.
 
 310 CONSIDERATIO^- 
 
 ■\vill 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 maintenance out of that fund, and in 
 the event of her being compelled Ijy 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 
 Not good estate so as to take it from the husband's creditors (u). In 
 dhors!" " ascertaining the value of the husband'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 creditors, it follows 
 that no compromise of a claim for such alimony could be of itself 
 a valuable consideration binding against existing creditors. A 
 careful examination of all the cases seems to warrant the conclu- 
 But the com- sion that it is the compromise of the suit itself, or the right to 
 
 promise is the . _ . ^ . . . ■• i , . • ,• , in i 
 
 real considera- institute it, whereby the debtor is relieved, not only from the costs, 
 ^'°°' but also from the trouble and scandal attending such a suit, which 
 
 is the real consideration ; as shewing that the provisions of the 
 deed were not the spontaneous act of the husband for his own 
 benefit, but such as he would have been likely to accept, even 
 though unwilling to make any arrangement for the maintenance 
 of his wife (r). 
 
 Reciprocal It is an undecided point whether merely reciprocal covenants by 
 
 husband and wife with each other not to sue for the restitution 
 of conjugal rights would now be deemed a valuable consideration. 
 It is submitted that, having regard to Bcnant v. Wood (»•) and 
 to the Married Women's Property Act, 1882 (.r), such reciprocal 
 covenants would now be held to sujtport a deed against creditors 
 or purchasers. 
 
 Compromises It may be noticed here that it has been decided that an agree- 
 when valid" ^ nicnt by a wife to waive the further prosecution of an imdictment 
 
 (u) Fitzcr V. Fitzer, 2 Atk. 513; (w) 12 Ch. D. G55 ; and see ITaM/taZ/ 
 
 Barnardiston v. Simpson, MS. 1720, v. Marshall, 5 P. D. I'J. 
 
 Appendix No. VII. (r) 45 & 4G Vict. c. 75, s. 1 (2) ; 
 
 (v) But see Ilobhs v. Jlall, 1 (lux, 445 ; and see Lush, II. & W. 391 et scq. ; 
 
 Nunnv. Wilsmore, ST. 11. 521 ; Evcrsley, Eversley, Dom. Rel. 469, 470. 
 Dom. Eel. 479.
 
 IN SEPABATIOX DEEDS. H I I 
 
 against her liuRl)und for an assault in consideratiun of his aUow- 
 ing her an annuity by way of separate maintenance, is an illegal 
 contract, although entered into with the sanction of the Court 
 in which tlie indictment was tried, and that the wife ranuot 
 even come in with other creditors of her husbiuid for arrears 
 of the annuity (//). Ihit in tliis case the earlier one of M worthy 
 V. Bird (.:) does not appear to have been cited. There too an 
 indictment for assault was compromised witli the sanction of tlie 
 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 com- 
 promise of a felony or any puljlic misdemeanour it wouhl be 
 void, but not so in respect to the compromise of a private 
 wrong {a) ; and Sir J. Leach said, " All the authorities concur 
 that the policy of the law does permit the compromise of assaults." 
 
 And Lord St. Leonards, when Lord Cliancellor of Ireland, 
 said {h) that as to the law with respect to compromises, the 
 authorities seem to admit of a distinction ; an agreement in con- 
 sideration of compounding 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 ])roceedings stayed, may not be 
 illecfal. In Copvoch v. Bower (c) the offence, thougli not a felonv. Personal in- 
 
 ® ^^ ^ . . terests may be 
 
 was a misdemeanour of a public nature ; but in every case in compromis'id. 
 which a man has a private personal interest he has a right, if he 
 pleases, to forbear from a prosecution. 
 
 Where the offence is such that the person injured has ihc Wliere a 
 
 perhon has a 
 
 choice between a civil and a criminal remedy, it is not against tlie civil .-nHi a 
 
 .,- „ ,.., , ,•, criminal re- 
 
 policy of the law for the injured person to enter into a com- jj„.j,(. i,^ may 
 promise with regard to the civil proceedings (^0- compromise. 
 
 It may be said that if a deed of separation containing a 
 
 {y) Garth v. Farnshav; Y. & L". 61'J; Keir v. Leenian, i:> I,. .T. Q. V>. 
 
 584. •5.'>9. f^ee Williams v. Jiaijleii, J.. I!. 1 
 
 {z) 2 Sim. & S. 372. H. L. -'10 ; Flower v. t>adUr. 10 Q. V: 1». 
 
 (a) This distinction was allowed by .072. 
 
 Ti. C. Talbot in Johnson v. Ofjilhy, .S 1'. {<■) 4 M. & W. 301. 
 
 W'ms. 279. {<>) Fisher v. Apollnmrif Co.. \. U 
 
 (b) In Westhy v. We^thy, 2 D. & War. 10 Cli. 297.
 
 312 
 
 CONSIDERATION 
 
 Collnsion 
 biitwccii h'. 
 baud and 
 ■\vil'e. 
 
 Agreements 
 for future 
 separation. 
 
 Separation 
 i'roni a mis- 
 tress. 
 
 covenant of indemnity, or any of the other ingredients above 
 mentioned, is good against creditors, it oilers a debtor an easy 
 opportunity of evading the statute and defrauding liis creditors ; 
 but it must be remembered lliat, aUliough the vabie of the con- 
 sideration will not be nicely scrutinized, the question 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 " (c). 
 
 A separation deed executed in consideration of a separation 
 which never took place cannot, after tlie deatli of the husband 
 or wife, be supported as a voluntary settlement (/). 
 
 Contracts entered into with respect to and provisions for pro- 
 spective separation are not only voluntary but illegal and void, 
 whether the deed be post-nuptial or ante-nuptial (</). Even 
 when not open to this objection, 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), unless it be illegal or 
 contrary to public policy (/'). 
 
 It is clear that a separation deed between an unmarried man 
 and a woman with whom he has been cohabiting is per se volun- 
 tary (/). In Uj: ixnic Kadcn (m) a man separated from a woman 
 with whom he had gone through the ceremony of marriage, and 
 executed a separation 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 shotild live together again by mutual 
 consent, the deed sliould be void. The annuity was paid till the 
 
 (e) Fltzer v. Fitzer, 2 Alk. oil, as 
 explained by the M.R. in Ifohhs v. Jfull, 
 1 Cox, 44G. 
 
 (/) Bindlerj v. Malloney, L. TJ. 7 E(]. 
 343. 
 
 (ry) Westmeath v. Westmeath, 1 Dow 
 & C. 529 ; Bindley v. Midloney, L. 1{. 7 
 Eq. 343; Byrne v. Carew, 13 Ir. Eq. 
 Rep. 1-G ; //. v. TT'., 3 K. & J. 382 ; Froc 
 ter V. liohiiison, 15 L. T. (N.8.) 431. 
 
 (A) Marshall v. Button, 8 T. I{. 545 ; 
 Legard v. Johnson, 3 Ves. 352 >St. John 
 V. >SV. John, 11 Ve8. 520; Durand v. 
 
 Durand, 2 Cox, 207 ; Logan v. Birkett, 
 1 :My. &K. 225; ante, p. 301. 
 
 (() Framjjton v. Frampton, 4 Beav. 
 287. 
 
 (A) Hamilton v. Hector, L. R. 13 Eq. 
 511, 8. C. L. R. G Ch. 701. 
 
 (/) Turner v. Vauyhan, 2 Wils. 339 ; 
 Binninyton v. Wallis, 4 13. & Aid. G50 
 Cray v. Booke, Ca. t. Talb. (Eorr. ) 153, 
 and cases there. A deed founded on the 
 consideration of continuing cohabitation is 
 void: Lady Cox's Case, 3 P. W. 338. 
 
 («i) L. R. 9 Ch. G70.
 
 IX SEPARATION DEKDS. Ml] 
 
 man became baiikiu])!. It was hold ihaL llio, jiMvisn was wliully 
 void; and that llie deed must be read as it I he 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 tlial, however, other circumstances 
 may lend a valuable consideration. So ^\•he^' the woman as- 
 serted, and appeared to have a fair jirospect of substantiatinj^, a 
 promise of marriage made to her by a man, an annuity given 
 her by him on discontinuance of cohabitation was upheld as on 
 valuable consideration (n). 
 
 The execution by a husband of a deed of separation already Execution of 
 draNvn up by agreement nuiy be a legal consideration for a ugreed. 
 promise by a third person to pay certain debts and expenses for 
 which the husband was solely liable (o). 
 
 It is a general principle that snl)sequent cohabitation and Sutscqncnt _ 
 reconciliation of husband and wife put an end to all the effects general .•iv..i.ls. 
 of separation ; and, therefore, an agreement made on separation, JieS* """ 
 in general, comes to an end when that separation ends .(p)- 
 Even a verbal agreement to reside together in the same house, 
 and not to cohabit as man and wife, has been held to have the 
 same effect (7). But the question, whether a particular 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 continue to operate whether there be a return to cohabi- 
 tation 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, has been held valid (s) ; 
 
 (^0 Keenan v. Hundlcu, 2 D. J. & S. v. Ahtun, L. K. 10 Kq. o4.J ; but sco 
 283_ jiarnardiston v. Simpson, post, Appendix 
 
 (o) Jones V. Waite, 5 Bing. N. < '. No. VI I. 
 34J (fj) Westnieath v. ^Vestmeath, 5 JIli. 
 
 [l^) Batemaii v. Countess of Boss, I (N.S.) 339, 3(37. ^ 
 
 Dow, per Lord Eldon, 245; Xicol v. (r) Negiis y. Fo,:iter, SO W. R. G71 : 
 
 Nicol, 30 Ch. D. 143, 8. C 31 CIi. D. Xicol v. Xlcol, 30 Ch. 1>. 143, b. C. 31 
 
 per Cotton, L.J., 52G ; Westnieath v. Oh. D. o24. _ 
 
 ^SaHshury, 5 Bli. (N.S.) 339, 3G7 ; (5) Hefo/fr v. JIVA.^/.r, 1 N.". & ("T- 
 
 Hindleyv. Westmecdli, 6 B. & C. 200; 489, S. C 4 De G. M. & (J. "IS?, c"ni. 
 
 l^etrher v. Fletcher, 2 Cox, 99; Rop. racnted on in Xicol v. ^>co, no ( h. 1 .. 
 
 Hu'^b. & W. vol. 2,273 n. ; Ruffles per North, J., 14S.
 
 •^14 COySIDERATION IX SEPAKATIOX DEEDS. 
 
 and where the separation deed provided that if the husband and 
 uife should thereafter agree to live together again such cohalii- 
 tation should in no way alter the trusts thereby created, their 
 subsequent reconciliation for a time ^^•as held not to avoid the 
 deed (0. 
 
 Enforced by A covenant to live apart, not now being contrary to the policy 
 
 jnjunc on. ^^ ^^^^ common law, to which at the Eeformation the Ecclesias- 
 tical Courts became subordinate, may be enforced by injunction 
 against proceedings for restitution of conjugal rights (n). 
 
 (t) Wilson V. JIushett, ?, B. & Ad. 221, 227; JJesant v. Wood, 12 Cb. D. 
 
 743; see Xicol v. A7co/, 30 Cb. D., per 005; and see C'a/n7/ v. Ca/aV^, 8 App. Cas. 
 
 North, J., 148, 149. 421, per Lord Selborne, L.C. 
 
 (u) Bunt V. Hunt, 4 D. F. & J.
 
 CHAPTER III. 
 
 VOLUNTARY COXVEYANCES MADE GOOD BY CO.NSIDEP.ATION'S 
 ARISING SUBSEQUENTLY. 
 
 A DEED voluntary at the time of its execution may afterwards ^■ollllll.^^y 
 become valuable by subsequent acts which by matter ex post good b^-nmtter 
 facto will sometimes make good a settlement which in its creation '^^ ^°^' "*^'°' 
 was not good (r). 
 
 ]jut, of course, there is no question of so making valid a deed 
 against either creditors or purchasers unless the act relied on to 
 give the deed validity is done without notice of or privity in the 
 fraud of the particular voluntary deed which the act is to be 
 taken to confirm. 
 
 It was said by Lord Eldon, in Johnson v. Legnrd (ic), " It. 
 cannot l>c denied with respect to persons who make voluntary 
 settlements, and those who are called volunteers, 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 
 performance of a contract to sell land previously voluntarily 
 settled by him (x). 
 
 (r) Price v. tSamh, Gouldsb. 118; 1 East, 92, O'j ; Mcggison v. Foster, '_' 
 
 Prodgers v. Langliam, Sid. 133; CJilb. \. ScC. Ch. 'i'i\j; ^hlrtlJn x. McXamara, 
 
 Lex r. 280; Smartle v. WUIuinifi, 3 4 Dru. & War. 411, 42y ; Clarke \. U'il- 
 
 Lev. 387, cited as Andrew ]S!ew]Jort's lott, L. R. 7 Ex. 313. See also White 
 
 Case, Skin. 423, Bacou Abr. tit. Fraud ; v. Garden, 10 C. B. '.tl9, and the coiii- 
 
 Kirh V. Clarlc, Prec. Cli. 275, TJilb. Lex ir.ciits tliereon in Billiter v. Young, <; 
 
 P. 251, S. C. as Ileisier v. Clarke, 2 Eq. E. &; B. 25; and JJurl of Aldborough v. 
 
 Ca. Ab. 4G; Ladg Burg's Case, Y. Mo. Trye, 7 CI. & F. 436, 403; J add v. 
 
 002 ; East India Co. v. Clavel, Gilb. Eq. Green, 45 L. .1. (X.S.) Ch. 111. 
 E. 37, Prec. Ch. 377 ; Porter v. Clinton, [ir) T. & Pi. 204. 
 
 Comh.222; Tanner \. Byne, I 'i^ixm. \C)(,; (.r) Peters \. 2^'icolls, L. IJ. 11 E.). 
 
 Tarleton v. Liddell, 17 Q. B. 39U, 421 ; 391 ; Clarke v. Willott, L. U. 7 Ex. 317 ; 
 
 Doe V. Boutlcdge, Cowp. 705 ; Knatchhull Fry, Sp. Pf. 2nd ed. ss. 387, 870 ; and 8C« 
 
 V. Kissane, 5 Dow, 389, 411; JIart v. Jn re Marsh and Earl Granville, 24 
 
 Middlehurst, 3 Atk. 377; Dauheny v. Ch. D. 11. 
 Cochhurn, 1 Mer. 038; Parry. EUanon,
 
 31 G EX rOST FACTO 
 
 Prodgersx. The general doctrine was laid down in the leadin<^ case of 
 
 jMngham. -n i -r t / \ 
 
 Frodf/ers v. Langhnm {y), decided under 27 Eliz. c. 4, M'liich Lord 
 Eldon said had long been considered good law (z). 
 
 Ii was there agi-eed per Curiam that a deed although void in 
 its creation, and voidable Ijy 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 
 consideration, the feofiee of the first feoffee shall hold the land, 
 and not ihe feoffee of the first feoffor. For, although the estate 
 of tlie first feoffee was in its creation covinous and therefore 
 voidable, yet when he enfeoffs one on valuable consideration it 
 shall be preferred before the last {a). 
 
 Clarke v. Tliis case has l)een followed with aiiproval in the case of Clarle 
 
 M illott. , 
 
 V. Willott (o), decided under 27 Eliz. c, 4, where Cleasby, 13., 
 said : " It must be borne in mind that a conveyance, though \'olun- 
 tary upon the face of it, and at first void as against a purchaser 
 for consideration, may yet become valid by force of subsequent 
 events. This M-as held in Frodf/rrs v. Laiujliam (c), a case which 
 Lord Eldon said in Geor[/e v. Jfilhanke (d) had long been con- 
 sidered 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^' {f). 
 
 The principle The principle to Ite deduced from these cases seems to be this: 
 and the rea- 
 
 When a person has l)ona fide, on the faith of a voluntary gift, 
 contracted a marriage, paid purchase-money, or made an advance, 
 the title of that person, although derived from and passing through 
 a voluntary deed, is to be preferred to the claims of creditors of, 
 or subsequent purchasers from, the original donor. 
 
 As to mere voluntary conveyances, tlie reason of this appears 
 to be, that a voluntary deed is always good between the 
 
 (.»/) 1 Sid. 13.3. (rO See also lioddy v. WllUctms, 3 J. 
 
 {z) In George v. M'dlanhe, Ves. 193 ; & Lat. 1. 
 and Lord Kenyon, in Purr v. Eliason, (h) L. R. 7 Ex. 317. 
 
 1 East, 92, called it " a very leading (c) 1 Sid. 133. 
 
 .inlliority" : darl-ev. Willott, L. R, 7 Ex. \d) 9 Ves. 190. 
 
 317. \e) 1 East, 92. 
 
 (/) T. & R. 294. 
 
 son of it.
 
 CONSIDERATIONS. 317 
 
 parties {;/), and is liable to become void only by lieing actually 
 brought into antagonism with tlie claims of creditors or subse- 
 quent purchasers, and then only so far as it interferes with their 
 rights (h). 
 
 A voluntary deed, therefore, until stops have been taken to Voluntary 
 impeach it by creditors or purchasers, is not void, but voidable, olily v^JiJublc. 
 A deed which is voidable can 1)C affected by subsequent acts in 
 one of two ways ; either to he confirmed, and so made no longer 
 voidable, or, on the other hand, to be made actually void. So a 
 bona tide sale, &c., for value, before any procceilings have been 
 taken to set it aside, acts as a confirmation of the voluntary 
 estate, which before was voidable, by supplying the only thing 
 which, in the creation, was wanting — viz., a valuable consideration ; 
 and a valuable consideration given for a title good against all the 
 world, except certain persons, and only \oidablc by them on 
 account of the want of consideration (i). 
 
 In such a case the person who pays a consideration to the Tonsidoration 
 voluntary grantee may constructively be held to be in the same 
 situation as if he or she had, in the first instance, paid it to the 
 original donor (k) ; the consideration is made to relate back to 
 the first instrument. An illustration of this may be drawn from 
 the case of Low v. jirGill (/), 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, by 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 Ijy Mrs. I. made good pro tanto by a subsequent 
 bona fide charge. 
 
 This principle has often l;)cen applied in cases where a voluutiiry 
 
 (ij) Per Anderson, J., in L'jiton v. the power, cannot set up an invalid 
 
 Basset, Cro. Eliz. 4 1'j ; post, pt. v. cb. iv. appointment in favour of sucli pnr<lia.scr. 
 
 (A) Ante, pp. G8, 208 ; post, p. 325 ; iSug. Pow. Btli ed. 512, r.16-7 : FarwcH, 
 
 pt. vi. ch. i. 349. 
 
 (i) See Daubeyujv. Coclcburn, 1 Mer. (/.•) Per Sir "W. Grant, 1 Mcr. 038; 
 
 626, 638. Payment of a valuable con- Morevood v. South I'urks, dc, Co., 
 
 sidcration by a person not having the 3 II. & N. 798. 
 
 legal estate, and not being an object of (/) 12 "\V. Pi. S2o.
 
 £X POST FACTO 
 
 Where volim- conveyance Las supplied tlie sole or the principal inducement for 
 
 tarv convcv- 
 
 a marnacje. 
 
 .ince induced 
 ujurriaije. 
 
 Must voiun- 
 tiiry convey- 
 ance be sole 
 inducement? 
 
 Prodfjers v. 
 Langham. 
 
 To uphold sucli conveyance by the ex post facto consideration 
 of marriage against creditors or subsequent purchasers, it is not 
 necessary to shew by direct or positive proof that such convey- 
 ance did actually form an inducement to the marriage (m). 
 
 It has been a doubtful question whether the voluntary convey- 
 ance must be the sole inducement on the faith of which the 
 marriage takes place. It is conceived that the result of the cases 
 goes to shew that such conveyance will be supj^orted if it be 
 proved to be the 2^rinci2Kd inducement to sucli marriage. 
 
 A certain relationship must, however, be established between 
 the voidable act and that by which it is to be made valuable. 
 Thus, if a man seised in fee make a voluntarv deed settlino- his 
 estate upon himself for life, M'ith remainder to his first and other 
 sons in tail, though he afterwards marries and has a son he may 
 subsequently sell and convey the lands to a bona fide purchaser, 
 as to whom, by all the authorities, tlic settlement will be void 
 within the statute 27 Eliz. c. 4 (>?), if and because there was 
 nothing to shew that the marriage M'as iuduced by the settlement. 
 
 In the early case of Prodgers v. Lmujham (o) the value of 
 marriage to give ex post facto validity to a voluntary settlement 
 was laid down by the Court. 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 tiic Court that the conveyance to the daughter 
 before marriage was a voluntary conveyance void against pur- 
 cliascrs ; but that, althougli it was void in its creation as to 
 purchasers, yet, when the marriage took cfleet, " the first settle- 
 
 (m) Guardian Assuranrr Cn. v. VSr. 
 count Arovmorc, L. \\- ''i Ir. Iv|. ?,'.)C, ; 
 infra, p. 320. 
 
 (n') Per Lord Campbell in Tarleton v. 
 LiddeU, 17 Q. IJ. 421. 
 {o) 1 Sid. i:!3, decided under 27 Eliz. c. 4.
 
 CONSIDERATIONS . 3 j 9 
 
 nieut 110 longer rcniaias voluntary as it was in its creation, but is 
 on valuable consideration, inasmuch as the marriage is an advance- 
 ment to the daughter, and he who married her was induced lo do 
 so by reason of that provision." 
 
 In Kirk v. Clarh {/>} a father was tenant for life of copyhold /uV/; v. 
 lands, with remainder to his wife for life, tlic reversion to himself ^'^''** 
 in fee ; and, merely to lessen tlio inie in case of the copyhold 
 descending on liis son, he made a surrender of the reversion to 
 his eldest son in tail, remainder 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 cliiefly 
 induced the friends of the lady to consent to the match, althougli 
 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, it being regarded as the principal 
 inducement thereto, it now became valuable " (y). 
 
 In the East India Company v. Clarh (r), decided under 
 13 Eliz. c. 5, it was said that if the settlement were voluntary in 
 its creation, yet, being the motive and inducement to J. S. to 
 marry her, it had now become valuable (r). 
 
 In Brown v. Carter (s) Sir H. V. Arden said that Frodjcrs v, Browne 
 Langham (t) had been relied on to shew that circumstances ex ^"'^''^''• 
 post facto may make good a settlement that might have been 
 impeached ; that the meaning of it is that, though the estate does 
 not appear to have been settled on the marriage, it may lie 
 intended to be an inducement to consent to the marriage ; and 
 then the father shall not afterwards set up a subsequent convey- 
 ance 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 lie said : " It dues not appear 
 that it was regarded as the principal inducemenc ; but it might 
 
 (;}) Tree. C'h. 27.'), decided under commented on \>y Lord Eldon in Gcorijr 
 
 27 Eliz. c. 4, S. C. aslleissier v. Clarice, v. Jlilbankc, 9 Vcs. 103; and see rai/iir 
 
 2 Eq. Ca. Ab. 46. v. Mortimer, 4 D. G. & J. 447. 
 
 {q) But see Sir Pi. V. Ardeu's com- i-s) .5Ves. R77, decided under 27 Eliz. 
 
 meuts in Brown v. Carter, o Yes. 878. c. 4. 
 
 (r) Free. Ch. 377, Gilb. Eq. Rep. 37, (/) 1 SiJ. 1J3
 
 320 EX POST FACTO 
 
 be so. The lady had a right, the children have a right, to have 
 it considered that he had the estate Avhich he appeared to have ; 
 and I should do gross injustice in taking away that benefit." 
 
 In the recent case of Guardian Assurance Cowpany v. Viscount 
 Avonmorc (a), in Ireland, this question was carefully considered. 
 
 The question in that case was whether a deed voluntary 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 prcsump- It has also been a doubtful question whether there is or is not 
 
 tion of indiice- 
 
 nient ncccs- in sucli cases a presumption that, in the absence 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 Brovn, v. Carter (r) Sir K. 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 presumed they did act upon it " (r). 
 
 This case was followed in Boddij v. Williams (u:) with 
 approval ; and Lord St. Leonards seems to have upheld this 
 view (:/■). 
 
 In Tarlcton v. Liddcll (//), however, Lord Cam.pbell seems to 
 have expressed a contrary opinion. 
 
 The case of Broirn v. Carter (/•), moreover, as was explained 
 
 ^m) L. R. Ir. r, Eq. 301. {x) Sug. V. .^ T'. 1 1th ed. 72(i. 
 
 [v) 5 Vcs. K77. (y) 17 0. i{. -i-.'l ; and sec Gecrric v. 
 
 {ir) 3 .1. & I,. 17. Milbanhe, 'J Vcs. 193.
 
 CONSIDERATIONS. 321 
 
 by Lord Uoiuilly in Iloghton v. IloglUon {z) does not establish tlic 
 proposition that, in tlic 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 Bruum \. Carta- (a) 
 was made in 17G8; tlie limitations of it gave interests to any 
 children the settlor might have, with remainders over. In 1771) 
 he married. In 1799 he conveyed the estate to the plaintills, 
 who hied their bill to set aside the settlement of 1708. The 
 decision, therefore, as is clear from the concluding words of the 
 judgment, only shews that, after a lapse of twenty years and h^ss 
 of evidence, everything shall be presumed against the person who 
 has delayed to bring the question before the Court for that period 
 of time. 
 
 In the recent case in Ireland of Guardian Assurance Company v. 
 Viscount Avonmorc (h), in wliich Lord Eomilly's remarks in Hoghton 
 v. Hoghton (z) were cited with approval, it was laid down that 
 " there is no presumption, 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 con- 
 cerned, 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 (r) holds out inducements to another to 
 celebrate a marriage, and holds them out deliberately and plainly, 
 and the party consents and celebrates the marriage in conserpience 
 of them, if he had good reason to expect that it was intended that 
 he should have the l)cnerit 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 make a Snmc prin- 
 
 ^ , ciplc applu* 
 
 settlement originally voluntary good by a subsequent sale, or ,„ gubi^-qutut 
 mortgage, or other valuable consideration, against purchasers. mortgage. 
 
 (,-) 15 Beav. 278, 310. 
 (a) 5 Ves. 877. W I'er Lord LynJhurst in Ilamnurthn 
 
 ( L. E. 6 Jr. Eq. 397. v. Dc Bid, 12 CI. & V. 7S, 70. J-'cc iilso 
 
 (c) Croftony. Ornish/, 2 Sell. & Lcf. Mauusdl v. White, 4 H. I- C lU3y ; 
 583. P"s^ I'f- i^- cli- V. 
 
 Y
 
 322 EX POST FACTO 
 
 Subsequent " There is no cliflerence," said Lord Ekloii in George v. MU- 
 
 lankc (t), " between a voluntary settlement made good by a sub- 
 sequent mamage, 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 tlie time " the voluntary conveyance was 
 made. The consideration paid by the second grantee relates back 
 so as to confirm his title, altliough it passes through a voluntary 
 instrument which thus becomes an authentic channel through 
 which the title may be conveyed ; and the acts by which the con- 
 veyance is made valid must be completed before any steps are 
 taken to set it aside ; for tlie voluntary deed, as soon as it 
 becomes opposed to the creditors of or purchasers from the author 
 of it, becomes no longer only voidable, but, as to them, void (/). 
 
 Feoffments to This doctrine is as old as the statute of Marlebridge, 52 Hen. S, 
 wardship. c. G, which was intended to make void feoffments by tenants to 
 their heirs, when under age, of their heritage, to defraud the lords 
 of the fee of their wardships ; 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 feoffment 
 in fee bona fide and then the tenant dietli, 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, 
 because the lord, hy the death of his tenant, was once entitled to 
 his action " {(j). 
 
 f 'onsideration A Consideration ex post facto may also be supplied in any case, 
 
 when grantee • i. i 
 
 has altered as agamst a Subsequent ;purchaser, where the donor of a voluntary 
 
 faiirofgrnorSift or the settlor of a voluntary settlement has, after that gift or 
 
 settlement. settlement, permitted the donee or the grantee to materially alter 
 
 his position in consequence of such gift or settlement. 
 
 lu Dillioyn v. Llevxllyn (h) a father by a written memorandum 
 
 (c) Ves. 195; and sec ^fl/ers v. (/) Sec also O'Connor v. Bernard, 
 
 Duke ofLeinster, 7 Ir. Eq. Kep. 146, 1G6; 2 Jones (Ir. Ecp.) C54. 
 ante, p. 184. (g) 2 Co. Inst. 111-7. 
 
 (h) 4 l)c C. V. &..]. r,l7.
 
 CONSIDERATIONS. 
 
 323 
 
 mill'' a 
 
 signed by liim gave liis sou laud fur the lairpose of huilc 
 house there as a residence, and at the same time put liiiix i.i 
 possession of it. The son built a house at an expense of £li,000, 
 with the knowledge and approval of his fath.-r, and lived there to' 
 his father's deatli. The father by his will devised the jn-operty 
 to his wife for life, with remainder to hi.s son for life, with 
 remainder to his first and other sons. 
 
 Lord Westbury, L.C., held that the subsequent expenditure by 
 the son on the faith of the memorandum, Avith the approval of the 
 father, supplied a voluntary consideration originally wanting, and 
 created a binding obligation ; and declared the son the owner in 
 fee of the estate comprised in the memorandum. The princii)le 
 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, moving to tlie voluntary grantee for the 
 action he takes upon the faith of it (i). 
 
 The doctrine of allowing subsequent valuable consideration to Doctrine 
 set up a voluntary deed is well within tlie principle of decision on iL^i'.'.^rVf" 
 the statute 27 Eliz. c. 4. i>urchu$cn. 
 
 There seems to be some diOiculty, however, in the ai)plication Docs deed 
 of this principle to cases where the rights of creditors are con- agSt SSl 
 cerned under 13 Eliz. c. 5 ; and where the question is whether the 'm' ^^' ^'?!"' 
 
 ^ nblc coii8i(lcni- 
 
 settlement originally voluntary has been made valuable by a ''"" ^* l^"^ 
 
 , 11,1 facto from 
 
 subsequent 7?io?if?/ payment or other valuable consideration (except grantee? 
 marriage) moving from the grantee. 
 
 This point does not appear to have ever been expressly decided. 
 The question only arises in cases where the voluntary grantee lias 
 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 tpiestion wuuld 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 what was then a fraud at common 
 
 (i) See In re Barler's Edate, 44 L. J. (N.S.) Ch. 490, per Jessel, M.Ii., decided en 
 27 Eliz. c. 4 ; ante, p. 280. 
 
 V 2
 
 324 EX POST FACTO 
 
 law (/) ; but the statute 27 Eliz. c. i, merely protects a purchaser 
 against a prior voluntary settlement of the same property ; and, as it 
 were, creates a statutory fraud, which may be nu real fraud at all. 
 
 Time at There is also a difference of some consequence as to the time 
 
 Tfcrcditors ^^ wliicli the rights of creditors and tliose of purchasers arise. 
 
 and pur- 
 chasers arise, xiie rights of creditors in general (/) to avoid a voluntary 
 
 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 favour of the voluntary grantee. 
 
 The right of a purchaser, however, to avoid a voluntary settle- 
 ment of real estate made by the settlor accrues of course only at 
 the date of his purchase. Till there is a bona fide purchaser in 
 existence, the voluntary grantee can by a valuable ex j^ost facto 
 consideration make his title unimpeachable. 
 
 It is conceived, however, that the true view is that this prin- 
 ciple 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 marriage) 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 consideration, as it 
 were, which moves to the voluntary grantee. There also does not 
 appear to be any real difference in this respect between a con- 
 veyance to defraud a subsequent creditor and a conveyance to 
 defraud a subsequent purchaser. 
 
 Although the cases of Dilbnjn v. Lleu'cllyn (m) and /;i re 
 Barker's Estate (n) were decided witli reference to 27 Eliz. c. 4, 
 tlie principles there laid down by Lord Westbury, L.C., and Sir 
 G. Jessel, M.li., seem to apply to similar cases under 13 Eliz. c. 5. 
 
 (A) Ante, pp. ?>, 5, 19.3; sec Battenhee (J) Ante, pp. 13-1.5, 35, 67. 
 
 V. Farrington, 1 Sw, 113. (/") "i ^^ (^'- !''• & '^' iil" ; «ntc, p. 322. 
 
 (») 44 L. J. (N.S.) Ch. 487 ; ante, p. 280.
 
 CONSIDERATIONS. <{ 2 ') 
 
 In considering this (niestion, it is of great importance to ktei. 
 carefully in view the true nature of the rights of "creditors ami 
 others" under lo Eli/, c. ■",, and of subse(iueiit purclia.scrs under 
 27 Eliz. c. I. 
 
 A deed vvliieh, by virtue of the statute l:) Kliz. c. .",, is " utterly c.nvev 
 
 ancei 
 
 void" o/////as lo "creditors and others" so soon as it is executed, "..."' , 
 is nevertlieless a perfectly good deed as between the; i»arties, and »'^'« <"'ly ; nn.I 
 
 n 1 1 • 1 , , only iiH iipiiiiht 
 
 as aganist all jiersons who clann tlirougii tlie settlor (o). It is crediu.n. or 
 therefore in leality a deed which is voidable only, and not void {ji). ''"'^*' ""**^^'^' 
 Till made void by " creditors and others," it is a valid deed, and 
 one by virtue of wliieli tlie legal estate vests in ilie voluntary 
 grantee, subject to its being divested. 
 
 So a deed which is fraudulent uiuler 27 Eliz. c. 4, is oidy 
 voidable, and not void ; and, till avoided by a .sale to a Ijona tid'j 
 purchaser, is a perfectly good deed as against all the world. 
 Although the fraudulent conveyance is said to be " utterly Noid," 
 against the parties aggrieved, in l)oth statutes, it is not to be 
 implied that it was an al)Soluto nullity \Yhen originally executed. 
 
 The right of the person defraiulcd under these statutes to elect irow riglit to 
 to avoid {q) a deed as fraudulent may be lost in either of the ||',|.'|.'n,!^"'|^*' 
 following ways : — *^'''" 
 
 First, it may be lost by the deed ha\ing l)Ccoine for value by a 
 consideration ex post facto Ijefore any steps are taken by tliat 
 person to impeach it (>•)• 
 
 Secondly, the voluntary grantee may have divested himself of 
 the property by a bona fide transfer of it for value to a bona fide 
 purchaser for value without notice of fraud (/•)• 
 
 Such a purchaser from the voluntary grantee acquires under 
 these statutes (s) an unimpeachable title, which cannot be avoi.led 
 either by ''' creditors and others," or by a purchaser. 
 
 {(,) Ante, pp. SK),.*]!?; post, pt.v.ch.iv. (r) Ante, pp. 315 ct seq. 
 
 (») Bac. Abr. tit. Void aud Voidable ; {,s) 13 Eliz. c. ;'>, 8. G : -'7 Eliz. c. 4, s. 4 : 
 
 Bump. Fr. Conv. (Amer.), 2nd ed. 481- ante, pp. 80,81, 83, 188; Ston-, Eq. .lur. 
 
 482; and see Sterensoit v. yeicnham, 12th ed. ss. 434-430; Bun.p. It. ( onv. 
 
 15 C. B. 303, per Parke, B. (Amer.), 2nd ed. 430, 451, 480. 481 : and 
 
 {q) Morewood v. Houth Yorkshire Co. , see the judgments in A mh rcon v. /{ob<rl», 
 
 3 H. & W. 798, 801. 18 Johns. 513 (Amer.}.
 
 32 G EX POST FACTO 
 
 The words of the sections which protect such purchaser 
 " for good consideration and loud 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 cither 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 corre- 
 sponding sections of these two statutes, they would receive the 
 same construction. 
 
 Same con- This is, moreover, the settled construction which these sections 
 
 Amerioa.'"' '^^^'^ 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 (w). 
 
 When does When a voluntary deed is made a deed for value by matter ex 
 
 valid owino- to post facto, a question arises, from what period is that deed to be 
 :oS',±?<i'=«»'='i'' deed for value? 
 
 It has been held in 0' Donovan v. Rogers (v), that such considera- 
 tion does not relate back to the time of execution of the original 
 deed so as to defeat an intermediate deed for value ; but that 
 the deed became valid as against a creditor or purchaser from the 
 date of such matter and no sooner. 
 
 Between two As between two voluntary conveyances, that which is prior in 
 
 voluntary con- •■, -p t ^ n i / \ n^^ •, ^ ■, ■ ■ ■, 
 
 veyancesof time Will prevail, if Dona hae {^v). Ihe ground of this is tliat 
 p^ioritVofdat'e '"although such conveyance is bad as against a creditor or a sub- 
 confers title, sequent purchaser, it is good as between the parties to it (.'.■) ; 
 and therefore the first voluntary grantee holds the property 
 against a subsequent grantee from the same grantor, who had no 
 estate left in him to convey to that second voluntary grantee (ij). 
 It is only by virtue of the statutes that the voluntary convey- 
 
 (<) 1.3Eliz. c. 5, 8. G; 27 Eiiz. c, 4, 8. 4. (ic) C'laveruig v. Clavering, 2 Vern. 
 
 («) Bump. Fr. Conv. (Amer.), 2nd ed. 473; George v. Milhanhe, 9 Ves. 195; 
 
 480-482 ; Anderson v. liohertg, 18 Johns. Doe v. littgham, 17 Q. B. 733 ; Stor.v, 
 
 513. Eq. Jur. 12th ed. s, 433; ante, pp. 221, 
 
 {v) 7 Ir. Ch. Rep. 1, 496; post, 222. 
 p. 328; and see Slevenson v. Neunham, (x) Ante, p. 325; Story, Eq. Jur. 12th 
 
 15 C. B. 297. ed. e. 425. 
 
 (y) Doe V. Busham, 17 Q. B. 733.
 
 CONSIDERATIONS. 327 
 
 ance is liable to lie made void as against creditors, or to l.c 
 defeated by a eonveyance to a su1)sequent purchaser (::). 
 
 This principle, that, as between voluntary conveyances of the 
 same property from the same grantor, priority of date confei-s tlio 
 
 title to the property, applies to tlic followiu^j two questions: — 
 
 The first is, Wliat are the respective rights of two subsequent TiKhts of two 
 purchasers for value of the same property from two voluntary JlllTimlcrli^ 
 grantees holdincj from the same "rantor ? '■■".'" '"" 
 
 o fs o vdunlHr)- 
 
 mi 1 • TT71 ■ 1 • • 1 /. 1 K^'l't'C-H. 
 
 iJie secontl is, vVliat aie the respective riL^hts of a subsequent i;i„i,,„ „f 
 purchaser for value of proi)erty from a voluntary m-antee. and '•"•'^'•'i»<iit 
 
 ^ i- i ^ JO' t.iinliaHr 
 
 another voluntary grantee of that property holding fi«im the i"r<'in a volun- 
 same grantor ? „„,! „„„t,„.r 
 
 voluntary 
 According to the priiici})le laid down in Doc v. liusham (a), grantci', 
 
 overruling the Irish case of Moffdt v. Wldttal-cr (h), when a 
 
 settlor has parted with his whole estate in favour of a voluntary 
 
 grantee, it is conceived that, as he has no estate left in him, any 
 
 subsequent voluntary conveyance l)y him of the same proper! }• i'^ 
 
 a nullity. If this be so, it follows that any dealing witli such 
 
 subsequent voluntary conveyance is also a nullity. 
 
 The question, then, in these two cases seems to depend 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 cannot defeat a prior voluntary settlement (c), or a pur- 
 chaser from that prior vohinlary 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, made another convey- 
 ance to a nephew for his advancement, and the nephew sold to a 
 purchaser for value, it was held thai tlic ].urchaser could not 
 avoid the first voluntary grant ('/). 
 
 (z) Dolphin V. Ai/hraul, T. E. 4 IT. L. fcc In re M'Donafjh'i Estate, H T.. H. 
 
 499; Bosher v. WilUam.«, L. 11. 20 Eq. Ir. 408. 
 
 218 ; ante, pp. G8, 208, 325. i'i) />«<'/ J^"r(f'o ('«''> f-^^^' ^f- ' 
 
 (a) 17 Q B TS'' 7"/5 .int^ see <"'<'>•/.• v. Butland, Lano, ll.l; 
 
 (6) 1 Lang.'& Town. HI. E'lcn v. ChallhaU, Sir T. Knvn,. 2.'i ; 
 
 (c) Sug. \. & P. lJ;h c'\ 714; aiul Com. Dig. lu. Cjviii, D. 4, ult.
 
 32 S EX POST FACTO 
 
 Doesparcliaser It has also been questioned whether a purchaser for vahie 
 
 from fjriintee 
 
 prevail over froni a voUmtary grantee can prevail over a subsequent purchaser 
 one^rom" ^^r valuc froui the original grantor by reason of the title of such 
 grantor? ^pg^. purchaser for value relating back to the time of the original 
 voluntary settlement, so as to prevail over any intermediate pur- 
 chaser for value. 
 
 This was discussed in Ireland under the Act 10 Car. 1, sess. 
 2, c. 3, which corresponds to 27 Eliz. c. •!■, in the case of 
 G'Donovmi v. Rogers (c). 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 M-as 
 conveyed to trustees upon the trusts of her marriage settlement ; 
 and the share of another daughter was settled 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. Tlie 
 ground of this was that it would defeat the whole policy of the 
 Act if a subsequent purchaser could so set up a voluntary settle- 
 ment 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 purchasers for value was the first 
 in point of time ? As against a purchaser, the voluntary settle- 
 ment is a nullity, so that a purchaser from a volunteer can only 
 defeat a purchaser from the original grantor if his purchase 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 e^'en a fraudulent conveyance which 
 was made previously to the voluntary grant {g). 
 
 In America the same principle of priority of date applies in 
 each of these tliree cases. It has long been there regarded as 
 settled law that the first purcliaser for value, whether he takes 
 
 (e) 7 Ir. rii. Rep. 1, 490. {y) Cleric v. Rutland, Lane, 113 ; Kob. 
 
 (J) '2 yir "Wm. Bl. 1U19 ; Kob. Conv. 497. Conv. 382-3 ; ante, p. 238.
 
 CONSIDERATIONS. 30 9 
 
 the conveyance from llie voluntary ^rvantor or In.in ih,. voluntary 
 grantee, will liavo the jireference. So, too, as between two vdlun- 
 lary oranteos, he who has the first conveyanci! ]m;vails (//). 
 
 But where (i) the second conveyance l»y the settlor was ex- Second pr«nt 
 pressed to be made in consideration of a sum of money (which, "TrTaluc' 
 however, was never paid), and the .grantee under it sold to a 
 purchaser for value withcut notice thai the second conveyance 
 was not a bona fide sale, it was decided that the first voluntary 
 settlement was void against the bonfi fide purchaser, 
 
 AVhere the first conveyance by the original settlor is really Krau.l, nlitcr. 
 fraudulent or fraudulently kept on foot (/:), it seems that a bona 
 fide purchaser from his heir or devisee will avoid it (/). 
 
 It seems that a deed executed by a debtor for the benefit of Crciliior*' 
 his creditors, though voluntary and revocalile at its execution, ^^ "' 
 because none of the creditors were parties or. ])rivies to it, may 
 become valid and valuable by the way in which it is subsequently 
 nsed, as by being communicated to or executed by creditors, and 
 by their having upon the faith of it refrained from enforcing 
 their remedies against the del)tor (///)• 
 
 A conveyance which is at tlie time of its execution supported Failure of co:. 
 by an adequate valuable consideration is not liable, nnder the fuattcr'ex i'i.8t 
 statute of 27 Eliz. c. 4, to be defeated by a subsequent convey- ^"^1" 7" ""^ 
 
 ' J 1 J ninkc deed 
 
 ance for value of the same property merely because the considera- voluntury. 
 tion has, since the execution of the conveyance, failed by mattar 
 ex post facto. This principle was laid down in Par/d v. Far/d (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 indemnity, originally for 
 value, was executed by a minor, and was avoided by him after a 
 lapse of ten years on the grounil of infancy, though a perfectly 
 honest transaction. It was held that the deed Avas none the less 
 
 (A) See Anderson y. Jioherts, m.Tohns. (/) BurrcVs Case, G Rep. 72 a; IF«r- 
 
 (Amer.) 513; Story, Eq. Jur. 12th cJ. hurton \. Lovelaml, \^ WW. {'S.'!>.) \,'i\. 
 
 6s. 434-43G. ('") ''^<-ton v. Wootlg<tU', 2 My. & K. 
 
 (/) Doe\. Martyr, 1 Bos. & P. X. W. 402; Smith \: Hurst, lU Hare, 30; J».iit, 
 
 33.) V. & r. 5th ed. 'JOl ; and see post, p. 3'.»3 
 
 (k) Su£?. Y. & P. 1-llh cd. 713; Dart, and pt. v. ch. iv., as to subsequent con- 
 
 V. & P. 5th ed. 902. sidcration for voluntary agreements. 
 (fi) 9 L. R. Ir. 128, 142 ; Tarleton v. LiddcU, 7 Q. 13. 414, 421.
 
 330 EX POST FACTO CONSIDERATIONS. 
 
 for value because the consideration was made void by mat lor ex 
 post facto. So far as regarded tlie consideration necessary to 
 support a transaction, its validity was to be judged of by the state 
 of circumstances 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 conveyance 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. 
 
 (o) Fry, Sp. Ff. 2ml cd. 19C, 107 ; ante, p. 2G8.
 
 CHAPTER IV. 
 
 THE NATUllE AND EXTENT OF THE CONSIDERATION 01" MAKHIAOE. 
 
 Marriage lias in all a<?cs and countries been rej,%arai-(l, fr.,ni a le^al Mnrriagc ;«« 
 point of view, more or less as a civil contract, mutually entered into ""' '^•""™*-*- 
 by a man and a woman, according to the solenniities for the time 
 being required by the laws of the country to which they belong (p). 
 The religious rites and observances which have generally accom- 
 panied 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 marriage is Canon law. 
 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 no other T,aw ircnts ii 
 light than as a civil contract .... and taking it in this light the ir„cts. 
 law treats it as it does all other contracts, allowing it to be good 
 and valid in all cases 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 excep- 
 tions, the ordinary principles which attach to other contracts (s). 
 
 It is a contract of a peculiar kind, which is entered into " with a Nnturc of the 
 view not only to the benefit of the parties themselves, but to the 
 benefit of third parties, to the benefit of their common offspring, 
 and to the moral order of civil society " (/). 
 
 It also partakes of the nature of a vow, which, though entered into 
 
 Qj) See Everslev, Dom. Eel. pp. 4 et seq. (/•) 1 Bl. Com. •21st ed., 433. 
 
 (r^) Sbelford, l\Iar. & D. 17. As to the (s) 2 Sicpli. Com. 8th ed., 23S : 1 
 
 difl'erence in England before and since tlie Broom, Com. 523 ; Dalrymplc v. Ihd- 
 
 Eeformation, sec Hunt v. Hunt, 4 D. F. rymplc, 2 Ilagg. Con. 54, 02. 
 & .T. 221, 227. (0 Shelbrd, Jlar. & D. 3.
 
 332 THE NATURE OF THE 
 
 voluntarily, cannot be dissolved like other contracts by the mutual 
 consent of the parties. 
 
 For these reasons, and with the view of enabling persons at this 
 starting-point of a new family to enter into arrangements and settle- 
 ments of property not to be easily overturned, the law gives to any 
 contracts w^ith regard to property into which the intending husband 
 or wife or their friends on their behalf may enter at the time, the 
 A'.ihuille coil- weight and security of a valuable consideration, and makes them 
 binding, not only against the parties themselves, but against all 
 other persons, to the same extent as if the settlement liad been a 
 conveyance made in consideration of the full value paid (u). 
 
 Bv the civil And the civil law allowed the same privileges to marriage 
 
 '''"'■ portions as to other alienations on valuable consideration, and 
 
 supported them in tlie hands of those wlio received without notice 
 
 of the fraud (r). 
 
 Aiarriage the The consideration of marriage, said Lord Hardwicke, is " the 
 sydcration ' ^cst Consideration that can be " (w). It is the highest known to 
 
 known to our ^j^^ j^^^, ^.^.^^ ^^^j ^^^^ ^^.|jj^.]^ j,. -^ ^|^g ^^^y^^^ ^^ ^j^^ ^^^^, ^^^ ^-^.^ 
 
 paramount force to. 
 
 Unless the marriage itself lie a mere fraudulent contrivance 
 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 lionest mairiage. Such a settlement will he upheld notwitli- 
 standing the embarrassed circumstances of the husband at its date, 
 and even where the wife iias contracted the marriage and 
 obtained the settlement with a full knowledge of the husband's 
 embarrassments (y). So it is only for very gross fraud, as when 
 the man-iage itself is a mere fraudulent device to defeat creditors, 
 
 (u) Assahji V. iJ/onncr«, Dyer, 235 a; (i-) Domat, book 2, tit. 10, see. 1, 
 
 Doufjlasee v. Ward, 1 Ch. Ca. i)9 ; par. 11. 
 
 Wheeler v. Caryl, 1 Amb. 121 ; Church- (tc) Toicnsheiid v. Windham, 2 Yes. 4. 
 
 man v. Harvey, ibid. .340; I'urtridf/e v. (j) Ford v. Stuart, 15 Beav. 495, 499, 
 
 Oopp, 2 Anib. 590 ; Jieynell v. J'eacock, S. C. reversed on a diflferent point, 4 D. & 
 
 2 l{o. 105, 2 Ro. Abr. M, tit. Fraud; .T, 6G1. 
 
 Jiaw V. I'ote, 2 Vem. 239 ; D'dkrs v. (y) Per Sir J. Stuart, in Fraser v. 
 
 JJroadmead, 2 I). F. & J. 500 ; ]Vcllcr Thom2)son, 1 (Jiff. 49, 02 ; Rerun v. 
 
 V. Farmer, 4 Bio. 1". (J. 170. Crawford, 6 Ch. D. 29; ante, p. 91.
 
 MARRIAGE CONSIDERATION. S3 3 
 
 that the consideration is not capable of suitiiuitiiirr it (:), and 
 will do so ill some cases where the consideration of money 
 actually paid would not avail. 
 
 Thus, although a debt of an ancestor is bindinjj; on his lieir or MnrrmKc 
 devisee, a settlement by whom will be as much within the statute hcir'ordcvii.co 
 as if made by the ancestor himself (a), yet, in the absence of any Jnee^^'-V*' 
 special circumstances, land, after alienation by the lieir or devisee '^"'^•■• 
 for the purpose of a marriage settlement, is not liable to the 
 specialty debts of the ancestor of which there is full notice at 
 the time of the settlement (h). 
 
 In Iiiclianhon v, Hortoii (r) Sir W. Ilorton, indebted by special- 
 ties binding his heirs, died, leaving an only daughter, his heiress- 
 at-law and devisee of his real estates (subject to a life iuterest), 
 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 valuable consideration (the marriage), 
 and, no mala fides being directly proved or expressly alleged, Lord 
 Lanudale, M.E., decided that it could not be inferred from the cir- 
 cumstances. The imputation of fraud merely rested on this — viz., 
 that the parties to the settlement, knowing that there were debts 
 of the testator remaining 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 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, during which great ihictuations had taken place in the value 
 
 (;:) Campion \. Cotton, 17 Yes. 263 a; Apharr;/ v. Bodiugham, Cro. Eliz. 330; 
 
 ante, p. 89, as to the setting marriage ante, pp. 105, 1(3(3. 
 settlements aside ; and see Barrow v. {h) Matlificn v. Jonc/i, 2 Anstr. 50r,^ 
 
 Barrow, \S^t2^y.b2Si\ Buhner y. Hunter, (c) 7 Bcav. 112; :<padman v. Ttm- 
 
 L. E. 8 Eq. 40. '^''f/'. ^ '"^'ra- "-•>■''■ 
 
 (rt) Gooch'i Case, 5 Hep. 00 b
 
 334 THE NATURE OF THE 
 
 of tlie land, without one word said of explanation, 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 iusufhcient for the full 
 payment of the debts and the interest which had accumulated upon 
 them. 
 
 So a settlement on marriage of leaseholds or other personal estate 
 derived by will, if the bequest has been assented to, is good against 
 the creditors of the ancestor (d). 
 
 To rchat Of coursc, if tlic marriage then contemplated does not take jilace, 
 
 sideraHoQ ' the consideration wholly fails (t) ; and till such marriage takes place, 
 applies. |.j^g contract is not executed, and the trusts cannot come into opera- 
 
 tion. 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 provide for all their issue is defeated (g). Such 
 contract can then be rescinded, and such trust put an end to (h). 
 
 Effect of mar- Before the Married Women's Property Act, 18S2 (i), all the un- 
 peSond pro- Settled personal property of the wife which accrued to her during 
 perty of wife, j-j-^g marriage became by the marriage 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 consideration of which she parted 
 with her own (k). 
 
 There are no doubt some cases in which the Court will set 
 aside a settlement as to part of the property comprised in it. 
 Lester V. Garland (I) is a case of that kind. 
 
 ((/) Spachnan v. TlmhreU, 8 Sim. 2G0 ; (A) Chapman v. Bradley, 4 De G. J. & 
 
 DUkes V. Broadmcad, 2 D. F. & J. S. 71 ; see Elpb. Deeds, 331, 332. 
 
 56G. (0 45 & 4(3 Vict. c. 75, ss. 1 (1), 2, 5. 
 
 (e) (Jiapman v. Bradley, 33 Beav. Gl, (k) See perLord Ilardwicke in Harve;/ 
 
 S. C. 4 De G. J. & S. 71 ; and see ('vuJson v. Asnley, 3 Atk. Gil, infra ; Fry, Sp. I'f. 
 
 V. Alison, 2 Giff. 279, 8. C. 2 D. F. & J. 2nd ed. 415-416. 
 
 521 ; post, pt. V. ch. iv. (0 5 Sim. 205, in wliich a settlement 
 
 (/) M'Donndlw JlesUriye, IG Beav. of the husband's estate so that his life 
 
 346; Essery v. Cowlard, 2G Ch. D. interest ceased on his bankruptcy was 
 
 191. held good as to so much as was equal to 
 
 (g) Pawson v. Brown, 13 Ch. D. 202 ; the amount of the wife's portion which 
 
 sec Dav. Tree. 4th ed. vol. 3, 11. was not settled ; post, p. 337.
 
 MARRIAGE CONSIDERATION. 335 
 
 But where tliere are reciprocal settlements and the consideration Poculiaritv of 
 of marriage occurs, it is necessary to observe all the circumstances. Tf mHlriT'-o" 
 Two things are involved: there is the marriage itself, as it allects tl'^'r'"".^'*"- 
 the personal rights and duties and disahilities ; there is also the iil'l«- 
 settlement, as it affects tlie property of both parties. In setting 
 aside a settlement or conveyance made on pecuniary consideration 
 as void against creditors there is no dilhculty about restitution. 
 The property is restored and the money repaid. I'oth parties are 
 by the decree of the Court remitted to their previous 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 Campion v. Cutton (m), notwith- ('<tmjnon v. 
 standing the strong circumstances shewing fraud against the 
 creditors, the paramount value of the consideration of marriage 
 supported 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 embarrassed, and the wife well knew his pecuniary dilli- 
 culties. 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 stock not his own property, but 
 the property of persons for whom he acted as broker. Xotwith- 
 standiug 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 impossibility of restitution, from 
 the nature of the marriage contract (»). 
 
 In Hogan v. Hcaley {u) a father gave a promissory note in con- 
 sideration of his daughter's marriage, relying on the reported sol- 
 vency of his daughter's future husband. It was admitted this was 
 a misrepresentation. It was held that, as the marriage was the 
 consideration 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. 
 
 (m) 17 Ve6.2G3 a; sccA'6'«««v. Cra»«- («) 11 Ir. Hop. C. L. 122; an.l hco 
 
 /orc^, 6 Cb. D. 29 ; ante, p. 91. Johnston v. JohnMoit, 32 V/. 15. lUlO, 
 
 ()i) Per Sir J. Siuart in Frascr v. S. C. ;3;3 W. U. 239. 
 Thompson, 1 Gi£f. 63.
 
 336 
 
 THE XATUEE OF THE 
 
 Suppriority of 
 and difference 
 between mar- 
 riage and 
 other con- 
 tracts. 
 
 Each party 
 bound, inde- 
 pendently of 
 the others. 
 
 Issue pur- 
 chasers. 
 
 This superiority of the consideration of marriage arises partly 
 from the fact that in setting aside an ante-nuptial agreement it is 
 impossible to reinstate the contracting parties in their former posi- 
 tion and unmarry tlie parties (p), and partly because interests of 
 other parties than those whose hands are actually joined in wed- 
 lock are at stake. As Lord Hardwicke said (7), " these agreements 
 differ from all others ; the principal 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 dis- 
 cretion 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, tlie children born of 
 the marriage are equally purchasers under both father and mother ; 
 and therefore it has been truly said that marriage contracts ouglit 
 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 (?•). Even "If a hus- 
 band on his marriage, in consideration of disparity of years or any 
 other personal consideration, will make a very large settlement, 
 whatever that is, the parties claiming under it, whether wife or 
 children, are entitled to have that carried into execution according 
 to the intent, notwithstanding the husband has agreed in an extra- 
 ordinary liberal manner, beyond what is the rule." (s) 
 
 The view thus taken by Lord Hardwicke has been followed by 
 later decisions. Thus in Bancliffe v. Farhjns (f) Lord Eldon (n) 
 observed that the consideration of marriage is not like the consi- 
 deration 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 tlie mutual issue are pur- 
 chasers, though it is not made good by one of the parties, the issue 
 have a right to say. You shall each of you do what you can do, 
 and we must not be disappointed (r). And it seems that even 
 though the portion mentioned in the settlement was not paid, the 
 
 (p) North V. AnseV, 2 P. Wms. G18. JlHh v. Borthwlch, 11 .lur. (N.S.) 558; 
 
 (7) See Harvey v. Jshley, 3 Atk. 610. Jeston v. AVy, L. E. 6 C'h. CIO. 
 (r) Bancliffe v. J'arli/ns, Dow. 149 ; («) Frirue v. /Stebbintj, 2 Yes. 409. 
 
 Chilliner v. Vhilliner, 2 Yes. 528; and (() 6 Dow, 14'J. 
 
 (u) G Dow, 2U0.
 
 MARRIAGE CONSIDERATION. 337 
 
 issue arc equally purcliasers, f(jr they take under both parties, and 
 whether they perform their agreement among themselves may be 
 immaterial to the issue ; they are purchasers under both, and con- 
 sequently both arc obliged to perform (r), and failure of the consi- 
 deration covenanted to be ].aid by the husband or wife will not 
 make the benefits received by hiiu or her in return for it void r.r 
 even voluntary (?'.'). 
 
 In Jcston v. Key (,/;) a marriage contract was entered mio Jalon^. K^if. 
 between the husband and the wife's father. Loth agreed to 
 make a settlement, and this agreement was not performed by 
 either party. But the contract was ])arLly performed liy thi- 
 marriage. The wife died without issue, and the father, who 
 had entered into certain covenants, was also dead. 
 
 It was held by the Court of Appeal that, although tlie 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 precedent to his right to claim against the other. 
 
 As to the otlier reason for the value of the consideration of Parties cannot 
 marriage, the impossibility of restoring them to the status in quo — fomerposi- 
 either as to property or as to their mutual relationship — in Frascr v. *'°"" 
 Thompson (y), where it was attempted to set aside the settlement 
 only as to the husband's property, Sir J. Stuart, V.C, said, " this 
 view presents various difficulties. The settlement of the husband's 
 property is part of the consideration for tlie settlement of the wife's. 
 If the husband's property is to be restored to his creditors, it is im- 
 possible to restore to the wife that state of enjoyment of her property 
 which she had before the marriage. ])y 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 settlement of 
 her husband's property. These diiliculties as to restitution, when 
 duly examined, illustrate the principle on which settlements made 
 in consideration of marriage are supported against creditors where 
 a pecuniary consideration, however adequate in point of value, 
 would lie insufficient. But the difficulty extends beyond the effect 
 of the settlement on the wife's property included in it." 
 
 (v) Per Lord Hardwicke in Jiamsden (w) Campbell \-. Iiifiill;/, 21 Ifcav. oC7; 
 
 V. Hylton, 2 Yes. ."09; and see Camp- and see Lee v. Lee, 4 C:h. D. 17j. 
 Ml V. Iitoilhy, 21 Beav. Mu. (j") L- R- 6 Oh. filO. 
 
 (_?/) 1 Giff. 49, 02, C3, S. C. revereed on a different point, 4 De 0. & J. 659.
 
 338 
 
 THE NATURE OF THE 
 
 Interest to 
 liusband m his 
 own property 
 to cease on 
 bankruptcy 
 void ; 
 
 A man cannot, on his marriage, settle his own property in such 
 a manner that in the event of his bankruptcy liis wife shall be 
 entitled to a provision out of it in prejudice to his creditors (~). 
 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 fraudulent on the face of it, to disappoint 
 creditors (a). 
 
 So a man cannot on his marriage settle his own property, real or 
 personal, so as to take an interest under the settlement, defeasible 
 on his bankruptcy (h). 
 
 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 real estate on trust to pay 
 the interest to him until he should sell, mortgage, assign, or 
 encun:iber the same, or should become bankrupt, and then on trust 
 to pay to the wife £300 a year for her separate use, and he first 
 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 limitation over on his bankruptcy was valid (e). 
 
 If tlie wife's Eut a similar limitation of property belonging to the wife (/), or 
 
 ^^^'"^' of a legacy to which she became entitled during coverture (g), or 
 
 of property coming from the wife's friends (A), or even coming on 
 
 or to wife if 
 
 s<-ttlement by 
 lier is made 
 after 1882. 
 
 Estate defeat- 
 ed by mort- 
 gage before 
 bankruptcy. 
 
 (z) Per Lord ]\Ianners in Iligginson v. 
 Kelly, 1 Ball & B. 252, 255. 
 
 (a) Wise's Case, Sel. Ca. Ch. 4G, 8vo 
 ed. p. 128. 
 
 (t) Lodcyer v. Savage, 2 Stra. 947 ; 
 Ex parte Murphy, 1 Sch. & Lef. 44; 
 Higglnbotham v. Holme, 19 Ves. 88 ; 
 Pliijyps V. J<ord Ennismore, 4 Russ. 131 ; 
 Clarke v. Chambers, 8 Ir. Ch. Rep. 26 ; 
 and see In re Pearson, 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). 
 
 (e) Brooke v. Pearson, 5 Jur. (N.S.) 
 781. 
 
 (/) Ex parte Meaghan, 1 Sch. & Lef. 
 179; Ex 2^arte Hinton, 14 Ves. 598; 
 Ex parte Cooke, 8 Ves. 353; Stockicell v. 
 Yeates, 17 W. R. 23. 
 
 {rj) Montefiore v. Behrens, L. R. 1 Eq. 
 171. 
 
 {h) Ex parte Oxley, 1 Ball & B. 257.
 
 MARRIAGE CONSIDERATIOX. 339 
 
 the liusband's side from a tliird party (i), or, if the .settlement was 
 bona tide a matter of bargain of property coming partly from a 
 third party and partly from the husband himself (/,), will he go(jd 
 against his creditors. 
 
 And where the property settled, though strictly speaking the Partly tlir^ 
 husband's, is in reality what came from the wife's side, such a fK'' T''^'"^ 
 limitation of it will bo upheld (/) ; and a limitation of this nature 
 of the husband's property is vahd for so nnich 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 tlie 
 husband until his bankruptcy, the limitation over will be good (/). 
 
 These principles seem to apply to a settlement made after 1882 similarly if 
 upon a woman of property belonging to or derived from the hus])and, seulemc-ift""' 
 wdiich will in a similar case be good against her creditors (//) either jgg'lf *'^^'' 
 wholly or pro tanto. 
 
 In no case, however, can property be limited to a man in such a Cre.litors can- 
 manner as to prevent his creditors from obtaining any interest in eluded 'from 
 it on his bankruptcy, although he is still to get the benefit of it. l":T:'''y 
 
 ^ ^ ' o o wliich a man 
 
 Such a limitation can only 1)6 made with a view to defraud i'* 'o enjoy, 
 creditors (o). 
 
 But goods and chattels, such as furniture or stock in trade, which, Ooods settled 
 
 IP 1 • 11 1 1 •(< • 1 1 • , on wile for 
 
 before the marriage, belonged to the wife, might by marriage settle- the purposes 
 nient be conveyed to trustees, to enable her to carry on her business ^ "^' ''"' ^ 
 separately ; and if the husband has not intermeddled with them, 
 and there be no fraud, such efiects are not liable to the husband's 
 debts. But whether the trade has been carried on solely by the 
 wife or jointly with the husband is a question of fact for a jury, 
 and, if they determine the latter, the stock in trade is lial)le to 
 the husband's debts, but not the furniture, although removed to the 
 husband's house (p). 
 
 (i) Leivisv. IIidler,U\Y.Tv. Cj9,h 429; lUppon \. Norton, 2 Beav. 03; 
 
 {k) Hammonds v. Jkirrett, 17 W. K. Dommett v. JJctlford, 3 Yes. 149. In 
 
 1078. these cases the limitations ■were not in 
 
 (/) H'ujglnson v. Kelly, 1 Ball & B. marriage settlements. But ."^ee Holmex 
 
 2:y2. V. Penney, 3 K. & J. W, 100, ante, 
 
 {m) Lester v. Garland, o Sim. 205; pp. 110, 111. 
 and see Eobson, Bkcy. .'3th ed. 475. {!>) Jarman v. Woolloton, 3 T. R, G18 ; 
 
 {n) 45 & 4G Vict. c. 75, ss. 1 (5), I{aselinton\.Gm,\h\A. (>20,n.; .Dean \. 
 
 19 25. Broivn, 8 Dowl. & By. 1'5 ; and see now 
 
 (o) Brandon v. Robinson, 18 Vcs. 45 & 4G Vict. c. 75, ss. 2, 5.
 
 340 THE NATURE OF THE 
 
 Not fur trade. 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 
 
 No schedule, them during the interest of the debtor in them {rj) ; and the 
 mere absence 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)y yet where (s), on the marriage of a woman who had 
 previously been in trade, a settlement was made of all the articles 
 mentioned in the schedule thereto, " and all her stock in trade, 
 materials, and other articles then belonging to her in and about 
 her said business," it w^as held that a horse and chaise, which 
 she had always been in the habit of using for visiting her 
 customers, passed to the trustees, although not mentioned in the 
 schedule. 
 
 Husband in- Where the husband is " indebted " at the time, such a settle- 
 debtedattime ^^^g^-^f ^q -[^q valid aqaiust creditors, must be ante-nuptial or for 
 
 o( settlement. ' o ^ 
 
 value (/) ; for the same principle applies where the settlement is 
 Tost-nuptial after marriage and on valuable consideration between husband 
 for^J^ihfe"^ and wife {u). But in order to make valid against the husband's 
 creditors 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 (f). 
 
 Voluntary. ^^^^ there seems no reason why a mere voluntary post-nuptial 
 
 settlement of furniture or of stock in trade to enable the wife to 
 carry on a separate trade, registered as a bill of sale, and made 
 when the husband was not indebted, and without meaning to 
 defraud subserj^uent creditors, should not be valid against his 
 creditors although the transfer was not followed by any apparent 
 change of possession («■). 
 
 («/) Cadoganv. Kennett, 2 Cowp. 432 ; {t) See ante, pp. 34 et seq., 78 et seq. 
 
 Simmons v. Edwards, IG M. & W. 838. (w) Arundell v. FhijjjJS, 10 Yes. 139, 
 
 (r) Jarman v. Woolloton, 3 T. R. 150. 
 
 CIS, G22 ; and see Weel.:s v, Muillardet, (c) Asldon v. Blaclshaic, L. E. Eq. 
 
 14 East, .568 ; England v. Downs, 2 510; ante, pp. 147, 153. 
 
 IJeav. 522, 530. (jf) See Dewey v. Baynlun, G East, 
 
 (s) Dean v. Brown, 8 Dowl. & Ry. 05. 207 ; ante, pp. 3G et seq.
 
 MARRIAGE CONSIDERATION. 341 
 
 The provisions of a nianinge settlement cannot extend to what Sctilemcnton 
 
 1 • 1 1 ii re-niarriii^:o 
 
 was not contemplatccl liy the parties at the tunc; and whether after divorce. 
 
 or not a re-marriage 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 nut 
 
 have been within the intention of the parties to the deed (;/•). 
 
 In Carr v. Taijlov (y) the question was said to Ijc whether the 
 husband was purchaser of the whole fortune 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. 
 
 All the limitations to the husband, w^ife and issue are pro- All limii.v 
 
 . . . . ,^ . tions to lius- 
 
 tected by the marriage consideration. So it was said m ^\«"'h band, wifo, and 
 V. Prov:s& {z) : " Every provision with regard to the husband and ["'^"ed^"^" 
 wife falls directly within the consideration ; and the wife is 
 interested in the provision for the husband as well as that for 
 herself. The marriage 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 not material that when the 
 provision is made for the husband it may be liable to his 
 debts " («)■ 
 
 Even after the death of the husband or wife without issue the K ven after 
 
 . (lentil 01 
 
 consideration of the marriage remains (&). So if a settlement is husband and 
 
 made by a father, upon the marriage 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 husband is the 
 
 only object, it could not be contended that the father's creditors 
 
 could impeach that settlement and take from the son the 
 
 provision for his life ('') ; and a settlement of lauds may, after 
 
 (X-) Bond V. Tayhr, 2 J. & H. 473; Fulvertoft, 18 Ves. 92; Barham v. C7a- 
 
 Essery v. Coidard, 2G Ch. D. 191 ; ante, rendon, 10 Hare, 120. 
 
 p. 334 ; post, pt. V. ch. v. (&) Jeston v. Ke;,, L. E 6 tb. GIO 
 
 (y) 10 Ves 578 (0 '^«'''" ''• ^™"-"'^' ^ ^'" "": ' 
 
 \z 6 Ves. 758 ; post, pp. 342 et seq. and see O^Gorman y Comyn 2 Sob & 
 
 (4 See also Lane, 22; Fulvertoft v. Lef. 148. Divorce docs not give the
 
 142 
 
 THE EXTENT OF THE 
 
 the death of husband and wife and issue, he 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 made 
 
 rhuje ci'V"'"' 0^1 the marriage of a stranger, for it is not from the relationship 
 stranger, good, ijgt'^veen the settlor and the settlee that the creditors or purchasers 
 are debarred (c). 
 
 A married woman might even before 1883 charge her separate 
 property by a gift on marriage to a stranger, who would not Ije 
 considered a volunteer (/). 
 
 The value of the marriage consideration is apart from and 
 independent of any money consideration which may pass between 
 the parties by way of portion or otherwise, so that the quantum or 
 inequality of pecuniary benefit does not in general afi'ect the 
 question (g). 
 
 The question how far the consideration of marriage extends is 
 one of great difficulty, and has given rise to a series of conflicting 
 and inconsistent decisions from a very early period. 
 
 The oeneral rule has been laid down to be that the valuable con- 
 sideration of marriage extends only to support interests given to 
 the husband, the wife, and the issue of the marriage, and to no 
 other person or persons (A). 
 
 Two exceptions, however, were made to this general rule — one 
 
 By married 
 woman of 
 separate 
 estate. 
 
 Consideration 
 of marriage 
 the same 
 whether any 
 portion or not. 
 
 Extent of 
 consideration 
 of marriage. 
 
 Consideration 
 of marriage 
 only supports 
 limitations to 
 husband, wife, 
 and issue. 
 
 Court jurisdiction to set aside the mar- 
 riage settlement : Evans v. C'arrinyion, 
 29 L. J. Ch. 330. See 2Ierryv:eaiher 
 V. Jones, 10 L. T. (N.S.) 62. As to the 
 jurisdiction of the Probate Division to 
 alter a marriage settlement, see 22 & 23 
 Yict. c. 61, s. 5 ; Syhes v. tSylces, L. K. 
 2 P. & D. 163 ; Gladstone v. Gladstone, 
 1 P. D. 442 ; Benyonv. Benyon, 1 P. D. 
 447 ; 41 Yict. c. 19, s. 3 ; Yylesias v. 
 Tgleslas, 4 P. U. 71 ; Ponsonhy v. Pon- 
 sonhy, 9 P. D. 122. 
 
 (fZ) Lechmere v. Carlisle, 3 P. Wms. 
 211 ; Barham v. Clarendon, 10 Hare, 
 132-3. 
 
 (e) Nairn v. Froicse, G Ves. 7.52-9. 
 
 if) Power V. Bailey, 1 Ball & B. 49 ; 
 and see now 45 & 46 Vict. c. 75. 
 
 (g) Ex parte Marsh, 1 Atk. 158-0 ; 
 Brovn V. Jones, 1 Atk. 188, 190 ; North 
 
 V. Ansell, 2 P. "Wms. 618; Hurcey v. 
 Ashley, 3 Atk. 607 ; Bamsden v. Hylton, 
 2 Ves. 309 ; Prebhle v. Boyhurst, 1 Sw. 
 309, 319 ; Nairn v. Prowse, 6 Ves. 752, 
 ante, p. 341. 
 
 (/t) Case of St. Saviour^ hi SoiithicarJ,-, 
 Lane, 21, 22 ; Osyood v. ,Strode, 2 P. 
 Wms. 245 ; Johnson v. Legard, 6 M. & S. 
 60, S. C. in Chancery, T. & K. 281; 
 ti'utton V. Cheticynd, 3 Mer. 249 ; /Stac- 
 poole V. StacpooJe, 4 Ur. & War. 320, 
 S. C. 2 Con. & Law. 489 ; Ford v. Stuart, 
 15 Beav. 495; Cotterell v. Homer, 13 
 Sim. 506 ; Clarhe v. Wright, 6 H. & X. 
 870 ; Smith v. CherriV, I^ P. 4 Eq. 390 
 Price V. Jenkins, 4 Ch. D. 483 ; Gale v. 
 Gak, 6 Ch. D. 144 ; Maclcie v. Her- 
 hertson, 9 App. Cas. 303. See infra, 
 where the above cases arc all cited.
 
 MARRIAGE CONSIDERATION. 343 
 
 was in favour of settlements made hy a widow before marriage on Twoexcep- 
 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 cither the husband or tlie wife by afiUurc 
 marriage (k). 
 
 According to this view, when oilier limitations were supported 
 it was, either because they came within one of these two exceptions, 
 or because of the considerations of the particular contract which 
 extended to, and comprehended, the various interests of all the 
 parties to the contract. 
 
 As to the general rule, in several cases the marginal head-notes Eff.-ct of somo 
 state that the case shews that the consideration of marriage runs BtateJTlii '"'*' 
 through all the estates raised by the settlement ; whereas, on read- "'"•"J?'"al 
 
 ^ _ '' ' ' notes. 
 
 ing the case, it appears that this is not the fact, but that the decision 
 went on the particular circumstances (l). 
 
 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 purchaser, 
 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 efjually purchasers under both father and mother." 
 So Lord Chief Justice Cockburn said in Clarke v. Wriglit {o) : "I CJarl-e v. 
 can come to no other conclusion than that a limitation in a marriage '"'^ ' ' 
 settlement in favour of the relations of the settlor, other than the 
 issue of the marriage, is not within the consideration of the marriage, 
 and therefore, in the absence of any other consideration, must be 
 taken to be voluntary." In the case of Smith v. Cherrill (p), Sir 1'. Smith v. (7^/-- 
 Malins, V.C., said : " I have always understood and still understand 
 
 (i) Xewstead Y. Searles, 1 Atk. 265; (I) Itliell v. Bcane, 1 Ves. 215; 
 
 Clarice v. Wright, 6 H. &N. 849; dale Jenkins v. Kajmis, 1 Lev. 150; Stephens 
 
 V. (?rtfe, 6 Ch. D. 144 ; infra, p. 349. v. Trucman, 1 Ves. 73; White v. 
 
 (k) Jenkins v. Keymis, 1 Lev. 150, 237, Stringer, 2 Lev. 105 ; see Price v. Jenkins, 
 
 Hardr. 395, 1 Ch. Ca. 103 ; Ben. d. Vernon 4 Ch. D. 483. 
 
 V. Ogle, Lofft, 216-7 ; Sutton v. Chetwi/ml, {m) St. Saviour's in Soitthwark, Lane, 
 
 3 Mer. 249; Clai/ton v. Wilton, 3 Mad. 21,22. See also 2 Roll. Abr. 784. 
 302, n., G M. & S. 67; In re ('alleris {n) 3 Atk. 610. 
 
 Estate, 14 Ir. Ch. Rep. 506 ; Wollaston (o) 6 H. & N. 870. 
 
 V. Trihe, L. E. 9 Eq. 44; 31ackie v. Her- (p) L. K. 4 Eq. 390. 
 
 herfson, 9 App. Cas, 303 ; infra, p. 350.
 
 344 THE EXTENT OF THE 
 
 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 
 provisions for collateral relatives from whom no valuable considera- 
 tion moves, then, quoad those objects, the settlement has nothing 
 to do with the marriage, but is to be considered as a settlement 
 purely for the purpose of providing for those relatives." 
 
 Mnch'o T. So in the most recent case of Madde v. Herhertsoii (-s), in the 
 
 Jlerbertson. -^^^^^^ ^j ^^^,^1^ (though a Scotch decision). Lord Selborne, L.C., 
 said: "The considerations of the contract, though founded on 
 marriage, must, I apprehend, extend to all those terms of the con- 
 tract 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 consideration, then not the matrimonial 
 consideration properly so-called, but the considerations of the 
 mutual contract extend to and comprehend them." 
 
 0.<'r,ood V. The general rule was first clearly and definitely laid down in 
 
 Strode. (Mjood V. Strode (t), where (although a case in which limitations 
 
 to collaterals were held valid from their having considerations other 
 
 than that of the marriage to support them) Lord Macclesfield said : 
 
 " The marriage and marriage portion support only the limitation 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 presumption of law and by the reason of the value attached to 
 
 the consideration of marriage, confined to the immediate objects of 
 
 the marriage. 
 
 Jenkhif V. Lord Hale's decision in Jcnlcins v. Keymis (u) at first sight appears 
 
 Keyrnts. ^^ ^^ opposcd to this, where he is reported to liave said : " The 
 
 consideration of the marriage and of the marriage portion will run 
 
 to all the estates raised hy the settlement, although the marriage is not 
 
 (7) 6 :\I. & S. 60, S. C. 3 T. & IJ. 281. ]{ecvcs v. Jkcrcs, 9 Mod. 1.32, per Lord 
 
 (r) T. & R. 281, S. C. 3 Mad. 283. Macclesfield ; i*'a«sc v. 6V«//, 2 Vcrn. GO."]; 
 
 (s) 9 App. C'as. 337. dray v. Le(jard, 9 L. .J. Ch. (U.S.) 80 ; 
 
 {t) 2 P. Wms. 245, 255, commented Ford v. Stuart, 15 Beav. 499. 
 
 on in PWcc V. ./e»Jart«, 4 Ch. D. 489, 490. (m) 1 Lev. 150, 237, Hardr. 395, 1 
 
 See also Slaplehill t. JJully, Free. Ch. 224 ; Cb. Ca. 103 ; and see note (y) next page.
 
 MARRIAGE CONSIDERATION. 345 
 
 concerned in them so as to make llieni .^ood ar,'aiiist purchasers and 
 toavoida voluntary conveyance,"— ^v.u■d.s wliich have been (jfteu 
 cited to shew that at that time it was tliuuj^ht tliat the marriage 
 consideration wouhl uphold any limitations in a settlement. ]}ut 
 it is hard to see why these words should be carried beyond their 
 most natural meaning, wliich is that tlit-y laid d(j\vn no general 
 proposition, but referred only to "the settlement" in that case. 
 This not only reconciles this case with all the other authorities, but 
 is coutirmcd by a case (v) decided a few years afterwards, in which 
 the same judge took part, and where a liuiitatiiju in a marriage 
 settlement to a brother of the husband was held voluntary, shewing 
 clearly that he did not think evenj limitation supported by the con- 
 sideration (w). 
 
 The actual decision in Jenkins v. Kcymis, however, tliat the limi- 
 tation was not voluntary, is not opposed to the general rule. There 
 was sufficient consideration apart from that of the marriage to 
 uphold the limitation as valuable ; and external considerations, Cnsi.ipmiions 
 whether inferred from the terms and nature of the settlement or IhatU tho 
 supported by external proof, will support limitations not actually '"'"""b'c- 
 within the objects of the marriage ('). 
 
 The case was thus : at the time of the settlement the fatlier was Jerdxn$ v. 
 tenant for life with remainder to the son (the husband) in tail male, 'y'"'*' 
 By the settlement the estate 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 («), when he mentioned the case of persons not 
 within the consideration of marriage directly, but who have always 
 been so considered, preventing the effect of the statute. "In the Father tenant 
 case, for instance," he says, " of a father, tenant for life, with nmin.k-Mio son 
 
 in liiil. 
 
 {v) Roscarrkh v. Barton, 1 Ch. Ca. S. C. 5 Ch. D. C19 ; G^a/e v. ^a/<r, 6 C'li. D. 
 
 217 220. l-l-l; !»' re iS/ieridan, L. I!. 1 Ir. 54; 
 
 (y;) In Drn. d. I'eriion v. %/c, I.offr, Machie v. Kerhertson, 9 App. Cas. 303. 
 216, Jenlins V. Keipms v:iis spoken of as (//) llarJr. 395, 1 Lev. 2j7. But sco 
 
 within one of the exceptions to tlie general 1 Lev. 150 and 1 Ch. Ca. 103, where tho 
 
 rule; see 1 Lev. 237, and post, pp. 353, limitations are rather difTerently Htntcd. 
 35(5. (2) In Ptilvcrtoft v. Puhcrtoft, 18 Vcs. 
 
 {x) Clarke v. Wruikt, 6 H. & N. 849, 81, 92 ; past, pp. 363, 364. 
 877; Fricev. Jenkins, 4 Ch. D. 486-488,
 
 346 THE EXTENT OF THE 
 
 remainder to liis son in 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, 
 thouorh not within the consideration of the marriage, are not within 
 the contract between 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." 
 
 This case was commented on by Hall, V.C., in Price v. JcnJdns (a), 
 and there explained to be a special bargain between father and son 
 for that particular settlement, as well as a contract which arose 
 from, and was supported by, the consideration of the portion com- 
 ing from the wife. 
 First excep- One exception to the general rule (h) has been made in the case of 
 oHssiie 0?^'^" a settlement by a v:idow on her marriage, in favour of her children 
 n former q^ other issuc of a former marriage, or her illegitimate children. 
 
 marnage, 
 
 or illegitimate jj^- ^^^^ l^-^l j^^^^^ ^^. j^^^^ Hardwicke in Newstead v. 
 
 cliildreD. " 
 
 Searles. ^ ' 
 
 The facts in that case were as follows : — A widow, having two 
 grandchildren unprovided for, on her second 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 
 
 (a) 4 Ch. D. 487, 488. 
 (6) Supra, p. 342 ; Cluipman-v. Emery, 215; Chapman -v. Bradley, SZ Jica.\. 65 ; 
 Cowp. 278, 280; Cruise, Dig. 4th ed. Gale\. Gale, 6 Ch.D.lU. 
 vol. 4, p. 443 ; Ithell v. JJeane, 1 Yes, (r) 1 Atk. 265.
 
 MARRIAGE CONSIDERATION. 347 
 
 husband might then cuiitrivc to defeat the ])rovisiuu made fur tliose 
 chiklren. I am of opinion that these articles ought not to be con- 
 sidered as a vohmtary agreement, and that the phiintills are entitled 
 to relief in this Court. This is the case of a widow, wlio lias two 
 children by a former husband, and no provision made for tlieni, 
 and those two children have each of them a child, and tlie mother 
 being in possession in her own right of freehold estate, leasehold, 
 and copyhold, the second husband, if there liad been a child born 
 alive, would have been entitled to be tenant l)y the curtesy of tlie 
 freehold, and also to the leasehold and copyhold immediately upon 
 the marriage." 
 
 It should be observed that Lord Hardwicke in this ca.'je really 
 decided two questions. 
 
 The first was that the grandchildren of the first marriage could 
 maintain a bill for performance of the articles 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). 
 
 In the leading case of ClarJiC v. Wrigld (e) the case of Ncicstead Clarke v. 
 V. Searles (/) was carefully reconsidered and followed both by the 
 Court of Exchequer ((/) and the Court of Exchequer Chamber (h), 
 but upon difi'erent grounds in the two Courts. 
 
 The settlement in that case was of real estate, and was made by 
 a widoiu on her second marriage on herself 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 illegitimate son was valid, 
 as against a subsequent mortgagee, under 27 Eliz. c. L. 
 
 Baron Channell, in delivering the judgment of the Court of 
 
 (d) Galew. Gale, 6 Ch. 1)., per Fry, J., (/) 1 Atk. 265. 
 
 148, 149. ('/) Dirlrnaon v. Wriyhl, 5 Jl. & N. 
 
 (e) 6 H. & X. 849. 4ol, 412. 
 
 (h) 6 II. & N. 87J.
 
 348 THE EXTENT OF THE 
 
 Exchequer, referred to Kacstcad v. Scarlcs (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 Justice Cockburn, 
 after elaborately commenting on the doctrine that collaterals and 
 third parties are not within 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 : " Xever- 
 theless I am of opinion that this limitation should be upheld. 
 Upon the rule that in a marriage 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 Ncwstcad v. Scarlcs (k) Lord Hard- 
 wicke held that in a marriage settlement the settlor might intro- 
 duce a limitation in favour of the children of a former marriage (/); 
 while in Clayton v. The Earl of Wilton (m) Lord Ellenborough 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 have never, so far as I am aware, been 
 impugned. The decision of Lord Hardwicke in Newstead v. 
 Scarlcs (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 construction of the statute. It is not to be 
 
 (i) 1 Alk. 265. ^aa Ex parte Marsh, Hardwicke simply deciJcJ tliis point when 
 
 1 Atk. 158 ; Kinrj v. Cotton, 2 P. Wms. such (-ettlement was }uadc by a tc'ulow. 
 
 674 ; England v. Downs, 2 Beav. 522 ; See his judgment supra, p. 346. It has 
 
 Itoch V. Dade, Mth. S. 1709, post, moreover been doubted whether dillcrent 
 
 Appendix No. XHI., commented on in considerations did not apply when such 
 
 Price V. Jenkins, 4 Ch. D. 485, 486. settlement was made by a icidoiccr. See 
 
 (k) 1 Atk. 265; West, t. Hardw. 287. infra, pp. 352 et seq. 
 
 (1) This statement does not appear to (m) 3 Mad. 302, n. 
 
 bo borne out by the case itself. Lord (») 1 Atk. 265.
 
 MARRIAGE CONSIDERATION. 349 
 
 wondered at tliat judicial exposition stopped short of applyin^i,' it 
 wlieu the consequence was to prevent tlie owner of property, on 
 making a settlement on marriage, from making any binding pro- 
 vision for liis existing children. We ought not, in my judgment, 
 to overrule the cases to which I have referred. Having stood thus 
 long unimpeached, they may have led to tlie introduction of 
 similar provisions into many settlements, and we cannot tell what 
 mischief we may occasion by overturning them, while no mischief 
 can arise from sanctioning such limitations beyond wliat 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 Navstcad v. Scarles (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 (2^), observed that it 
 would be very difficult to apply the principle of its decision to 
 any other case not exactly similar in its circumstances. The 
 •^rounds 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 tliat 
 Court not only diftered, but differed as regarded the judges who 
 agreed with the decision of the Court of Exchequer. 
 
 These cases were again carefully reviewed by Lord Justice Ery, 
 then ]\Ir. Justice Ery, in Gale v. Gale (§-), and followed. Gale v. GuU. 
 
 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 copy- 
 hold premises to him, to be held l)y 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. 
 
 Ery, J., after pointing out that there was consideration for tlie 
 
 (0) 1 Atk. 205. ir) 4 Ch. D. iS5. (7) G Ch. D. lU.
 
 THE EXTENT OF THE 
 
 settlement l)ut no consideration from the children, and commenting 
 on jyetcsfcad v. Searlcs (r), said : " It seems to me that Ncicsfcad v. 
 Searlcs (r) is all that is necessary for determining this case. I find 
 here a widow with children l)y 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, 
 and the issue of the first marriage instituting proceedings, 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 Justice Cockburn in Clarhe v. Wright (.s) as a most emphatic 
 approbation and adoption of Ncwstcad v. Searlcs (r) in its integrity. 
 
 Tn the most recent case of Macl-'ie v, Herhcrtson (f) in the House 
 of Lords, a settlement by a widow on her second marriage, upon 
 her children by her first husband, was upheld ; but upon a different 
 ground from that given by ]\Ir. Justice Pry in Gcde v. Gale (u) as 
 the ground of his decision, or in his view of Lord Hardwicke in 
 Newstead v. Searlcs (?•). 
 
 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 marriage, to which they alone were 
 parties, conveyed to trustees all her real and personal property, 
 upon trust for her 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 regarded in a question of this 
 kind as to what is and what is not within the considerations of the 
 contract, the cases of Newstead v. Searlcs (r) and Clayton v. Lord 
 Wilton (r) would be very much to the purpose. Newstead v. 
 Secn-h's (r) was a case of this kind. There was a marriage contract, 
 and there was a gift in remainder 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 exist- 
 
 (r) 1 Atk. 265. («) G Cli. D. 144; supra, pp. ?A9, 
 
 (s) 6 H. & N. 849, 873. 350. 
 
 (0 9 App. Cas. 336, 337, 342. (v) 3 :\Iad. 302, n.
 
 MARRIAGE CONSIDERATION. 35, 
 
 ence the state of things would l,o such u.s w. have liere. Upon 
 those circumstances Lord Hardwicke, a very great judge, enter- 
 tamed no doubt that the considerations of the contract inch.ded 
 the earher children, because their interests and those of the 
 children of the marriage which aft(u-wards took place were so 
 dealt with that the stipulations for those children who were 
 withm the marriage consideration were made dependent ui.on tlie 
 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 wind', 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 occur- 
 ring after a gift to male issue who were within the consideration 
 of marriage, and before another gift to female issue in the like 
 situation. 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 interests 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 j^roperly so-called, but the 
 considerations of the mutual contract extend to and comprehend 
 them." 
 
 It will be seen from these cases that a settlement made by a Such setile- 
 widow on her marriage on her children or other issue of a former '"*'"' "''.'"'■''' 
 
 on two uillt-r- 
 
 marriage or her illegitimate children, has been upheld, against a ^^^ grounds, 
 creditor or a subsequent purchaser for value, on two quite 
 different grounds. 
 
 On the one ground, such settlement has been treated as an ex- 1. As an ex 
 ception to the general rule {r), and that from the earliest cases to '^**P^'°"- 
 the case of Gale v. Gale {,'/). 
 
 (w) 3 Mad. 302, n. (y) 6 Ch. D. \ii : sec Everslcv, Dom. 
 
 (x) Ante, p. 342. Eel. 164, 135.
 
 352 THE EXTENT OF THE 
 
 2. As a ques- Oil the Other ground, and, it is submitted, the ground which will 
 rc/uui. ^^ ^^^^^ adopted by the Court after the case of Machic v, Ilcrhcrt- 
 son {z) in the House of Lords (although a decision on a Scotch 
 case) as the more accurate one, such settlement will be treated as 
 made for value or not, according as it is or is not a largain. 
 There will in this view be no question whether a widoiv's children 
 or other issue of a former marriage or illegitimate children are or 
 are not within the marriage consideration. The question will 
 simply be, was there a bargain on behalf of them or not, on her 
 re-marriage ? 
 
 It will be observed that Neustcad v. Searlcs (a) was in the case 
 of Maclcie v. Hcrhertson {z) so explained by Lord Selborne, L.C. ; 
 and also that this was the view taken in Clarlx v. Wright (b) by 
 both Blackburn and "Willes, JJ. 
 
 Settlement by It has been a question wdiether, to the case of a settlement 
 chndr^en oT made by a icidoiccr on his marriage in favour of his children or 
 issue ot _ other issue by a former marriage, or of his illegitimate children, the 
 
 tormerniarri- •' o o 
 
 age or illegiti- same principle of bargain or no bargain ought to be applied ; or 
 
 mate cliildren. ,1.111,1 , • ,, , 1 
 
 whether it should also be treated as an exception to the general rule. 
 
 The grounds on which such settlements by a widower have been 
 supported as for value, or held voluntary, are the same two 
 grounds as those in the case of such settlements liy a widow. 
 
 In the very early case of Ithcll v. Bcanc (c) a man on his second 
 marriage made a settlement of personal estate in favour of his 
 wife for life, remainder to the issue of her marriage, together with 
 his son by his former wife, and devised to him his real estate. 
 Lord Hardwicke upheld this settlement against creditors as a con- 
 tract between the husband, his second wife, and her friends, and 
 so far like Osgood v. Strodr. (d), it being provided in the agreement 
 that the son by the former wife should come in for a share, whiuh 
 was a bargain for valuable consideration. 
 
 It seems to have been assumed, however, in the judgment of 
 Lord Chief Justice Cockburn in Clarke v. Wright (c), that the 
 
 (s) 9 App. Cas. 303. (e) 1 Ves. 215. 
 
 (a) 1 Atk. 265 ; West, t. ILivdw. 287. (d) 2 P. Wins. 245 ; ante, p. 344. 
 
 [b) 6 H. & N. 849, 859 ; post, p. 357. (f) C II. & N. 849 ; snpra, p. 348.
 
 MARKIAGE CONSIDER ATIOX. 353 
 
 principle of Ncivstcad v. Scarks (/) applii.,1, and tl.aL L..,.I JI;,r,l- 
 wicke's decision covered tliis case, althou-l, l,is dcrisim, was oidy 
 as to such a settlement wlicn made l)y a vuloir. 
 
 Tlie authorities on this point were all carefully examined l.y />.;.. v. 
 Hall, V.C, in the case of Prirr v. Jcnhins (.</). In that case a ■'"''''""■ 
 widoiocr on his second marriage assigned leasehold houses to 
 trustees on trust for himself fur life, with remainder to liis son ].y 
 his first wife (//). 
 
 It was held hy Hall, V.C, that the settlement was an ordinary 
 voluntary settlement hy a father on his son, and, therefore, \oid 
 against a purchaser for value. Tlie ground on Mdiich the decision 
 went was tliis, tliat there was not, upon tin; true construction of 
 the settlement, any bargain between husband an<l wife iliat the 
 intended husband should settle any of his own property ui)on his 
 child by a former wife. He held that tlie cases of Jenkins v. 
 Keyniis {%), Clayton v. Earl of Wilton (/.:), Ithcll v. Beam (I), 
 Clarke v. Wright {m), were all consistent upon this view — that in 
 each case there was a bargain for the particular settlement. 
 
 It is conceived that the true view is in this case the same as 
 that in the similar case of such a settlement by a widow — 
 namely, that the real question is, was there or was there not a 
 hargain for the particular settlement ? 
 
 The second exception to the general rule was tliat tlie issue Second 
 of either husband or wife by a future marriage were held to be issue of 
 within the marriage consideration. „"i!!^f„„ 
 
 The case of Clayton v. Wilton (n) has usually been cited as f'lonio)) v. 
 establishing tliis. In that case T. C. on his marriage conveyed 
 lands of which he was ov/ner in fee to trustees to the use of 
 himself for life, remainder to trusLees to preserve contingent 
 
 (./') 1 Atk. 265. can estate for the joint lives of himself .nnil 
 
 {fj) 4 Ch. L). 483, S. C. 5 Ch. 1). 619 ; wife, with reniaindcr to the survivor for 
 
 andsee fr«?ev. 6'rt?(?, 6 Ch. D.,per Fry, J., life. The report also does not state 
 
 151, 152; and In re Green, 11 Ir. I'lCp. whether the wife was alive or dead. 
 
 Eq. 502. (i) 1 T^ev. 150. 
 
 (A) It should be noticed that the (/.) 3 Mad. 302, n. 
 
 limitations of the settlement given in 4 (/) 1 Ves. 215. 
 
 Ch. D. 483 and 5 Ch. D. 619 differ mate- (w) 5 H. & N. 401, IT. & xV. H40. 
 
 rially ; in 4 Ch. D. 483, the husband has [v) 3 Mad. 302, n., S. (". M. & J>. C7. 
 
 A A
 
 354 THE EXTENT OF THE 
 
 remainders, remainder to his wife fur her jointure, remainder to 
 the use of the first and other sons of the marriage in tail male, 
 remainder to the use of the first and other sons of the said T. C. 
 on the body of anij woman or women he might happen to marry 
 after the decease of the then intended wife successively in tail 
 male, and remainders to daughters of the intended marriage, &c., 
 remainder to T. C. and his heirs. 
 
 The wife died without issue ; then the husband, before his 
 second marriage, sold the lands, and he having issue by a second 
 marrian-e the question was, whether the remainder to his first and 
 other sons by any other wife was good against the purchaser. 
 Lord Ellenborough, C.J., and the Court of King's ]5enc]i, on a 
 case sent from Chancery, certified their opinion to be that the 
 conveyance to the purchaser was not a good and valid conveyance 
 against the issue of^the second marriage. 
 
 As was customary at that time, the reasons for this opinion were 
 not given. 
 
 Lord Chief Justice Cockburn in Clarlc v. Wriyld (o) spoke of 
 this decision as one that, so far as he knew, had never been 
 impugned. 
 
 Second This second exception has been also supported on a very 
 
 exception different and a much narrower ground, which only applies to a 
 
 only sapportea ^'■•■'^^'■^ o 
 
 when liinita- particular class of cases. 
 
 tion to children ^ 
 
 o^futare _ j j ^ Supported because the limitation to children of a 
 
 marriiige is ^^ aiw^ tj^^^ ^ i ^ 
 
 between two future marriao-e came between tiro limitations to children of the 
 
 limitations J ° ■, ~ •, • •, ^■ ^ ^^ ■. l- ^ 
 
 to children of then intended marriage, each of which was a valid limitation, and 
 if the intermediate limitation had been held in^•alid then the sub- 
 sequent limitation must also have failed. Each limitation to 
 children of the then intended marriage was good because it was 
 within the consideration of marriage ; and that was considered 
 necessarily to involve holding the intermediate limitation to be 
 also witliin the consideration of marriage. 
 
 It will be observed that tliis argument does not apply unless 
 the limitation to children of ^future marriage is followed by a 
 limitation to persons within the consideration of marriage; and 
 
 (o) (; II. & N. 873; supra, p. 348. 
 
 then intended 
 mannage
 
 MARRIAGE CONSIDERATION. 355 
 
 thereforo many cases comlu'^ williin tlii<? oxroption conl.l not bo 
 so supported. 
 
 Ill the very early case of J^oe v. 3nt/,m. (j>) tliis -nniii.l seems Jioc v. JIUton. 
 to have been first taken by Wihnot, C.J., tliou-h th(! jioint does 
 not appear to have been argued, and the limitation which was 
 supported was in favour of a brother, and not children of a fi'fitrc 
 marriage. Wilraot, C. J., there says : "In the present case iha 
 limitation to the daughters of tlie uianiage, subsequent to thr 
 limitation in question, is very material, and distinguishes tliis 
 case from all other the cases on this statute (q). It is true, 
 indeed, that the limitations of a settlement may be jiartly good 
 and partly void ; but liere the lirst is good, the last is good, and 
 the intermediate one only is attacked." 
 
 The case of Clayton v. Wilton (v) may also be supported upon Clayton v. 
 this ground, as the limitation to sons of a future marriage could 'I,'""". "? 
 not, in this view, be supported without supporting the subsequent 
 limitation to the daughters of the first marriage. 
 
 The same principle seems to liave been followed by Lord Ilard- 
 wicke in Newstcad v. Searles (s). 
 
 So, too, in Ireland, in the case of Stachpoolc v. StacJqjoole (f) it 
 was laid down by Lord St. Leonards, then Sir Edward Sugden, 
 Lord Chancellor of Ireland : " As a general rule they (remainders 
 to collaterals) are voluntary, unless there be some limitation 
 subsequent to them witliin the consideration which must Ite 
 supported." 
 
 The same princiiDle has also been recently followed in the Irish 
 case of I/i re Sheridan (u), where a limitation to a brother coming 
 between two limitations within the consideration of marriage was 
 uplield. 
 
 It is conceived, however, lliat llu' true view in this case also is 
 
 (li) 2 Wils. 35G; post, p. 302; 2 Wils. JenUns, 4 Ch. D. 489; Lord Selborno, 
 
 3id ed. 358, n. ; Sug. Y. & P. 14th cd. L.C., in Macliew Hirbertson,OAf jt.i'af^. 
 
 71G, n. 1. 337 ; and Dart, V. & P. 5th cd. 897, 89'.i. 
 
 (r/) 27 Eliz. c. 4. (s) 1 Atk. 2(57 ; supra, p. 310; see 
 
 (/•) Supra, pp. 353,354; and sec com- comments of Hall, V.<"., in J'n'ce v. 
 
 ments of Lord St. Leonards, V. & P. Mtli Jenllns, 4 Ch. D. 488. 
 
 cd. 71G, n. 1 ; Hall, V.C, in J'rirc v. (0 2 Con. & La\7. 502. 
 
 (h) 1 L. Pi. Ir. 54. 
 
 A A -2
 
 35 G THE EXTENT OF THE 
 
 The particular that sucli limitations are not within the marriage consideration, 
 limitation a ^ ^^ ^ ^j^^ ^,^^1 qucstion is, upon the construction of each 
 
 matter of bar- "-^^^ '- ^ ^ i • i i^i 
 
 S-ii"- particular settlement, is there or is there not a bargain, wlietlicr 
 
 between liusl»ana and wife, or l)etween one or lioth of them and 
 any other person or persons, as to these limitations? (/•) 
 
 This view appears to be borne out by the most recent cases, 
 and many of the older cases can be so supported. 
 
 Jenkins v. Kcymis (w) was explained by Hall, V.C, in Price v. 
 JenJdns (x) as a bargain between father and son which supported 
 the limitations in favour of the issue of the son by an// marriage. 
 
 Clmjton V. Wilton (y) was so treated by Blackburn, J., in 
 ClarJjc V. Wright (z). Blackburn, J., held that the limitations 
 in Clarh' v. Wrif/Jit (z) were made part of the marriage contract, 
 part of the reciprocal considerations between liusband and wife, 
 and were not voluntary (z). This view was followed by Hall, 
 V.C, in Price v. JenJdns (a). 
 
 In Ireland, in In re CuIIen's Estate (h), a man on marriage settled 
 his real estate, after limitations within the marriage consideration, 
 to the use of his sons of tlie 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 marriage had or had not 
 been the subject of a stipulation, and that, as such stipidation 
 did not appear, the daughters were volunteers. 
 
 In Wollaston v. Trihe (e) a limitation to children of any future 
 marriage in a settlement by a w^oman was said by Lord Eomilly, 
 M.Pt., to be not within the consideration of marriage, and purely 
 voluntary. 
 
 In the most recent case of Macldc v. Jlerhcrtson ((/), in the House 
 
 (v) Sweet, Conv. 2na ed. 968, 909; (z) 6 II. & N. 84P, 859; Willes, J., 
 
 Everslcy, Dom. Eel. 165. concurred. 
 
 {w) 1 Lev. 153, Hard. 295; and see («) 4 Cli. D. 483. 
 
 Den. V. Ofjle, Lofft, 216, and W/illr v. (b) 14 Ir. Ch. Iiep. .'JOG; and see 7« re 
 
 iitrhujer, 3 Keb. 322, S. C. 2 Lev. 105. Sheridan, 1 L. P.. Ir. 54. 
 
 {x) 4 Ch. D. 480-488 ; supra, p. 353. {<■) Ij. R. 9 Eq. 44. 
 
 (?/) 3 Mad. 302, n. {d) 9 A pp. Cas. 303 ; supra, p. 350.
 
 MARRIAGE CONSIDERATION. 35- 
 
 of Lords, Llic liiuiUition was "ami fur l.diuuf of tlic cl.il.lreu 
 procreated, or to be procreated, of tlie body of tlie said .Airs. Helen 
 Campbell or Mackie," as she shuuld appoint l,y Avritiu- and in 
 default equally among them. Lord Selborne, L.C, Iiehrthat the 
 principle of Ncwdcad v. Searles (c) and C/a>/lou v. IVilhm (f) 
 applied— namely, that such a limitation had been tli- subject of 
 a sti})ulation. 
 
 It is submitted that the only way to reconcile the various Li,ni,a,ionH in 
 contradictory decisions on this subject is to adoi.t the view hiid """■'■'"«« '^^""- 
 down by Lord Blackburn (then Mr. Justice Blackburn), and eon- ^f t«'-r/"'«. 
 curred in by Willes, J., in the Court of Kxcliequcr Chand)er, in 
 Clarke v. Wricjht {cj), and followed by Hall, \'.C., in Price v. 
 Jenkins (Ji). 
 
 According to the principles laid down in these cases, tlie I'cal 
 question is, what was tlie marriage Ijargain or contract ? The 
 marriage bargain is like any other mutual agreement in M-hich 
 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 l)Ound by all the terms, so tliat 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 limitation 
 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 of the Real michticn, 
 marriage contract. The problem for solution, then, is, what was J)e^\\*,'i,Vmar- 
 
 the intention of the i)arties to that contract ? r"&« contract 
 
 ^ in tend? 
 
 (c) 1 Atk. 2G5. Herhertson, 9 App. Cas. .003 ; ante, pp. 
 
 (/) 3 Mad. 302, n. 350, 351. 
 
 {(j) 6 H. & N. 819 ; Dart, V. & V. 5tli cil. {i Clurlc v. IIV/V//,/, G II. i: X. S03, 
 
 893 ; Baiiniiif;:, Marriage Sctlleiiiciits, 2, 3. per Blackburn, J.; ami nva D'dhts v. 
 (A) 4 L'b. U. 483 ; and sec Maclie v. li road mead, \ D. F. & J. 570. 
 (,:) Mallins V. Guil/oi/h', L. 11. 2 Ir. C. L. 10.
 
 358 
 
 THE EXTENT OF THE 
 
 The degree of relationship to either of the settlors of the person 
 whose interest under the settlement is challenged in this view is 
 only material so far as it affects the presumption that such limi- 
 tation was the subject of a bargain by some or one of the jiarties 
 to the contract. 
 
 r.arguin, when Tliat presumptiou will be made by the law in the case of a 
 in^^ire y limitation in favour of a husband, \\ife, or the issue of the 
 intended marriage (/). 
 
 Wben bargiiin In an)/ Other case, it is conceived, the onus of proving that the 
 aud by whom.' P^^'^^^"^^^' -^^^^^^^0^^ "^^'^^ ^^^^ subject of a bargain rests with the 
 person who seeks to uphold that limitation as made for value. 
 
 Presumption This presumption will be readily made in the following classes 
 
 readilv made : c 
 
 or cases : — 
 
 1. If limita- 
 tiou to a 
 person not a 
 relation of 
 grantor. 
 
 Whenever the limitation has been created in favour of a person 
 who is oiot a relation of the grantor of that limitation, it will readily 
 be inferred to have been the result of a bargain (w). 
 
 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 stipulated, 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 presump- 
 tion being made is that, without it, the appearance of such a 
 limitation in the settlement is difficult to account for. 
 
 This presumption may ho also made if the person in favour of 
 whom such lindtation is created is an absolute stranger in blood 
 to the person to whom the property does not belong (n) ; for the 
 difficulty of otherwise accounting for the limitation in the settle- 
 ment seems just as great in this case as if the limitation was in 
 favour of a collateral relation. 
 
 (/) Ante, p. .342 ; Jfaclie v. Jferhertsov, 
 9 App. Cas. .337 ; and see In re IfAiup- 
 hau, 15 Ch. L>. 242; Sweet, Conv. 2nd 
 cd. 9G8. 
 
 (m) Dart, V. & P. otii ed. 894, 5 ; 
 Clarhe v. Wrujh.t, G II. &. N. 877, per 
 
 Williams, .1. ; In re Uroicne's Entatc, 1.3 
 Ir. Cli. Rep. 295 ; JMlins v. Guilfutjle, 
 L. R. 2 Ir. C. L. 101. 
 
 (//) Clarice V. Wriijhl, G II. & N. 863, 
 per Blackburn, J.
 
 MARRIAGE CONSIDERATION. .'5 51) 
 
 IL has Ijecn consulcred that this prcsuinpLiuu may 1)C also made; 2. Wla-n 
 where the intended vnfc is the settlor, and the limitation wliich it I»m,i' limiutilia 
 is sou<']it to support as made for value is one in favour of /'C'' /Jl/'coliaJjal 
 collateral relations. relations. 
 
 Two reasons have heen assigned for this presumption. 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 stipula- 
 tion by the intended wifii on behalf of her collateral relations 
 may Ite 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 not make any provision for her collateral rela- 
 tions during her husband's life, so she might fairly be presumed 
 to have stipulated for the limitation in their favour upon a settle- 
 ment of her own property on her marriage (/)), and in this way to 
 have purchased the limitation. 
 
 The Married Women's Property Act, 1882, lias, however, Effect of 
 greatly lessened the importance of this presumption where the Women's 
 intended vjifc is the settlor, by enabling a woman married after |^'g7Te82. 
 1882 to hold all her property, both real and personal, as 
 her separate property, independently of her husband {q). The 
 husband has now no possible interest in, or right over, his 
 intended wife's personal property with which he can bargain ; 
 so that the class of cases in wliieli tliis presumptinn may be 
 applied becomes limited to those in whicli 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 in a cer- 3. When lin.i- 
 
 ^ ^ '' .... - tation to collft- 
 
 tain limited class of cases where the limitation is in favour oi ternis of settlor 
 collateral relations of the settlor— namely, in those in which the ]'/'"'""* ''** 
 
 imitatioDB 
 to issue. 
 
 (o) Dart, V. & P. 5tli etl. 894 ; In re In re. Culkn's Estate, U Ir. Cli. Ecp. 
 
 Cullen's Estate, 14 Ir. Cli. Kcp. 510 ; 010. 
 
 Gale V. Gale, 6 Ch. D. 144; and see (7) 45 & 40 Vict. c. 75, ss. 1 (1), 2. 
 
 Ithelly. Bcane, 1 Vcs. 215, coniniented (r) But see Shurnwr v. S&hjuld; 24 
 
 on in Price v. Jcnllu.^, 1 Ch. D. 489, Ch. D. 597; In re Cullcn's J'Jsta'e, 14 
 
 490. Ir. Cli. Rep. 510 ; nnte, pp. 292, 295. See 
 
 (^j) Clarice v. Wri^/hf, U. ^ N. S49 ; also Griflltii, 5tb ed. pp. 10. 59.
 
 360 i'ii^ EXTENT OF THE 
 
 limitation which it is sought to support is placed hdwccn two 
 limitatious, each within the consideration of marriage (s). 
 
 The ground of this has been said by Lord St. Leonards to be 
 that there is a limitation subseiiuent to that which is sought to 
 be supported, williin the consideration, whit li must be supported, 
 and that necessarily involves the support of the intermediate 
 limitation (t). The Court in such cases holds the whole of the 
 limitations to be effectual in order that it may give effect to that 
 which, being within the consideration, must have effect given to 
 it (/')• 
 
 This presumption cannot, in general (v), be made in the follow- 
 iug two classes of cases : — 
 
 No prcsumi)- If the husband is the settlor, or, in general, if the wife is the 
 Sinf ^'" settlor and has married since 1882 ; and the limitation is in favour 
 i.Ii-iiusbanclis ^^ collateral relations of the settlor. 
 
 settlor, or HOW 
 
 if wife 18 , . , 1 J 1 j- 
 
 scttlor; and The rcasou for tliis is the same m each case — namely, tliat 
 
 .Xwsof there is nothing to prevent tlie settlor from creating limitatiuns in 
 
 settlor. favour of collateral relations or otlier persons durinrj his or her 
 
 marriage out of property under his or her control ; since the 
 
 settlor is under no disability Ijy reason of marriage (w) ; and, 
 
 therefore, 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 \uluu- 
 tary, unless a special bargain for its insertion can be proved. 
 ]\loreover, in such a case it is difficult to see how the person to 
 wliom the property belonged can be considered to have purchased 
 any of the limitations of that property on Ijchalf of these col- 
 lateral relations {x). 
 
 (h) Siig. V. & r. 14th cd. 71G ; Ta re (v) Ante, pp. 358, 350. 
 
 ,%cr!(Ja)i'8J'Jgtat€,lL. II. It. 5i; C'!a>/tou {w) 45 & 4(3 Vict. c. 75, ss. 1 (I), 2; 
 
 V. Wlllon, 3 Mad. 302, n., S. C.6 M. In re Cullois JCdatc,Uh: Ch.Uf[).5H) ; 
 
 & S. GO ; Dart, V. & P. 5th ed. 890; Dart, V. & P. 5th cd. 804 ; CWc v. O'cde, 
 
 ante, pp. 354, .355. Cli. D. 152, 153. 
 
 (/) Starlqmolc V. Slaclqiook, 2 Con. & (.') Sec the judgment of Christian, J., 
 
 Law. 502 ; ante, p. 355. in Ju re JJroinie'ii J'Jxtalr, 13 Ir. ('U. Pop. 
 
 (m) l'cT]ld\\,y.C.,'m Price \. JlhUii.'i, 205; Williams, J., in ('lurl.c v. Wriijhl, 
 
 4 Ch. D. 488; and seethe judgment of II. & N. 877; and Heap v. Tuwjc/J 
 
 Lord Selbome, L.C., in Markle v. Jler- Hare, 104, per Turner, V.C. 
 hcrtson, 9 App. Cas. 335-337
 
 MARRIAGE CONSIDERATION. ."IGI 
 
 It will lie oLscrvud thai, in Llic; various cases wliicU t'Stal)li.sli 
 this proposition, the limitation iu favour of collateral relations of 
 the settlor is never followed hy a limitation to ]nTsoiis within thr 
 consideration of marriage ; and is freiiuently the ultimate limita- 
 tion. The question that has always arisen is whether this limita- 
 tion, and all other limitations subsequent to it, were or were not 
 void against a cnnlitor or suhsequent i»urrha.ser for value umler 
 the statutes of Elizabeth (//). 
 
 Upon the same ]3rinciple an ultimate limitation of the settlor's 2: riiimuio 
 property to himself or herself has been held to be voluntary ; Bculor'.""' 
 because there was no evidence of any bargain for it, as the other 
 party to the settlement could not have been assumed to baryuiu 
 for the insertion of such a limitation (■:;). 
 
 The remoteness of a limitation to a collateral lias lieen ailduced The rcMiu.te- 
 
 in some old cases as an argument in favour of its validity (a), lor limiiati-.n i.. a 
 
 this purpose Osgood \. Strode (b) is relied on, where all LoixOlac- )|,tmrr/v.i 
 
 clestield said was, in commenting on Jenkins v. Ko/rais (c), that fe'™"'."' iw*"!*- 
 
 '^ ,/ \ /> j,ort It. 
 
 the limitation there " could not well be intended to have been 
 made to cheat a creditor unless the person makiiKj the same were 
 then in debt ; the very remoteness of the limitation .... was 
 an evidence that such limitation was not intended to cheat 
 creditors." It was, in fact, a case of a subsequent purchaser (a 
 mortgagee), but Lord Macclesfield's words can only be taken to 
 apply to subsequent creditors, as to whom even a ro/^/j^ary limita- 
 tion (without fraud) will doubtless Ijc valid. That case can there- 
 fore liaidly be said to favour the proposition that the remoteness 
 of a limitation will make it valid against imox creditors or subse- 
 quent purchasers. 
 
 {ij) Sutton V. Chetwynd, 3 Mer. 2i9; Paul v. raid, 15 CIi. D. 5S0, S. C. 20 
 
 Sug. Prop. Ho. Lords, 153 ; Johnson v. Ch. D. 742. 
 
 Le(jard, 3 Mad. 283, n., S. C. 6 M. & S. {z) Barham v. Earl of Clarendon, 10 
 
 60; Cotterell v. Homer, 13 Sim. 50ij ; Ha. 120; Jhmeyv. Tr(ivcrs,H)lr.C. h. 
 
 fStacJqwole v. StacJqwoIe, 4 Dur. & War. Rep. 450 ; In re Browne s J-Jstatc, l'.> Ir. 
 
 320, S. C. 2 Con. & Law. 489 ; A'c/.e- Cli. Rep. 502 ; and sec Gibbs v. drad;/, 
 
 tcich V. Minninr/, 1 De G. M. & G. 170 ; 41 L. J. (N.S.) Cli. 103. 
 
 In re Cullen's Estate, 14 Ir. Ch. Rep. (a) Siiy. V. & I'. Mtli cd. 710; Dart, 
 
 602 ; Smith v. Cherrlll, L. R. 4 Eq. 3'JO ; V. & L\ 5th cd. 80'J ; and sec Stui>khil v. 
 
 Wollaston v. Irlhc, L. R. Eq. Bidlj, Pr. Ch. 224. 
 
 44; Be D'Angihau, 15 Ch. J). 2.'S; (i<) 2 P. Wras. 245, 255. 
 (c) 1 Lev. 150, 237, Hard. 395.
 
 362 THE EXTENT OF THE 
 
 Limitation to In lV7ntc V. Stringer (d), again, the limitation being subse- 
 after vc'stcd fincnt to a vested estate tail " which might endure for ever " was 
 estate tail g,^jj ^^ jl^g j^ point in its favour ; but in that ease there were other 
 
 formerly sup- •'• 
 
 ported. reasons for holding it valid — viz., notice to the purchaser and a 
 
 collateral security taken by him against this very limitation (^')- 
 
 Limitation in A limitation in favour of collateral relations or others in a 
 
 lat^c°ra'is"poo(l uiarriage settlement (which so far as the husband and wife are 
 
 when bargain eonccmed is Voluntary) may often be supported as made for 
 
 third person, value upon another ground. 
 
 That ground is tliat 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 (/). 
 
 Piocw Mltton. In Boc V. Miffon {rj) this subject was fully discussed. It was 
 was thus : John Hamerton, being seised in fee of lands, settled 
 them on his marriage with remainder, after those to the sons of 
 the marriage, to tvo of his hrofhers 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 v/as a good and valuable consideration to 
 support tlie limitation to the l)rothers ; the whole of the question 
 turned on the mother's joining in the settlement ; the friends 
 and relations of the intended wife must be supposed to say " M. 
 shall not marry your son unless you will give up or take off your 
 annuity from tlie whole of the lands and let it be charged upon 
 a part thereof." The motlier answers. " If you want my assist- 
 ance you .shall pay for it — i.e., you shall limit the estate to my 
 younger sons in preference and priority to the daughters of the 
 marriage on failure of issue male." Tliis is a good consideration 
 to John the son (and the quantum is not at all material). He 
 purchases his wife by his mother's concurrence. To the objec- 
 
 (d) 2 Lev. 105, 3 Kcb. 322 ; Dart, (/) JJeaj} v. To))f/c, 9 Hare, 90 ; ante, 
 V. & P. 5th ed. 899. pp. 2(32 ct scq. 
 
 (e) Sec ante, p. 180, note (/'). (//) 2 Wils. 356. Sec 3rd cd. 358, n. ; 
 
 JJi/ddlcton V, Kciii/on, 2 Vcs. Jun. 391.
 
 MARRIAGE CONSIDERATloX. 363 
 
 tioii tliat ilic ]iii8l);uul being seised in fee cuuld have made the 
 settlement without tlie mother, the answer is, tliat he cuidd not 
 have made a settlement agreeahle to the lady's friemls without 
 the mother's aid (A), 
 
 In ^Sicphms v. Trueman (?) a father, on the marriage of his sif],h,„ii v. 
 daughter, agreed to pay down £500 to whieh she was not entitled 
 till after his death ; and it was also agreed that certain real 
 estate helonging to the daughter sliould lie settled uw her and 
 her issue, with remainder to the father and his heirs. The 
 husband and wife died without issue. Lord Hardwicke decreed 
 specific performance of the articles in favour of the father's heirs, 
 on the ground that " for the precarious and I'emote interest 
 limited to the father the advancing £500 by him was a sufficient 
 consideration, although not mentioned for a cunsideration, l»ut 
 natural love and affection only ; for the whole must be taken 
 entire, the one part to inlluencc the other." 
 
 And where a mother joined in conveying to her son on his Jonc* v. 
 marriage a small estate out of which she was dowable, tins was 
 held sufficient to support a settlement of another estate of which 
 the father \vas seised in fee on the father for life, remainder io 
 the mother for life, remainder to the uses of the marriage (/.•)• 
 
 Closely connected with these last cases is a class of cases Limii.-xCnns in 
 
 which partakes of the nature of family settlements (/) as well tcmU snj)- 
 
 as of ordinary marriage settlements, {„ family 
 
 settlciiii-iit!*. 
 
 This is the case where on the marriage of a son the family 
 estates are resettled ; where the father as tenant for life and the 
 son as tenant in tail agree to modify tlieir respective interests in 
 the settlement. 
 
 Limitations in favour of collatcrai relations of the son, one of 
 the settlors, 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 (/«). 
 
 (A) Sec Sir R. P. Arden's comments on & Law. 502 ; rakcrtoft v. PuJrcrtoft, 18 
 
 this case in Brmcn v. Carta; 5 Yes. 877-8. Yes. 84, <J2 ; Jenllng v. Keymlg, 1 Lev. 
 
 (0 1 Yes. 74. 150, ante, p. 345 ; 0^;/ood v. ,Stro<lc, 2 
 
 (k)JoHes\. honller,! Cox, 28S. P. Wms. 250, ante, v 341;.W v. 
 
 (/) Ante, pp. 2G3 et scq. AW., 9 Mod. lOG ; Dart, Y. & 1 . 5lh i J. 
 
 (w») b'laclqmolc v. tSladjwok, 2 Con. SI'S.
 
 3G4 THE EXTENT OF THE MARIUAGE CONSIDERATION. 
 
 So Lord Chief Justice CoekLurn in Clarke v. lFri(/Jd {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 entirely 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 estate, he has 
 a right to stipidate 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 np his 
 existing life estate, and resettle the estate " (n). 
 
 (») 6 H. & N. 870.
 
 CHAPTER V. 
 
 POST-NUPTIAL SETTLEMENTS AND ANTK-XUl'TLU, A(;i;KI' MKXTS. 
 
 To settlements made after marriage of course tlie consideration P<.ht-mipiiHl 
 of the marriage does not extend ; so that, unless there are other ?,' "!!;;;.'";.'/" 
 considerations to support them, they are regarded as ])urely ^•"'""""•}- 
 voluntary (o). 
 
 An additional portion brought by the wife after marriage is a wi.at consi- 
 sufficient consideration, both as against creditors and purchasers, sup^'r";hcni. 
 on which to found a post-nuptial settlement by the husband on Additional 
 her and her children (^) ; and in like manner an agreement by ''°'^"°"' 
 the friends of the wife to settle will be sustained, if made in 
 consideration of a gift by the husband's friends {q). 
 
 On this point Lord Hardwicke said (/■) : " It is admitted, 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 pay- 
 ment 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 settlement." 
 
 So, also, in Wliecler v. Cdnjl (.s), Lord Hurdwiekt' laid il dnwn Advance l.y 
 as a general princii)le, that "If after marriage her (tlie wife's) *'"^ person. 
 father, or other person, in consideration of the husband making a 
 settlement, advance a sum of money, such a settlement will be 
 good and for valuable consideration ; " and a refusal by a trustee 
 
 (o) Wheeler v. Caryl, 1 Amb. 121; Yaa.Kj; Ramsden \. IIiillo)i,'l\cs. :^m\ 
 
 Wardenw Jones, 2 De G. & J. 70 ; ante, Lanoii v. Athol, 2 Atk. 444-(J ; Maguire 
 
 p. 342. V. Nicholson, Beatt. 5'J2. 
 
 [l)) Colvile y. Farl-er, Cro. Jac. 15S, (q) Jlroicn v. Jones, 1 Atk. 188; 
 
 Prec. CIi. 101,425 ; C'ove7itrj/\. Coventry, Tweddle v. Atkinson, 1 B. & S. 393. 
 
 Gilb. Rep. IGO ; Jones v. Marsh, Ca. t. (/•) Broken v. Junes, 1 Atk. 190. 
 
 Talb. (FoiT.) 04; Ward v. Shullet, 2 (.s) 1 Amb. 121.
 
 3GG rosT-NurTiAL settlements 
 
 to pay the wife's money without a settlement will support the 
 settlement (/). 
 
 Amount And, as in analogous cases, tlie amount of the additional portion 
 
 immaterial. .^ ^^^^ material, unless the inadeciuacy is so great as to induce 
 the presumption of collusion {u). Where the (piestiun was 
 whether, in a settlement made after marriage, hy which a very 
 large estate was settled, and the consideration whereof was an 
 additional portion of £100, the settlement should not he considered 
 as voluntary, the portion being so much out of proportion to it. 
 Lord Talbot said " he would not weigh considerations 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 doc- 
 trine of voluntary estates " (v). 
 
 Gift to wife in And an annuity granted to a wife by her lmsl)and is sufiicient 
 considc-i-ation consideration to support as against the creditors of the wife's 
 
 (it an annuity ' -^ ^ ° /> i i i 
 
 to her. father a grant l)y him to the wife of an annuity fur her sole and 
 
 separate use (u). 
 
 Will release or It is an undecidcd point whether, under the combined effects 
 disclaimer of ^^^ ^|^g ( "onveyaucing Acts, 1881 and 1882 (w), and the Married 
 mrrried^ Women's Property Act, 1882, a woman married after 1882, or, if 
 rpporVpost- married before 1882, only as to property wliidi lias accrued to 
 m"entf '^"^°' li^r after that date, can now release, extinguish., or disclaim a 
 
 power over real or personal property, except as she could have 
 
 done before 1883 (x). 
 
 It would, however, appear that she can do so l)y the indirect 
 means of contracting or covenanting not to exercise the power (//) ; 
 and so may, in effect, release, extinguish, or disclaim it. 
 
 If such married woman can now release, extinguisli, or disclaim 
 
 (t) Moor V. Ihjcaidt, IVc. Ch. 22 ; (.') 45 & 4(3 A'ict. c. 75, f-s. 1, 2, 5, 24. 
 
 Broicn v. Jones, 1 Atk. 188 ; Sug. \. & 1'. Compare tlie use of " dispose of" in ?, & 4 
 
 14th ed. 718 ; ante, pp. 29G, 297. Will. 4, c. 74, s. 77. Lu.sh, H. & W. O'J ; 
 
 lu) Ex luirte iJrcn/rotI, 2 (ilyn & .1. Criilith, 5th cd. 28 ; "Wolst. C'onv, :3rd od. 
 
 283 ; ante, pp. 245, 247. 7 ; Eversley, Dom. llel. 144-145; K. & E. 
 
 (»') Case cited by Wilmot, C..T., 2 Prcc. 2nd ed. vol. 1, 00. 
 
 Wil.x. 3rd ed. 358*. Probably Jonrs v. (//) 45 & 4« A'ict, c. 75, s. 1 (2) ; 
 
 Mitrxh, Ci\. t. TA\h. (Forr.) GA. (iriilith, 5th ed. lG-17; Lusli, H. & 
 
 («;) 44 & 45 Vict. c. 41, 8. 52 ; 45&40 W. GO; Ii<aac v. Jluyhes, L. li. l^i. 
 
 Vict. c. 39, p. 13. 5''1-
 
 AND ANTE-NUPTIAL ACiUKKMKXTS. 3G7 
 
 a power, without the coiicim-cnc.^ (.f ]m- 1ius1.;ui(.1, then such 
 release, extiuguishuieut, or disclaimer hy Iicr will uo lonj,'or aviiil 
 as a consideration to support a p()st-iuii)tial sottleriicnt d' pn.i.erfy 
 by her; unless she contracts or covenants for value n<jt to 
 exercise that jjower, 
 
 A post-nuptial settlement, of real estate, mi-lit also lurve been lUrg^iin bo- 
 supported hy i)roof that there was a bargain for it, between husband Iri'w'r'"""^ 
 and wife, l)y wliieli they in some degree niudiljeil their existiii''' 
 
 interests (:). 
 
 It would appear that if a woman has married after 1882, or if Whetl.er 
 slie has married before that date and her property, whether real n!"rl.'j!"j'''* ''^ 
 or personal, has accrued to her after that date (a), tliere cannot be ''■","""' "^"' 
 
 , . voluntary. 
 
 a bargain between her and her liusl)and as to her property so as 
 to support a post-nuptial settlement of real estate by her a^'ainst 
 .a subsequent purchaser (a) ; or to make a settlement of real or 
 personal property by her a settlement for value. Her husl)and 
 has, under that Act, no right over or interest in her i)roperty with 
 which he can bargain, unless it be the bare chance of ao(|uiring 
 her personal property on her death intestate (l). His right to 
 curtesy will not, it is conceived, support such settlement against 
 a subsequent purchaser (c). 
 
 But a post-nuptial settlement will not be made good by such Must be bona 
 considerations, unless all the circumstances appear fair and free consideration 
 from doubt (d), and not merely colourable (c) ; and such a settle- '''■■''''■ 
 ment by a husband must be in consideration of a sum of money 
 to which he would not have been entitled unless he hail 
 consented to the making such a jointure ; for if he make a 
 jointure in consideration of money he was then entitled to, it is 
 voluntary (/). 
 
 A settlement made on a re-celebration in England of a marriage Scotch 
 
 niarTi:igo. 
 
 {z) Teasdale v. Braithoaite, 4 Ch. D. (c) Griffith, otli ed. 10, 59; >%nrnmr 
 
 85, S. C. 5 Oil. D. C3() ; In re Foster and v. Sedcjwiclc, 24 Cli. 1). 597 ; ante, j.p. '.'92, 
 
 Lister, G Cli. D. (37 ; Shunnur v. >Scdf/- 295. 
 
 u-ick, 24 Ch. 1). 597; ante, pp. 289 et (r/) Ward \. ShaUct,2 Vos. IC 
 
 geq. {e) Jiussel v. Jhtmmond, 1 Atk. KJ ; 
 
 (a) 45 & 4G Vict. c. 75, .s.s. 2, 5. In re Pearson, 3 Ch. I). 8U7. 
 
 (6) "SVolst. Conv. 4lii cd. 8; but ficc (/) Per Lord King in Gardiner v. 
 
 Everslcy, Dom. Eel. 181-182. Fainter, Sel. Ca. Ch. G5.
 
 3G3 
 
 POST-NUPTIAL SETTLEMENTS 
 
 The " moral 
 oblijration " of 
 providing for 
 wife ami 
 thilJieu by 
 eettleiuent. 
 
 previously performed in Scotland 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 settle- 
 ment on his wife and children is the performance of a moral 
 obligation (/<). It might be ihought, liowuver, that, unless it be 
 made for providing against unforeseen and unavoidable accidents, 
 a man would perform his duty to his family more effectively and 
 conscientiously by so living as to avoid becoming embarrassed and 
 getting liis property encumbered by debts, than l)y 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). 
 
 In favour of When a post-nuptial settlement is made on tlie valuable con- 
 miptTarseu°e- sideratiou that the husband has given up an estate he liad in his 
 v-iTue treated"^ wife's property, a question may arise, in favour of whom can this 
 as such? settlement be treated as fur value ? 
 
 Of course it will treated as for value in favour of the husband 
 or wife. 
 
 As it is not supported by the consideration of marriage, it will 
 be considered as voluntary so far as relates either to then exist- 
 ing or to the future children of the husband and wife (Z). 
 
 Post-nuptial 
 settlements 
 founded on 
 agreements 
 in writing 
 before 
 marriage 
 wlien for 
 value. 
 
 Although a post-nuptial settlement is of itself voluntary, an 
 agreement reduced to writing before marriage is a contract 
 on valuable consideration, and as such can be enforced in 
 equity (/). 
 
 Post-nuptial settlements, therefore, made in pursuance of and in 
 accordance with such agreements are as valid as if made before 
 the marriage took efiect (m), even although tlie settlenu'.nt contained 
 no recital, nor any notice of the ante-nuptial agreement (n) ; 1)ut 
 
 {(j) Ex parte Hall, 1 V. & B, 112. 
 And see J)ohhi/n v. Adams, 7 Ir. Ch. I'JI] ; 
 Adams v. Adams, 8 Ir. ("h. 41. 
 
 (/() Sug. Pow. 8tii ed. 049; sec Elli.'s 
 V. Klmmo, LI, & (i. t. Sugd. .333; J/ol- 
 loicaij V. JTeadhigton, 8 Sim. 324 ; Muvre 
 V. Crofton, 3 J. & Lat. 438. 
 
 (i) Sec Taylor v. Jones, 2 Atk. COO. 
 
 (/.) Oreen v. Pcikrson, 32 Ch. i). Ii5. 
 
 (/) Gor'uifj V. Nash, 3 Atk. 180 ; Bold 
 V. lluicldnson, b De G. M. & G. 558. 
 
 {m) llaJph JJovei/s Cane, 1 Vent. 193 ; 
 Jiandall v. Morgan, 12 A'es. 74, Sug. 
 II. L. 53 ; JJattershce v. Farriiujton, 1 
 Sw, 100, 1 Wils. Ch. 88; Deireii v. 
 lUiyntun, East, 257 ; J!och v. Dude, 
 MS. 1709, post, Appendix No. XIII. 
 
 («) Fcrrurs v. f'licrrii, 2 ^'e^n. 384.
 
 AND ANTE-NUPTIAL AOREEMENTS. 3GD 
 
 a settlement not in pursuance of the articles is vdluntary (o). 
 Bat where the aijreenient was hy the Inishand to make a jninture 
 settlement on liis witV' (wiihoul any nirnlinn of issue), ami a 
 settlement was made on the husl)an(l fur life, remainder to wife 
 for life, remainder to their tirst and other sons, it was held that 
 the settlement, though not exactly in accor(hnice with the articles, 
 was not voluntary or fraudulent at^ainst creditors (]i). 
 
 So also in a case (q) in Ireland hcfore Lord Manners, wlierc 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 ])rineiiilu 
 that the Court will not, if tlie consideration be valualilo, closely 
 scrutinize its adequacy. 
 
 Eeferring 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). 
 
 The agreement before marriage must be such as a (Jourt of Agreement 
 equity could have enforced ; so that instructions for a settlement biuding. 
 taken down in writing from all the intended parties to the settle- 
 ment liy a lawyer, but not signed, will not be sufficient (.s) ; but 
 a letter from a solicitor of one party stating what he inten<ls to 
 do may be binding on that party (t). 
 
 An ante-nuptial agreement liy a man to make a settlement on 
 his wife was enforced, although the letters which contained tlie 
 agreement were lost, such loss having been proveil unforeseen 
 and unavoidable («)• 
 
 {o) SenJiou.se v.i:ark,l \mh.2S5-8. {s) JJawdes v. Amhitrsf, Vtcc. Cli. 
 
 fiec also Farttjn y. lioherts, 1 Amh. ?Ai , 402; nroinismith y. GUborne, 2 Stra. 
 
 Lefjg V. Goldwire, Ca. t Talb. (Forr.) 738; Aijliffe v. Tranj, 2 V. Wras. Ca: 
 
 20; Jason v. Jervis, 1 Vern. 284-280; Warden v. Jones,'! De CJ.& J. 70. Ami 
 
 Doe V. Jiowe, 4 Bing. N. C. 737 ; Gates see Suffolk v. Greenrill, Ncls. lo-lO, in 
 
 V. Fabian, 19 W. K. Gl. which a verbal agreement {More the 
 
 (p) Brunsden v. Stratton, Free. Ch. Statute of Frau(]s\ not being properly 
 
 520; and sec 3Iagidre v. Xlcholsun, established, was lield of no avail. 
 
 Beatty, C. C. 592. (0 Walford v. Graij, 11 Jur. (N.S.) 
 
 ((/) Maguire v. Xicholson, IJeatty, 437. 
 
 C. C. 592. («) Gilchrist v. Herbert, 2u N\ . R. 348 ; 
 
 (r) In Blandford v. Marlborough, 2 but see Vincent v. Vincent, Times Rep. 
 
 Atk. 545. (1880), 814. 
 
 C B
 
 370 
 
 POST-NUPTIAL SETTLEMENTS 
 
 Trowell v. 
 JS/ieyitoti. 
 
 Post-nuptial 
 settlements 
 founded on 
 
 In Ti'Ou-cU V. Shcnton {v) an infant, engaged to be married, by 
 letter promised to give seven specified liouses 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, because 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 Tenterden's Act {iv). 
 
 There can be no doubt that a post-nuptial settlement proved 
 to have been made in pursuance of and in accordance with a 
 ante-nuptial pawl agreement before marriage, would not have been voluntary 
 
 parol agree- Jr o o 
 
 rnents before under either of these statutes of Elizabeth hrfore the Statute of 
 
 Statute of 1 / \ 
 
 Frauds. Frauds {x). 
 
 Griffin v, StanlLopc {ij) is tlie first reported case. There Sir 
 E. Griffin, before his marriage with Lady Stowell, promised " to 
 assure to her £1000 per annum for her jointure, his estate being 
 then worth £12,000 per annum ; wherefore she, reposing con- 
 fidence in his promise, married with him before any assurance 
 or covenant in writing whatsoever." After the marriage 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 jointure 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, 
 although there was not any mention of any lease to be made, yet 
 it was grounded on good consideration and not fraudulent." 
 
 Bovt/s Case. And tlie second resolution in Sir Ilalph Bovys 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 might avoid it ; and if tliere had been but 
 
 {v) 8 Ch. D. 318. 
 
 \w) 9 Geo. 4, c. 14, 8. 5. 
 
 (x) 29 Car. 2, c. 3. 
 (y) Cro. Jac. 454. 
 
 (2) 1 Vent. 194.
 
 AND ANTE-NUPTIAL AGREEMENTS. .'571 
 
 a verbal agreement for sucli a settlement it would have served 
 the turn." So where (a) it was proved that an infant had, on 
 his marriage, made a i^romise to settle his estate when he came 
 to age upon himself and his issue, this was held a suflicient con- 
 sideration to avoid fraud, tliough, being an infant, he was not by 
 law compellable to perform such a promise. 
 
 Shortly after tliis the Statute of Frauds (//) was passed, which, Statute of 
 by the 4th section, enacts that "no action shall be brought ^ "'"''''' *'■'''■''■ 
 .... whereby to charge any person upon any agreement made 
 upon consideration of marriage, .... unless the agreement upon 
 which sucli action shall be brought, or some memorandum or 
 note thereof, shall Ije in writing and signed by the party to l»c 
 charged therewith, or some other person thereunto by him law- 
 full authorized." 
 
 The law with respect to post-nuptial settlements founded on Post-nnpiiul 
 parol agreements before marriage, by this statute was materially roiindej\"n'* 
 altered ; and the chief question to be considered in cases arising n'"<'n"P"a' 
 
 ' i ° juirnt auTfc- 
 
 subsequently is, whether an ante-nuptial parol promise can, by ","""**""'"■' 
 any transactions after marriage, be taken out of the Statute of Frauds. 
 Frauds. 
 
 If the post-nuptial settlement is within the provisions of that 
 statute it becomes (in the absence of consideration other than the 
 past consideration of the marriage already solemnized) a meru 
 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 tlmt a part performance Does .loctrine 
 
 11-1 "•" P^rt por- 
 
 of a verbal contract by one of the parties to it may exclude the fonuance 
 operation of the Statute of Frauds and enable the Comt to enforce 
 specific performance of a verbal agreement {d). 
 
 (a) Lavender v. J]lad-stone, ?, Keb. {<■) Loeffes v. Lewen, Free. V\\. .170. 
 
 526. And see White v. Drahe, 3 Keb. 6 ; See ante, p. 305; post, pt. v. cb. iv. 
 but see now TrowcU v. Shcntov, 8 Cb. ]>. (d) Potter v. Potter, 1 Ves. •J41 : Fn-. 
 
 31S, supra, p. 370. Sp. Pf. 2nd ed. 252-3 et scq. 
 
 {h) 29 Car. 2, c. 3. 
 
 D r> 2
 
 372 
 
 settlemt:xtr after makriage 
 
 npply to parol 
 antenuptial 
 ngrecniLiit V 
 
 Marriage 
 alone is not a 
 j)art perform- 
 ance. 
 
 But other acts 
 may be. 
 
 A settlement executed when its execution could have been 
 compelled is no longer voluntary or fraudulent under the statutes 
 of Elizabeth {c). 
 
 Are there, ihen, any circumstances under which this doctrine 
 will apply to these parol agreements before marriage ? 
 
 Marriage alone, it has been frequently determined, is not a 
 part performance of such an agreement, made in consideration of 
 it (/). Thus, it was argued in Montacute v. Maxiocll ([/), and 
 allowed by Lord Chancellor 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 ; therefore, to say 
 that the marriage was an execution which should render the 
 promise good was quite frustrating the statute." In Dundas v. 
 Dutens (h) Lord Thurlow said : " If there is a 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 Zasscnce v. Ticrncy (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. Catoii (I) it was said by Lord Cranworth, L.C. : 
 " That marriage in itself is no part performance within the rule of 
 equity is certain. ]Marriage is necessary in order to bring a case 
 within the statute, and to hold that it also takes the case out of 
 the statute would be a palpable absurdity." 
 
 liut though marriage alone is not a part performance of a verbal 
 promise, any acts or transactions which, apart from the question 
 of the marriage, would suflfice to uphold the contract on the ground 
 
 (e) Ante, p. 249. 
 
 (/) laijlor V. Beech, 1 Yes. 297; 
 Sptcer V. Hplcer, 24 Beav. 3G5 ; Bavdes 
 V. Amhurst, Prec. Cb. 402. See also 
 HammersUy v. l)e Biel, 12 CI. & Y. Ab ; 
 liurcome v. Plnnujer, 3 De G. M. & G. 
 hi 1 ; Warden v. Jones, 23 Beav. 490, S. C. 
 2 ])e G. & J. 7G, 84; Caton v. Caton, 
 
 L. IJ. 1 rh. 137, S. C. L. R. 2 IT. L. 
 127 ; Truicdl v. Shenton, 8 Ch. D. 324, 
 320. 
 
 {(j) 1 P. Wms. 018. 
 
 (//) 1 Ves. 199. 
 
 (/) 1 Mac. & 0.5.51,571-2. 
 
 {k) L. R. 1 Ch. 137, S. C. L. R. 2 
 H. L. 127.
 
 AND TAIIOL AGREEMENTS BEFORE. 373 
 
 of part perfoniuincu, will imL he Lhu less elll-cLivu because luarriiige 
 has intervened (/). 
 
 Thus in Warden v. JoncH (in) Lord ("ranw(.il]i, L.C, said: " It 
 was hardly argued lliat luairiagc uas a part ]icrf(. nuance. That 
 is clearly not so. Wlicrc. indeed, one of the contracting parties 
 agrees, as the consideration fur the marriage, to do sonictliiii'f moro 
 than marry, as to settle an estate, and in consideration of that 
 promise the other party, either acting for her or liini, contracts to 
 make a settlement, then the settlement made Ity the one c(jntract- 
 ing party is a good act of part performance." And in support of 
 this his Lordship referred to Hammcrslcj/ v. De Bid (ii), where an 
 agreement having heim entered into by a lady's friends on ln-r 
 marriage, and reduced to writing but not signed, the execution liy 
 the husband of a settlement after marriage, in accordance with the 
 agreement, was held by Lord Cottenham, L.C. (o), to l)e an act of 
 part performance ; and on appeal the application of the Statute 
 of Frauds was held excluded on the same grounds («). 
 
 In Snrcome v. Pinnifjcr (2j) a fatlier on the marriage oiSurromev. 
 his daughter made a verbal promise to the intended Inisband 
 to give them a certain leasehold house, &c., on their marriage, 
 on the faith of ■which promise the luisband nuirrictl, and 
 after the marriage his father-in-law gave him possession of the 
 property, directed the tenants to pay him the rent, and lianded 
 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 (y), 
 the question was, whether the purchase-money belonged to the hus- 
 band or to his father-in-law's estate ; and the promise being proved 
 it was held that there was a part perfornumce of it independently 
 of the marriage which would take the case out of the statute. 
 
 In the case of Unghy v. Vnglcy (r) a father, in consideration Unciley t. 
 of the marriage of his daughter, verbally promised his intended 
 
 (0 Fry, Sp. Pf. 2na cJ. 2G7, 208. {l>) 3 De Ci. M. & (i. 571 ; Cooper v. 
 
 (m) 2 be G. & J. 7(3. Worviahl, 27 Beav. 20(3. 
 
 {n) 12 CI. & F. 45. (7) 8 & 9 Vict. c. 18. 
 
 (0) 12 CI. & F. 61, n. ; .and see Goldi- (r) 4 Ch. D. 73, S. C..') Cb. D. 887 ; 
 
 rjitf V. Totrnsend, 28 Beav. 41."). and see Alderson v. MaddiM0)i,7 «.>. H. !'• 
 
 174, 180.
 
 Part perform- 
 ance not by 
 party to be 
 charged. 
 
 Ordinary rules 
 .ipply when 
 parties are 
 married. 
 
 PAROL ANTE-NUPTIAL AGREEMENTS 
 
 sou-in-law to give his daughter a particular leasehold house on 
 her marriage as a wedding present. Immediately after the 
 marriage the father put his daughter and son-in-law into posses- 
 sion, 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 clain) to tlie house by the father's admhiistrator, 
 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 hi/ the ixirty to he charged will not 
 do (.5). 
 
 " The ground on Avhich the Court holds that part performance 
 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 instance by taking possession of land and expend- 
 ing 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 allowed the person contract- 
 ing with him to act and expend 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 })erformance {u). 
 
 It appears then, that, so far as the doctrine of part performance 
 is concerned, parol agreements in consideration of marriage 
 become, after marriage, subject to the same rules {y) as other 
 parol agreements on valuable consideration unconnected with 
 marriage. 
 
 In order to set up an agreement Ity taking advantage of acts of 
 part performance, the agi-eement must be of such a nature that the 
 Court would have had jurisdiction in respect of it if it liad been 
 
 (») Caton V. Caton, L. \\. 1 CIi. at p. 148. 
 {() Per Lord C'ranworth, in Caton v. (m) S. C. ; and bcc Humphreys v. Green, 
 
 Caton, L. K. 1 Cb. 137, S. C. L. R. 2 10 Q. R. D. 148. 
 II. L. 127. (r) Fry, Sp. I'f. -.'iid cd, 252 ct seq.
 
 AND POST-NUrTIAL SETTLEMENTS. 375 
 
 111 writing (w). For instance, it is clear that there can no more 
 be a part performance of a parol agreement whicli is incomplete, 
 where marriage is the consi(lerati<:n, tlian in other cases (;/;). 
 
 The question, wlicther a post-nuptial settlement, or a signed Cnn po«t- 
 note or memorandum in writing, will sui-port a pxml ante- Sttulp'' 
 nuptial agreement, so as to take it out of the Statute of Frauds '"'""( I"*- 
 
 nuptial iigrcc- 
 
 (and therefore, as a settlement for value, make that post-nuptial ">fui? 
 settlement good against creditors or subsequent purchasers), is one 
 of some dil^ticulty. 
 
 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 the very early cases (?/) on the subject, which, with the 
 exception of 3foore v. Hart (z), related to personal estate, it has 
 been held that a signed written admission after marriage took a 
 parol agreement before marriage out of the statute, and therefore 
 supported the post-nuptial settlement against creditors or subse- 
 quent purchasers. 
 
 In the case of Montacutc v. Maxwell (a), a husband before ^fontaalU r. 
 marriage promised his intended wife that slie should enjoy all ' '"' 
 her own estate (a considerable personal estate) to her separate 
 use, but delayed executing any settlement till after the marriage, 
 when, on her pressing him by letter to fulfil his promise, he 
 wrote in answer, declaring in general terms that it was reason- 
 able 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 
 
 (?") Fry, Sp. Pf. 2ncl ed. 257, 258; and v. Blosse, 2 Vent. 361; Coles v. Mmcal, 
 
 see Alderson v. Maddison, 7 Q. B. D. 174 ; 2 \'ern. 34 ; Wunk/urd v. FvlherUi/, 2 
 
 HumpJuri/s V. Green, 10 Q. B. D. 148. Vcrn. 322 ; Jlodijson v. Ilutchcmon, 5 Vin. 
 
 (.>•) Thjnne v. Glengall, 2 H. L. C. Abr. 522, pi. 84; Anon., Prec. Ch. 101. 
 
 131, 156-8; Suffolk v. Grecnvill, Nets. (s) 1 Vern. 110. 
 
 15-16; Spurgeon v. Collier, 1 Eden, 55; {a) 1 P. Wms. filS. In V Estrange v. 
 
 post, p. 376. Ji'ubinson, 1 Hog. Ir. P.cp. 202, this case 
 
 (//) Gale V. Linda, 4 Vern. 475 ; Bird was said to be one of gross frond.
 
 376 
 
 PAROL AXTE-NUPTIAL AGREKMENTS 
 
 t'^purgeon v. 
 Collier. 
 
 Parol agree- 
 ment not 
 proved. 
 
 marriage is sufficient consideration to support a settlement made 
 agreeable to it after marriage. This has been frequently deter- 
 mined. 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 marriage " (l). 
 
 Sjmrrjcon v. Collier (c) is the first case upon real estate since 
 the Statute of Trauds {d). In that case, 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 considera- 
 tiun of the marriage had. Lord Xorthington 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 that it was made 
 in consideration of an agreement M'ith 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 subsequent settlement in consequence thereof to proceed 
 
 on a valuable consideration In the first place, here is no 
 
 agreement or promise proved. It is admitted that since the 
 statute, though such promise w\as made, Dr. A. could have no 
 remedy. Then the settlement was voluntary, for it could not 
 
 be compelled 13ut 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 relation might make such 
 promise, of which an execution never could be compelled against 
 the promisor, and the moment his circumstances failed he would 
 execute a settlement pursuant to his promise and defraud all his 
 creditors." 
 
 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 contrivance for fraudulent purposes that 
 the Court would liuld 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 valuable considera- 
 tion, can be set aside if it is fraudulent in effect (c). 
 
 (h) See Taijlor v. Beech, 1 Vcs. 297. 
 (c) 1 Eden, 55 (a.i>. 175S). 
 
 {(I) 15ut see Moore v. Hart, 1 \'crn. 201. 
 {r) Ante, pp. yy, 80.
 
 AND POST-NUPTIAL SETTLEMEXT.S. 
 
 This case, liowcver, is not an actual decision upon tlie point, 
 for the parol agreement was not such as wr.ul.l, if it liail been 
 in writing, have been executed, and the post-nuptial settlciuenL 
 was not in pursuance of an agrceiucnt ht-foro marriage (/). 
 
 In Diindas v. Dukm {g), wliich was the leading case and an Duixdni 
 express decision on the point, the case was thus : Harriet Dutens, "^"'''"''• 
 who was entitled under her father's will to certain moneys and other 
 personal property, as her share in tlu' residue r.f his i.roperty, 
 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 recitin^ 
 the marriage, 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 (jf 
 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 survivor of them to 
 their children. 
 
 Lord Thurlow, L.C., said {h) " he could not conceive that a 
 settlement made after marriage in pursuance of an agreement 
 before marriage, though only parol, could ever be reckoned 
 a fraudulent settlement; tliat 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 therefore clearly of opinion that the settlement Wiis in itself 
 valid." 
 
 These, according to Cox, were the grounds of the decision ; 
 but according to the other report (/) the decree was chiefly 
 founded on the fact that the pro])crty was stock and choses in 
 
 (/) 1 Eden, 55, 01, 63; but sec Cox, as counsel for the plaiiililT, is probably 
 
 Throop, Verb. Ag. (Amer.), 718. the more accurate. In L'Entrange v. 
 
 {g) 2 Cox, 235, 1 Yes. Jun. 199. Sec liohinsov, 1 Hog. 202, it is called a case 
 
 Shaw V. JaJcemav, 4 East, 207, 1 Eden, of gross fraud. 
 2nd ed. 02, n. Tliis case is differently re- (h) 2 t"ox, 24i). 
 
 ported in 1 Yes. Jiui. 199; tbe version of (/) 1 Yes. Jun. 198.
 
 378 PAROL ANTE-NUPTIAL AGREEMENTS 
 
 action uhicli could not be taken in execution by creditors, and 
 therefore a settlement of it could not affect their rights. ]'>ut 
 there is a circumstance Avhich, in Lord Thurlow's mind, may 
 liave given great force to the recital — viz., that there was a com- 
 bination between the creditors and the husband against the child 
 of the marriage, so that the recital in the settlement, to which 
 the husband M'as a party, of 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 (/.'). 
 
 The value of this case as an authority upon the point is 
 "reatly lessened by the facts that the decision could be supported 
 on other grounds ; and that the two reports of it differ so 
 greatly. 
 
 Bandall v. Sir W. Grant, in his judgment in Eandall v. Morgan (/) — a 
 
 Morgan. settlement of personalty — expressed an opinion 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 agreement before marriage is not fraudulent 
 against creditors, provided the parol agreement had actual 
 existence. But I do not know that the point has been directly 
 decided. It was discussed in Dundas v. Dutcns (m), but Lord 
 Thurlow, 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 (?i), she\vs that 
 the decision 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 fraudulent, independently of the 
 other point against the plaintiff ; and this cannot be said to be 
 overruled by the above dictum of Sir W. Grant (o). 
 
 It has been held by Lord Langdale, M.R., in Dc Bcil v. Thomp- 
 
 (k) Recitals in a deed are generally (/) 12 Ves. Jun. C7. Sir W. Grant 
 
 conclusive evidence against parties to the had only the report of Vesey before him; 
 
 deed. Marchioness of Anuandale v. th;it of Cox was not then publinhed. 
 Harris, 2 V. Wins. 4.T2 ; Battcrsbee v. (m) 2 Cox, 240, 1 Ves. Jun. 198. 
 
 Farrin'f/ton, 1 Sw. 113, post, p. 383 ; (h) 2 Cox, 2.35. 
 
 Lainson v. Tremerc, 1 Ad. & E. 792 ; (o) See Ramsdcn v. Ilylton, 2 Ves. 
 
 CarjKnter v. Buller, 8 M. & W. 209 ; see 304. 
 post, pp. 383, 384.
 
 AND POST-NUPTIAL SETTLEMENTS. 379 
 
 son (p), and by Lord Cotteuham, L.C., in llie same case on appeal (//), pe hcil v. 
 that a written memorandum made after the marriage of a parol '""'^"°"- 
 agreement entered into l)efore the marriage would he sullicieiit 
 within the statute {v). 
 
 Lord Cottenliaiu, L.C., however, in llir Appeal Court, pointed out 
 that the case did not rest solely on that grouiul, foi- that there 
 was in the dealing between the parties an important act by the 
 intended husband, in execution of the proposed arrangement, 
 which amounted to part performance (.s). In the IIousu of 
 Lords the defence on the ground of the Statute of I-'rands was 
 abandoned, and therefore, it is thought, the case on that point, at 
 the best, can only carry with it the authority of the Court of 
 Appeal ; and in that Court the case was, to some extent, regarded 
 as one of part performance {t), and, from the report. Lord Cotten 
 ham, L.C., seems to have merely intimated his opinion in favour 
 of supporting a parol agreement by a subsequent promise in 
 writing. 
 
 This view was also followed in Baiuumih v. Young (x) by Sir liarkuorthv. 
 E. T. Kindersley, V.C, who, after carefully reviewing the autho- 
 rities, said that all these opinions must, he thouglit, outweigh Sir 
 W. Grant's doubts. In that case the plaintifl', 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 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 cliildren." 
 The Vice-Chancellor considered this sufficient to uphold the agree- 
 ment as ante-nuptial, and to Lake it out of the Statute of 
 Frauds (v). 
 
 (j)) 3 Ikav. 469. {') Supra, p. 373. 
 
 (y) Sub noni. Hammersley v. De Bid, (w) 4 Drew. 1 ; and seo tho cxlra- 
 
 12 CI. & F. (34, n. judicial opinion of Turner, L.J., in Sur- 
 
 (r) Per Kindersley, V.C, Barhworth come \. J'inni'tjcr, 3 Do ti. M. & (J. .071 ; 
 
 V. YoiuKj, 4 Drew. 12. but sec tlic comments of Ixjrd Romilly, 
 
 (•s) 12 CI. & F. 63, 64 (n.), 79, 80, 87 ; ^I.K., on tlicsc two cases in (JoldicuU v. 
 
 but see Fry, Sp. Pt. 2nd ed. 244, 251. Townslicml, 28 r>cav. 451, 452. 
 (r) 4 Drew. 17, 18.
 
 380 PAROL ANTE-NUPTIAL AGREEMENTS 
 
 Warden v. Oil the Other hand, the case of Warden v. Jones {w), decided 
 
 '^''""' after BarJcworth v. Younj (x), in which Lord Eomilly, 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 
 Cranworth (y). In this case, and in the subsequent one of Goldi- 
 ciUt V. Toicnshend {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 
 the statute derives no support from these cases. In the Court of 
 Appeal, however. Lord Cranworth, L.C., though not called upon to 
 decide the point, recorded an opinion against the validity of a recital 
 in a post-nuptial settlement of a parol agreement before marriage. 
 He said («) : " ]^or are we embarrassed here by the question which 
 has sometimes arisen— namely, that the post-nuptial settlement is 
 recited to be made in pursuance of an ante-nuptial agreement. 
 Lord Thurlow decided, in Diindas v. Dutens (h), 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 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 recognition 
 after marriage of a verbal promise made before marriage would 
 be invalid. One question in Rcindcdl v. Morgan (c) was, whether 
 a letter, written by the father of the wife after the marriage, 
 amounted to a promise to give a bond, or to a recognition of a 
 previous verbal promise to do so. Sir W. Grant, after observing 
 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 extremely whether that would be sufiicient to entitle the 
 Court to construe this into an acknowledgment of a debt, for the 
 promise, being in itself a nullity, producing no obligation, a written 
 recognition after the marriage would give it no validity,' This 
 
 (i/-) 2 Dc (;. & J. 7(5. (//) 23 Beav. 487. {h) 2 Cox, 23.5. 
 
 \s) 4 Drew. 1. (::) 28 Beav. 446. (c) 12 Vcs. 73. 
 
 (a) 2 Dc G. & J. 85.
 
 AND POST-NUl'TIAI. SKTTLEMENT.S. 381 
 
 most reasonable construction of tlic statute is consistent with the 
 decision of Lord ( 'ottenliam in Tmsschcc v. Ticrnc;/ (i/), and, th(ju^'h 
 the precise question does not arise in the case now before nie, I 
 have thought it right to advert to those authorities, in order that it 
 may not be thought that I decide the present case merely on the 
 ground that it is distinguishable from JJundus v. Dutcns {c). I 
 incline to think that, even if this settlement had contained a state- 
 ment that it was made in pursuance of a previous ante-nuplial 
 parol agreement, I should still have considered it, as I now con- 
 sider it, void against creditors." 
 
 In the case of Crosdcy v. Elvvrtlnj (/), ]\ralins, V.(J., cxjin-ssi-d 
 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 marriaire. 
 
 The most recent case on this point, and which, it is conceived, TroweU v. 
 decides that a parol contract before marriage cannot so support a ' '^'* ""' 
 settlement made after marriage, is that of Trowcll v. Shenton (g). 
 
 In that case an infant, l)efore 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 tlie ante-nuptial 
 agreement. 
 
 The case was decided by the Court of Appeal u])on the ground 
 that the contract made in infancy had never been ratified in 
 writing by the infant after coming of age, as re(piired by Lord 
 Tenterden's Act, and that therefore the settlement was voluntary, 
 and void against a subsequent purchaser for value. 
 
 Dut it is conceived that Sir CL Jesscl, M.ll., and Cutton, L.d.. in 
 the course of their judgments dealt with this tpiestinu. Sir (;. 
 Jessel, M.E., said : " Some observations were made during the 
 argument as to the effect of a subsequent acknowledgment in 
 writing of a contract, and Barkworth v. Yoitiuj (Ji) was referred to 
 in support of the contention that the settlement was for value, 
 
 ((/) 1 Mac. & G. 557. (ff) 8 Ch. D. 318. 
 
 (e) 2 Cox, 235, 1 Ves. Jan. 100. (A) 4 Drew. 1. 
 
 (/) L. K. 12 Eq. 164.
 
 382 PAROL ANTE-NUPTIAL AGREEMENTS 
 
 though tlicre was no ratification till after the marriage. The 
 answer to this is given hy M'ardrn v. Jones (i), which is subse- 
 quent in (late to Barhicorth v. Yoitncj (IS), 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 Dunclas v. Di/lcns (I) 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 
 previous ]iarol 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.' 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 Trovrll v. Slwnton (in) and Warden v. Jones (i) [were 
 decided is really the same. In the one case a written contract 
 made in infancy cannot support a settlement, because Lord 
 Tenterden's Act, which requires written satisfaction of that 
 contract signed by the party to be cliarged, has not been com- 
 plied with. In the other case, a parol contract made before 
 marriage cannot be connected with a written one made after 
 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. 
 
 Parol ante- The result, then, of the English authorities on this point seems 
 
 ment'cannor to bc that a parol agreement before marriage cannot set up a 
 make post- settlement made after marriage so as to make it a deed for 
 
 nuptial settle- ° 
 
 ment for value, valuable consideration, and therefore good against creditors or 
 
 subsequent purchasers (//). 
 Same if recital A rccital in the post-nuptial settlement of an ante-nuptial parol 
 inentTn post-*^" f^gi'^ement will not give it any additional validity ; so that, for this 
 
 nuptial eettle- question, such a deed stands on the same footing as a post-nuptial 
 ment. ^ _ o ^ x 
 
 settlement without such recital. 
 
 (/) 2 TVfi. &.J. 70. («) Stig. Pow. 8th ed. G50 ; Edn-ards 
 
 {h) 4 Drew. 1. v. Havtilton, H. & AV. 290; Fry, Sp. I'f. 
 
 {l) 2 Cox, 235, 1 Ves. .Tun. 190. 'Jiul ed. 251 ; Dav. Prec. Conv. 3rd ed. 
 
 (m) 8 Ch. D. 32(3 ; but see Lx parte vol. 3, 368 ; but see Dart, V. & P. 5th 
 
 Whitehead, 14 Q. J5. D. 419. cd. 1028 ; Eversley, Dom. Rel. 161.
 
 AND POST-NUPTIAL SETTLEMENTS. 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, liy a mere recital in a post-nuptial 
 settlement, to exclude his creditors. The mere fact that it would 
 be in tlie power of a person so to set up a parol ante-nuptial 
 agreement to support a post-nuptial settlement, of which his 
 creditors could have no knowledge, seems in itself a good argument 
 against it (a). 
 
 The same view of this question has, after some divergence of American 
 opinion, been adopted in the United States, and is now there ^^ ^ 
 regarded as settled law (^)). 
 
 It should also be observed that the only cases in which a Parol contract 
 post-nuptial recognition has been allowed to establish the agree- a^ainst^tli'e" 
 ment are where to prove the parol contract was against the ii^terest of _ 
 
 i- ^ c" porson admi- 
 
 interest (in the then suit) of the person by whom the written ting it. 
 recognition had been made (y). As against such persons the sub- 
 sequent writing might be valid by estoppel (7^) : a view which is 
 supported by the words of Sir Thomas Plumer, M.E,., in Battersbee 
 v. Farrington (s) : " On the first question (which I am not now 
 to decide) the distinction, I apprehend, is, that against all persons 
 claiming under the settlement the recital is conclusive." 
 
 So in Watts v. Watts (t), where a post-nuptial settlement was 
 made by a husband in favour of his wife and children, which 
 recited that it was made in pursuance of an ante-nuptial agree- 
 ment, 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. 
 
 (o) Jjatter.ihee v. Farrington, 1 S\v. (y) Ford v. Grey, 1 Salk. 28") : Mttr- 
 
 113; tSjmrgeon v. Collier, 1 Ed. 61; chioiiess of Annaiulale v. Ilarri:^, '1 V. 
 
 Pollock, Cont. 4tli ed. C15. AVms. 432, affirmed by House of Lords, 1 
 
 (j)) lieade v. Livingston, 3 Johns. Ch. Bro. P. C. 250; /i'helley v. Wright, Willes, 
 
 481 ; Kent, Com. 12th ed. 172, 173; Story, 11, 12 ; Lainson v. Tremere, 1 A. & E. 
 
 Eq. Jur. 12 th ed. s. 374; Throop, Verb. 792 ; Bowman v. Taylor, 2 A. & E. 278 
 
 Ag. (Amer.), 716, 721, 722; Bump. Fr. Bowman v. Mostron, 2 A. & E. 295 
 
 Conv. (Amer.), 2nd ed. 297, 298. Carpenter v. Buller, 8 M. & \V. 209 
 
 ((/) Dundas v. Dutens, 2 Cox, 235, 1 Fort v. Clark, 1 Russ. COl. 
 
 Ves. .Tun. 196 ; Battersbee v. Farrington, (s) 1 S\v. 113 ; and see Stone v. Stone, 
 
 1 Sw. 106; Montacute v. Maxwell, 1 P. L. P. 5 Ch. 74. 
 
 Wms. 618, 1 Str. 236 ; Barkworth v. (t) 24 W. P. 489, affirmed on appeal. 
 Young, 4 Drew. 1.
 
 384 
 
 UNWRITTEN ANTE-NUPTIAL 
 
 Parol 
 
 agreement, 
 
 anJ personal 
 
 property 
 
 actually 
 
 transferred 
 
 before 
 
 marriage. 
 
 Piirol repre- 
 sentatiou 
 inducing 
 niaiTiacre. 
 
 It seems that if a man, upon his marriage with a lady, enters 
 into a mere parol agi'eement with her that a sum of money shall 
 be transferred to trustees upon trusts for himself, his intended 
 wife, and the children of the marriage, and the money is, before 
 the marriage, actually transferred to the trustees, who hold it 
 solely upon the trusts agreed upon, the fact that the instrument 
 declaring the trusts is executed by them subsequently to the 
 marriage does not make it a voluntary instrument, or enable 
 creditors to set it aside on the ground that it was not made bona 
 fide in consideration of the marriage {u). 
 
 A post-nuptial settlement may also be enforced in pursuance 
 onlv of a jxn-oZ representation made before marriage, upon the 
 ground that the person who has made the promise is, under the 
 circumstances, estopped from denying it (v). 
 
 The fourth section of the Statute of Trauds, it must be observed, 
 applies only to agreements, and does not include representations (ic). 
 
 The question, then, whether a settlement can be enforced after 
 marriage if the marriage has been induced by a _2>«?'o^ representa- 
 tion, 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 (.'•). 
 
 The principle upon which a j^rnv// representation will be so 
 enforced has been thus stated by Lord Selborne, L.C, in Citizens' 
 Baah of Louisiana v. First National Bank of Keiu Orleans (i/) : — 
 
 («) Coojyer v. Wormnhl, 27 Beav. 20G, 
 270 ; Kiimmona v. tSimmons, 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 ; 
 IToihjson V. Jhitchemon, b Vin. Abr. .022, 
 ante, p. 'M't; Birdv. Blos>ie,2 Vent. :5i;i ; 
 C'oke.i V. Mascal, 2 Vern. 200 ; Wunl:ford 
 V. Fotherley, 2 Vern. 322; Jfal/jieui))/ 
 V. Ballet, 2 Vern. 373 ; Luders v. 
 Anstey, 4 Ves. 501 ; Merry v. Jiyves, 1 
 Kden, 1 ; De Beil v. Thompson, 3 13eav. 
 409, S. C. on appeal as JIammersley v. 
 J)e Biel, 12 CI. & F. 45 ; Madox v. Xoir- 
 lan, Beatty, C. C. C32 ; Loxley v. Heath, 
 
 27 Beav. 523; Prolc v. >Soady, 2 (iiff. 1 ; 
 ('ooper V. Wormald, 27 Beav. 2G0 ; Wil- 
 liams V. WiV.iamti, 37 L. J. Cb. 854; 
 Bohl V. Hutchinson, 5 De (i. M. & (J. 
 .058; Maunsell v. Hedyes White, 4 H. 
 L. ('. 1030; Jorden v. Money, 5 H. L. ('. 
 185. Sue tbe judgment of Stepben, J., 
 in Alderson v. Muddison, 5 Ex. I). 293, 
 S. C. 7 (i. B. 1). 174, S. ('. 8 App. 
 ('as. 407; Pollock, font. 4tb ed. G13- 
 (•,14. 
 
 (»;) Tbroop.Verb. Ag. (.\mer.), 075,731. 
 
 (x) l)av. Prec. Conv. 3rd ed. vol. 3, 
 040-040 ; Lusb, H. & W. 437-438 ; Kerr, 
 Fraud & Mis. 2nd ed. 50-51. 
 
 fy^ I,. It. H. L. 352, 300.
 
 AGREEMENTS. 385 
 
 "I apprehend that nothing can he mure certain than this, that 
 the doctrine of equitable estoppel by representation is a wliolly 
 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 anotlier for value makes 
 statements to him as to existing facts which, being stated, would 
 affect the contract, and without reliance upon which, or without 
 the statement of which, the party would not enter into the con- 
 tract, 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 Ijeen 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 wliicli has induced 
 marriage which will entitle the promisee to enforce it against the 
 promisor. 
 
 There is a fundamental distinction between a parol representa- Only onforpo.i 
 
 if (if an iji!>t- 
 
 tion as to an existing fact, and as to a present revocable infrntion iiujfnct. 
 to do a future act {z). 
 
 So Mellish, L. J., said : " There is a clear difference between a mis- 
 representation in point of fact, a representation that something 
 exists at that moment which does not exist, and a representation 
 that something will be done in the future. Of course, a represen- 
 tation 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 " (2). 
 
 It is conceived that the only parol representation (relying on 
 which marriage has taken place) tliat 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). 
 
 (z) Beattie v. Lord Ehury, L. Pi. 7 G4G ; Ahhrson v. Maddlson, b Ex. 1>. 
 Ch. 804; Fyr parte Burrell, 1 Cli. D. 552. 293, 290, S. C. 7 d B. D. 174, S. C. 8 
 (o) Day. Tree. Conv. 3rd cd. vol. 3, (J42- App. Cas. 407. 
 
 c g
 
 386 
 
 UNWRITTEN ANTE-NUPTIAL 
 
 A post-nuptial settlement, if made Ly a person wlio could have 
 been compelled to make it in order to make good a parol repre- 
 sentation 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 (/')• 
 
 Written repre- The same principles apply to a representation made in writing 
 sentation. ^^ iuducc marriage and acted on by the person 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 (r). 
 
 Of course the person who seeks to enforce the representation 
 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 distinction 
 between a representation made by one of the persons to be 
 married, and a representation made by a third person to either 
 of them (('). 
 
 Promise to 
 reduce agree- 
 ment to 
 ■writing pre- 
 vented by 
 fraud of one 
 party. 
 
 In any case in which the execution of an ante-nuptial settle- 
 ment, or the reduction of it into writing, after a parol promise to 
 make one has been given, is prevented by the fraud of one of 
 tlie 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 tlie 
 drawing of a marriage settlement, and, before it is completed, the 
 
 (h) Ante, pp. 384, 385. 
 
 (c) See Goldicutl v. Townscnd, 28 
 Beav. 445-9 et seq. 
 
 {d) Jameson v. Stein, 21 Beav. 5. 
 
 (f) Crofton V. Ormshy, 2 Sch. & Lef. 
 583 ; Warden v. Jones, 23 Beav. 
 493, S. C. 2 De G. & J. 7G ; BoUl v. 
 JIutchiuson, 5 De G. M. & G. 
 558 : Prole v. Soadij, 2 Giff. 1 ; Pollock, 
 
 Cont. 4th ed. 614 ; and see Scton, 4th ed. 
 1223. 
 
 (/) Cokes v. Mamdd, 2 Vern. 200 ; 
 Jhilfpennii v. liallct, 2 A'ern. 373, 1 Eq. 
 Ca. Abr. 20 ; and see Taylor v. Beech, 
 1 Ves. 297 ; Af^new, St. Frauds, 133. 
 
 {(j) Middletun V. Middleton, 1 J. & W. 
 99; Story, Eq. Jur. 12tli ed. s. 708; Fry, 
 Sp. Pf. 2nd ed. 250.
 
 AGREEMENTS. :J87 
 
 woman is drawn in, by the assurances and i)roiiii.sos of tlie man 
 to perform it, to marry him ; in sucli a case the Court will 
 relieve (h). 
 
 But no relief will be given where one of tlic; ]»arties is induced 
 by the other to waive the intended settlement in reliance upon 
 a bequest or devise of the same property (/). 
 
 (/t) Maxirdl v. Montaculc, Prec. (,'li. (/) f'alon v. ('(i(nn,\,. \\. 1 Cli. 137, 
 
 526; Vin. Abr. tit. Contract, H. 3G. S. C. L. II. 2 II. L. 127. 
 
 C C
 
 PART V. 
 
 VOLUNTAliY DISPOSITIONS OF PlWrERTY IXDEPENDEXTLy 
 OF THE STATUTES OF ELIZABETH; HOW VAIJDLV MADE, 
 AND IN WHAT INSTANCES THEY ABE LIABLE TO BE SET 
 ASIDE. 
 
 CHAPTEE I. 
 
 VOLUNTARY AGREEMENTS AND COVENANTS ; DEFECTIVE EXECUTION 
 
 OF TOWERS. 
 
 It has been long settled that a mere gratuitously expressed Voluntary 
 intention, a promise merely voluntary, or, in otlicr words, a nudum 'Iwi^l^rS^nwA 
 jmctum, is not binding at law (a) ; and that a Court of e(|uity ^vill ^'^ '^*^ ^''"'''• 
 not enforce specific performance of any agreement unsupported by 
 a valuable consideration {h). The reason of this is that an agree- 
 ment or attempt to assign is, in form and nature, incomplete, 
 and the origin of the transaction must be inquired into by the 
 Court; and Avhere there is no consideration, tlie Court, upon its 
 general principles, cannot complete what it finds imperfect (c). 
 
 This principle of the Court to withhold its assistance from a 
 volunteer applies equally whatever may be the form of the 
 
 (rt) Heathcote v. Croolcslianlcs, 2 T. 1!. Gilborne, Stra. 738 ; Ayliffe v. 7r«<7/, 
 
 27 ; Kelceicich v. Manning, 1 De G. M. & 2 P. Wms. (35 ; Basse v. Gray, 2 Vcrn. 
 
 G.,perKnightBru(;e, L.J.,188; /iSVro7!5fv. G92-3 ; i%tW/e/o?t v. Kenyun, 2 Vcs. 
 
 Bird, L. E. 18 Eq., per Jessel, M.R., Jun. 410; Cotteen v. Misshu/, 1 Mad. 
 
 317. 17G-83 ; Ord v. Juhnstonc, 4 W. K. 37 ; 
 
 (b) Stanfield v. Miller, MS. 1726, C7ieale v. Kcr wood, G W. K 4\)4; Jun- 
 
 Appendix No. Vlll. ; Auoii. case, MS., nedy v. May, 11 W. K. 358; Groves v. 
 
 Appendix No. XII. ; Hah v. Lamh, 2 Ed. Groves, 3 Y. & J. 163 ; Walrviid v. Wul- 
 
 292, 2<)4 ; Ward v. Audland, 8 Sim. 571, roiid, John.?. 18 ; ( 'ochrunc v. Wdlis, L. K. 
 
 576 ; DiUon v. Coi>inn, 4 My. & Cr. 047, 1 C"li. 68 ; BU/tards v. JJdbrldyc, L. R. 
 
 671 ; Pulvertoft v. Pulrertoft, 18 Vcs. 90, 18 Eq. at p. 15 ; Fry, Sp. Pf. 2nil cd. 42. 
 99 ; Wycherley v. Wycherley, 2 Eden, {r) M'Faddcn v. Jenkins, 1 Hare, per 
 
 177 ; Sutton v. Clietirynd, 3 Mer. 249 ; Sir J. Wigram, V.C., 462 : Green v. 
 
 Jefferysy.Jcffrys,i:r.'&Vh.in8; Ellison Paterson, 32 Cb. D., per Cotton, L.J., 
 
 V. Ellison, 6 Ves. 656 ; Broirntsmlth v. 1U5.
 
 390 VOLUNTARY AGREEMENTS 
 
 agi'eomeut wliicli it is sought to enforce — whether it he a contract, 
 a covenant, or a settlement (c/). 
 
 "Whether The doctrine was formerly held that, following the law, a 
 
 oruot. Court of equity would enforce in favour of a volunteer a 
 
 contract midcr seal (r). But this has been long since overruled, 
 and it is now well settled that the Court will not enforce specific 
 performance of a voluni'cnj contract or covenant, even with the 
 legal consideration of a seal (/). 
 
 Consideration Tlic only consideration which will su})port an agreement so 
 
 valuable. that it may be specifically enforced is a valuable one. It is not 
 
 enough that the consideration is meritorious, as that of natural 
 
 love and affection {y) ; and it must move from the person who 
 
 seeks to enforce the agreement (A). 
 
 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 will it in any manner recognize any volun- 
 tary instrument which does not complete the transfer of the 
 property (Jc). 
 
 {(!) Cohjear v. Musf/rave, 2 Keen, 81 ; (</) DiUo» v. Cuppln, 4 My. & Cr. 647, 
 
 Jefferijs v. Jefferys, Cr. & Ph., per Lord G71 ; Antrohus v. Smith, 12 Yes. 39; 
 
 Cottenhara, L.C., 141 ; In re D'Anijibaa, Jefcri/s v. Jcfterj/s, Cr. & Ph. 138 ; Tatltam 
 
 15 Ch. D. 242, 246; In re Anstis, 31 v. Vernon, 29 Beav. 604; IloUowai/ v. 
 
 Ch. D. 596. The saniepriiicii^le is followed Hcadinrftun, 8 Sim. 324 ; Jojice v. Ilutton, 
 
 in America: see Kawle, Covenants (Amer.), 11 Ir. Ch. Eep. 123, S. C. 12 Ir. Ch. Rep. 
 
 4th ed. 663 et seq. 71, overruling Col man \. Sarrcl, 3 Bro. 
 
 (e) Wiseman v. lioi^r, 1 Ch. Rep. 158 ; C. C. 12 ; Ellis v. Nimmo, LI. & G. 
 
 Beard v. Nutthall, 1 Vern. 427 ; Husband (t. Sug.) 333 ; Bodfjers v. Marshall, 17 
 
 V. Pollard, cited liandal v. Binidal, 2 Yes. 294, and other cases cited and stated 
 
 P. W. 467 ; Vernon v. Vernon, 2 P. W. 4 My. & Cr. 664 et ceq. ; Thomi)son v. 
 
 594 ; Goring v. Nash, 3 Atk. 186 ; Attfield, 1 Yeni. 40 ; Chapman v. Gibson, 
 
 Stephens v. Trueman, 1 Yes. 73 ; and see 3 Bro. C. C. 229 ; Sarth v. Blanfrey, 
 
 Williamson v. Codrinr/ton, 1 Yes. 511 ; Gilb. Kq. 166; and see Lewin, Tr. 8th 
 
 Ilervey v. Audland, 14 Sim. 531. ed. 72. 
 
 (/) Hale V. Lamb, 2 Ed. 294, per Lord {h) Groves v. Grore-«, 3 Y. & J. 163 ; 
 
 Northington ; Fursaker v. Robinson, Pr. In re Anstis, 31 Ch. D. 596; Fry, Sp. 
 
 Ch. 475 ; Evelyn v. Templar, 2 I!. C. C. Pf. 2nd ed. 42. 
 
 148; Colman V. Sarrel,Z B. (!. C. 12; (/) Per Lord ^Ve8tbu^y in DiUiryn v. 
 
 Jefferys v. Jefferys, Cr. & Ph. 138; Meek LleircUyii, 4 D. F. & J. 521 ; and sec 
 
 V. Kettleirell, 1 Hare, 474 ; Fletcher v. Colman v. Sarrel, 3 Bro. C. C. 12, 1 A'es. 
 
 Fletcher, 4 Hare, 74; Ncu-ton v. Askew, .Tun. 50; Adams v. Cla.rton, 6 Yes. 225, 
 
 11 Beav. 145 ; Z'c/u'h.v V. IJ'co-e, 22 Beav. 230; Dening v. Ware, 22 Beav. 184; 
 
 184 ; Dillon v. Coppin, 4 M. & Cr. 647 ; post, pt. v. ch. ii. 
 
 Kelceioich v. Manning, 1 De G. ^I. & Ci. (Ic) See Lister v. Hodgson, L. R. 4 Eq. 
 
 188 ; Poll. Cont. 4lh ed. 184. 30, 33-34 ; post, pf. v. ch. ii.
 
 NOT GENERALLY ENFORCED. 391 
 
 Tlicrc arc, indeed, a fi^w cases of family arrangements of \vliicli i.-„,„ii_, 
 specific performance will lie enforced, tliou-di they arc tinsui)- '"■'■'■"'^'"""'""' 
 
 ,1-,, '"^ -^ ^ M)iii<-tirii('H 
 
 ported by what would be considered a valuaMc and sullicient f»r..rro,i with- 
 consideration as against either creditors or i-urchasers (/;. In all v"luc.''''''"*'° 
 other cases, however, tlie same consideration is necessary to 
 induce tlic Court to lend its aid to ].erfect a contract between 
 the parties as to support the transaction against either creditors 
 or purchasers ; and if the transfer is voluntary (//(), in order to 
 make it binding between the parties and against strangers, it 
 must be absolutely complete. 
 
 It follows from this that the Court will not enforce a covenant fovcnnni to 
 to surrender copyholds in favour of volunteers, although children Jojivholiil, &c, 
 or near relations Cn). So, an omission (o) or defect (p) in a ""«'i'"f""--i-'l 
 
 , 1 1 -n ^-^ ' for volunteers. 
 
 voluntary deed will not m general be supplied in equity. Xor 
 can the voluntary deed be rectified in accordance with the agree- 
 ment; the instrument is cither good or bad as it stands; it cannot 
 be modified to suit former intentions (q), for this M'ould, in fact, 
 be a recognition and enforcement of the voluntary agreement. 
 
 Where A. and ]]. for valuable consideration enter into an Confmct f..r 
 agreement between themselves to do some act for the benefit of twoV-rMin^" 
 C, who is not a party to that atfreement, A. and J], can mutually ["•;';"■"*■'" "•" 
 enforce that aureement (r). But C, as he is not a party to the '^^^^ h' f'' ''•••■ 
 
 '^ ^ ^ . ofthctwo, but 
 
 agreement and a mere volunteer, cannot, as a rule, compel either not pcnrmiiy 
 
 A Ti j^ c -J. / N ''y 'I'c third. 
 
 A. or Jd. to periorni it (s). 
 
 So, marriage articles wdll not, in the absence of proof of a 
 
 (/) See WllUams v. Williams, L. I!. 2 Ch. 294 ; ante, pp. 27G, 277. 
 
 {m) As to what transfers arc voluntary, (;•) Goring v. Xush, 3 Atk. 189; 
 
 see ante, pp. 243 et seq. Davenport v. Bixhopj}, 2 Y. & C. L'h. 451, 
 
 (n) Jeffery!i\.J€ffcr!is,Vv.&iV\\Am\ S. C. 1 riiil. 698; WeMbunj v. Chipp, 
 
 Dening'y. Ware, 22 Beav. 184 ; Steele v. 3 N. R. 633. 
 
 Waller, 28 Beav. 466; Tatham v. Ver- («) CVoeo v. 7%frA-, 1 Str. 502 ; CoUjcar 
 
 noH, 29 Beav. 604 ; Green \. Paterson, 32 v. Mulgrare, 2 Keen, 81, 98; //<// v. 
 
 Ch. I). 95 ; and see note {(j), ante, p. 390. (lomme, 1 Beav. 540, S. C. 5 Mj. & Cr. 
 
 (o) Zee V. Henley, 1 Vern. 37. 250; Joyce v. JliUtun, 11 Ir. Ch. Kcp. 
 
 (p) Note to Bonham v. Neiccomh, 2 123, S. C. 12 Jr. Ch. Eep. 77 ; Cranur v. 
 
 Vent. 365 ; Williamson v. Codrinyton, 1 Jloore, 3 Sni. & Cid". 141 ; Gale v. Gale, 
 
 Ves. 511, 514; Thompson v. Attjidd, 1 6 Cli. D., per Fry, .1., 148 /» re 
 
 Vern. 40 ; and cases inlia. jrjnyibau, 15 Cli. !>., per Cotton, L..I., 
 
 (q) FJdIlijmii V. Kerry, 32 Beav. 628, 242 ; Fry, iSp. I'f. 2nd ed. 77 ut seq. ; Jn 
 
 8. C. 638 ; Lister v. Hodyson, L. IJ. 4 re Empress Knyimcriny Co., 16 Ch. D. 
 
 Eq. 30 ; post, pt. V. ch. v. * 125 ; and sec In re FUndt, 25 Ch. D. 8'J.
 
 392 VOLUNTARY AGREEMENTS 
 
 bargain, be enforced at the suit of collaterals claiming by an ulterior 
 limitation to them as volunteers (t). 
 
 So, in a separation deed it was lield tliat a covenant for value 
 entered into between the husband and trustees for the wife 
 could not be enforced by the children, because, upon the true 
 construction of the wliole instrument, the contract had not been 
 entered into with them, and did not give them a beneficial right 
 under it (u). 
 
 And specific performance of a post-nuptial contract (y) between 
 husband and wife will not be enforced in favour of children, even 
 if it is founded on a valuable consideration between the husband 
 and wife (?r), or third persons (.r), unless a l)argain can be proved to 
 have been then made on their belialf {//) ; for the consideration 
 of marriage is not infused into that contract (z). 
 
 Exception if in There is one class of exceptions to this general rule. If the 
 coiitnict' '" covenant be contained in an ante-nuptial (a) settlement, then the 
 Court will enforce it, in favour either of children of the then 
 intended marriage, or of those of a widow, and perhaps also of a 
 widower, who were in existence on her or his re-marriage ; for 
 such children are not in the position of ordinary volunteers, but 
 are within the consideration of the marriage, although they 
 are not parties to the marriage contract (&). In all marriage 
 contracts the children of the marriage in contemplation of which 
 a settlement has been executed, are not only objects of, but quasi 
 parties to, it (c). 
 
 DifTerent rule In America, however, a person for whose benefit a contract is 
 made may enforce it at law, although he is a stranger both 
 to the contract and to the consideration (d). 
 
 (0 tSuttoyi V. Chetmjnd, 3 Mer. 249, 255 ; ante, pp. 342 et seq. 
 
 (w) Garuhj v. Gandi/, 30 Ch. D. 57 ; («) Oale v. Gale, 6 Cb. D., per Fry, 
 
 ante, p. 303. J., 148. 
 
 (u) Jeffcrys v. Jeffcrys, Cr. & Vh. 138 ; (6) Gale v. Gale, 6 Cli. D. 144 ; Li re 
 
 Gale V. Gah, 6 Ch. IX, per Fry, .T., 152. D'Anyibuu, 15 Ch. D., per Cotton, L.J., 
 
 (io) Jo)/cev. 7/u»0H, 12lr.Ch. Uep. 71 ; 242; Fry, Sp. I'f. 2nd cd. 78; rollock, 
 
 Green v. Fatcrson, 32 Cli. I). 95. Gout. 4th ed. 202 ; ante, pp. 249, 352. 
 
 (x) Tweddle v. Atkinson, 1 B. & S. 393. (c) Hill v. Gommc, 5 IMy. & Cr. 254, 
 
 (y) Ante, pp. 342, 357 et seq. per Lord Cottenhani, L.C. ; and see Green 
 
 {z) Green x. Pater son, 32 Ch. D., per v. Fatcrson, 32 Ch. I)., per Fry, L.J., 
 
 Cotton, L.J., 105, and per Fry, L.J., 106, 100. 
 
 107. ('/) Throop, Verb. Ag.(.Vnier.), 408,419.
 
 WHEN ENFORCED. ;}(j3 
 
 But it seems that in such cases the vohintecrs are eulitlcd to 
 have the trusts rectified according to the intention of the parties, 
 if they can make out a clear case of mistake (r). 
 
 All this goes on the ground that the voluntary conveyance was 
 not complete, and that the agreement or imperfect conveyance, 
 which the Court refuses to enforce, was merely executory ; that 
 the gift still remained in fieri, it being the intention of the donor 
 to perfect the transfer by some subsecjuent transaction (f). 
 
 A voluntary agreement, altliough incomplete, may sometimes Voluntary 
 be enforced upon a totally different ground. Tliat ground is, S^'p'^ 
 that the subsequent acts of the donor liave given the donee that ^^ «<'i"'«-'T'cni 
 
 . , 1 (. 1 . *<^''' of donee. 
 
 right or ground of claim whicli he did not acquire from the 
 original gift. Those acts may have supplied a valuable con- 
 sideration originally wanting. 
 
 Thus, if A. gives a house to B., but makes no formal conveyance, 
 and tlie house is afterwards, on tlie marriage of B., included, witli 
 the knowledge of A., in tlie marriage settlement of B., A. would 
 be bound to complete the title of the parties claiming under that 
 settlement. So, if A. puts B. in possession of a i»iece of land, 
 and tells him, "I give it to you that you may build a house on 
 it," and B., on the strength of that promise, with the knowledge 
 of A,, expends a large sum of money in building a house 
 accordingly, the donee acquires a right from the subsequent 
 transaction to call on the donor to perform that contract and 
 complete the imperfect donation whicli was made (/j). 
 
 But the Court will not assume that third parties have acted 
 upon a promise which at first was voluntary ; the ex post facto 
 consideration must be alleged by those who rely on it (/<). 
 
 "Where a donor, who intends to make a perfect voluntary gift, 
 
 (e) Thomjjson v. Whitmore, 1 J. & H. 2G8 ; post, pt. v. cli. v. 
 
 (/) It seems clear that the old law was, (_c/) J)illiri/n v. Hcicclli/ii, 4 D. F. &.J., 
 
 that, even where the property was jiot per Lord Westbury, L.C., 621 ; and see the 
 
 intended to be actually transferred, the remarks of .lessel, M.lt., In re lUirkcr'a 
 
 Court would supply defects in favour of L'sttitc, 44 L. J. (N.S.) Ch. 4.'»tl. As to 
 
 wives and children. Set; cases cited ante, ex post faelo consideratioa generally, sec 
 
 p. 389, end of note (b) ; Ellis v. Ximmo, ante, pp. 315 et seq. 
 
 LI. & G. (t. Sug.) 333 ; the last of thi.s (/() Lambert v. Xorihcrn Jiaitwai/ of 
 
 class of cases was overruled by Jcfferys Buchoh Ji/rci Co., IS W. 1{. 180. 
 V. Jefferys, Cr. & Ph. 138.
 
 194 
 
 DEFECTIVE EXECUTION OF 
 
 Formal defect 
 in execution 
 
 supplied for 
 wife or 
 Icjiitimate 
 children. 
 
 Defective 
 execution of 
 powers aided 
 
 for wife and 
 Jeiritimate 
 cliildien onlv. 
 
 fails to do SO Ly some formed defect (i) in the instrument by 
 which he intends to complete the transfer, in that case equity 
 ■will supply the defect ; not, indeed, in favour of pure volunteers, 
 but still in favour of certain persons who do not claim by virtue 
 of any valuable consideration — viz., a wife or legitimate children. 
 
 Thus, although volunteers will not be aided by surrender of 
 copyholds, and in most instances "the execution of a power 
 and surrender of a copyhold (/.) go hand in hand, precisely on 
 the same ground " (/), yet the defective execution of a power 
 will in certain cages be supplied in equity in favour of the 
 wife or legitimate child of the donee of the power which that 
 donee has ineffectually attempted to exercise, even in a voluntary 
 deed (m). 
 
 But a wife and legitimate children are the only relations in 
 M'liose favour the Court will supply defects in the voluntary exe- 
 cution of a power on the ground of meritorious consideration (n) ; 
 and for no other persons, whether relatives of the appointor — 
 grandchildren (o), natural children (-p), father or mother (q), 
 
 (0 As to appointments by icill, see 
 the Wills Act (7 Will. 4 & 1 Vict. c. 2(3), 
 ss. 9, 10. And with regard to appoint- 
 ments by (Jced in exercise of power."!, see 
 the Law of Property and Trustees' Eelicf 
 Amendment Act (22 & 23 Vict. c. 35), 
 
 8.12. 
 
 (/.•) To the uses of a viU, see Tulld v. 
 Toilet, 2 P. Wms. 489, Mos. 46, 2 Eq. Ca. 
 Ab. 233,663;nVh.&Tu.L.C.6thed.271. 
 
 (Z) Per Lord Alvanley in Chapman v. 
 Gibson, 3 Bro. C. C. 229, and see Sayer 
 V. Sayer, 7 Hare, per Sir J. Wigram, 
 V.C, 387. 
 
 (in) Bath and Montarjv^'s Case, 3 Ch. 
 Ca. 106 ; Smith v. Ashton, 1 Ch. Ca. 264 ; 
 Anon. Frecm. Ch. 197 ; Baler v. Jen- 
 vlnr/x, Freem. Ch. 234; FothergUl v. 
 Father/fill, Freem. Ch. 257 ; Sneed v. 
 tSneed, 1 Arab. 64 ; Churchman v. Jfarrey, 
 1 Anib. 335, 341 ; Willcs v. JTnlmex, 9 
 Mod. 485 ; ISarth v. Blanfrey, Gilb. Eq. 
 166; Hume v. Bnndcll, 6 Mad. 331; 
 JIardham v. Boberts, and cases cited in 
 note, 1 Vcrn. 132-3 ; Oarn v. Gam, 16 
 Ves. 268, 1 Eq. Ca. Abr. 122 et scq. ; 
 Lucena v. Lvccna, 5 Beav. 249 ; Barron 
 V. Constabile, 7 Ir. Ch. Kcp. 467; Proh;/ 
 
 V. Landor, 28 Beav. 504 ; J/orse v. 
 Martin, 34 Beav. 500 ; Kennard v. Ken- 
 vard, L. \\. 8 Ch. 227 ; Bruce v. BriKC, 
 L. P. 11 Eq. 371; Farwell, Pow. 274 
 et seq. 
 
 (») See Sug. Pow. 8th ed. 535 ; notes 
 to Toilet V. Toilet, 1 Wh. & Tu. L. C. 
 6th ed. 274 et seq. ; and Goodwyn v. 
 Goodicyn, 1 Ves. 226, 228; Byas v. 
 Byas, 2 Ves. 164-5. 
 
 (o) Kettle V. Townsend, 1 Salk. 187, 1 
 Eq. Ca. Ab. 122, in the H. of Lords, 
 overruling the decision of Lord Romers ; 
 Elton V. Elton, 3 Atk. 504, 508 ; Goodwyn 
 V. Goodicyn, 1 Ves. 226, 228; Tvdor 
 V. Anson, 2 Ves. 582 ; Berry v. White- 
 head, 6 Ves. 544; Strode v. Bussel, 
 2 Vern. 621, 625; but see contra Anon. 
 Frecm. Ch. 197 ; Watts v. Bullas, 1 P. 
 Wms. 60, and cases there cited ; Hill 
 V. Boicntov, 5 Ves. 557, 565 ; Chapman v. 
 Gibson, 3 Bro. C. C. 229, 231 ; Fursalccr 
 V. Bobinson, Free. Ch. 475, 477. 
 
 (j)) Fvrsaler v. Bobinson, Prec. Ch. 
 475, 477; Tiulor v. Anson, 2 Ves. 582; 
 CricJcett v. Dolby, 3 Ves. 12. 
 
 (q) Sloanc V. Cadogan, Sug. Pow. app. 
 (to nth and prev. eds.) No. 24.
 
 POWERS WHEN AIDED. .'3'jj 
 
 brothers or sisters (/■), iiopliews and nieces (.s), cou.sius (t), or a 
 husband (?/)— or a mere vohinteer, even if tlie creator of th.; 
 power (f) ; nor will a defect in a revocation under a power bi; 
 supplied in favour of the settlur himself {a^, nor will this extra- 
 ordinary jurisdiction lie exercised in favour of trustees, to screen 
 them from the eflects of a breach of trust in Iihn ing acted on an 
 informal appointment (r) ; for all these are looked (jii as mere 
 volunteers, and cannot be aided in e(piity. 
 
 The defect may also be supplied when the apj.ointec has a limited I'or partial 
 interest only ; even though the persons entitled in renuiindcr over '""■'■'■■''^• 
 are not entitled to have it supplied for them at the same time (y). 
 
 The principle upon which the Court proceeds in aiding the ('(.urt given 
 defective execution of powers is to give ellect to tlie true intention lS„I"„'f"" 
 of the donee of the power. J""fc of 
 
 power. 
 
 The real question is, does it sufficiently appear that there was 
 an intention on the part of the donee to give the property he had 
 power to dispose of {z) ? 
 
 The jurisdiction of the Court is to supply defects occasioned AVhnt dofccts 
 by mistake or inadvertence ; not to sup})ly omissions intentionally "'"^' "' "' 
 made («). And the Court will aid a defect only in a nuitter of 
 form, and not where it is of the substance and essence of the 
 power. It will never uphold an act which will defeat what the 
 person creating the power has declared, by expression or necessary 
 implication, to be a material part of his intention (h). 
 
 {r) Goodwyn v. Goodwijn, 1 Yes. A. 17G8, fol. 405 ; and sec note to li'ads 
 
 226-8 ; Gorimj v. Nash, 3 Atk. 186-189, v. BuHas, 1 P. "W. 6U. 
 which overruled Watts v. Bidlas, 1 P. («•) Ward \. JJootli, 3 Ch. Ca. 69, 72 ; 
 
 Wms. 60. Seryeson v. Sealen, \) Mod. 300, 2 Atk. 
 
 (s) Strode v. liussel, 2 Vern. 621, 412-4; Sug. Pow. 8th ed. 530; Ellison 
 
 625 ; Marston v. Gov:an, 3 Bro. C. C. 170. v. EUison, 6 Ves. 656. 
 
 {() TtuJor V. Anson, 2 Ves. 582. (••■■) Jwpldns v. MyaV, 2 Puss. & Jly. 
 
 (m) Watt V. Watt, 3 Ves. 244, where, 86 ; licid v. Thoinpsou, 2 Ir. Cli. P<'p. 26. 
 however, the defect was more in substance (.'/) See Marston v. Gowan, 3 JSro. C 
 
 than form ; ]\loodie v. Ji'eid, 1 Mad. 516 ; C. 170, cases cited in note, p. 171. 
 Hufjhcs V. Weds, 9 Hare, 749, 764 ; unless {z) Cooper v. Martin, I.. P. 3 Ch. 47 ; 
 
 of course he claims as a purchaser under Garth v. Townsend, L. P. 7 Jv). 220; 
 
 a marriage settlement or otherwise : Kcnnard v. Kennard, L. ]!. 8 (Mi. 227 ; 
 
 b'errjesoii v. f'i'eaky, 2 Atk. 412, 414-5. £ruce v. Jiriice, L. P. 11 Eq. 371 ; /V/iiic- 
 
 (v) Smith V. Ashton, Freem. Ch. 309 ; ^'athcr v. Ihtur/alhcr, Ir. P. 7 Kq.300, 318. 
 VaJie V. Fletcher, 1 P. Wms. 352-354 ; («) Garth v. Townsaul, L. P. 7 Kq. 
 
 Seryeson v. Sealey, 2 Atk. 412-5 ; God- 223, per Sir W. 31. .Tames, V.C. 
 win V. Kilsha, 2 Amb. 684-5, Peg. Lib. Qi) Gooper v. Martin, L. P. 3 Ch. 47,
 
 396 DEFECTIVE EXECUTION OF 
 
 So where a power to appoint by deed has been exercised by 
 will ((') the Court will relieve. So, where a power to appoint by 
 an instrument sealed and delivered has been executed by one 
 not sealed and delivered (d), the Court will relieve against the 
 defective execution. 
 
 But the Court will not relieve where a power to appoint by 
 will has been exercised by deed ; for the distinction between a 
 deed, which speaks from the moment of its execution, and a will, 
 which speaks from the death, is marked and substantial (c). 
 
 Onus to prove The wife or legitimate child who is the appointee under the 
 ilonee lies on powcr must prove the intention of the donee to execute that 
 
 •ippointee. ^^^^^^^ q-^_ 
 
 Will Court It has been frequently decided that tlie Court will relieve 
 
 defect*ive^*'°^* against a defective execution of a power If/ a married woman 
 execution hj jj^ favour of a Creditor or purchaser (a) : although this has been 
 
 uiaiTied ^ ^'- ^ 
 
 woman? doubtcd by Sir Thomas Plumer (h), upon the ground that she 
 
 could not enter into a binding contract. 
 
 The point has not been expressly decided whether the Court 
 will relieve against a defective execution of a power % a married 
 woman in favour of her child, where the consideration is merely 
 meritorious. The dicta of Lord Xorthington, L.C, in Wrif/ht v. 
 Lord Cadorjan (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 
 
 58; and see Wilhes v. Holmes, 9 Mod. (/) ^/a/je v. .Vo«cc/;, 2 B. & R 38, n. ; 
 
 485-6, per Lord Hardwicke ; Medu-in v. Pennefather v. Pennefather, 3r. E. 7 Eq. 
 
 Sandham, .3 Sco. 685; Watt v. Watt, 3 317; Farwcll, Pow. 157. 
 Ves. 244 ; Farwell, Pow. 259 et scq. {(j) Pollard v. Grenvil, 1 Ch. Ca. 10; 
 
 (c) Sneed v. Sneed, 1 Amb. 64 ; Mills Doe v. Wdkr, 7 T. E. 478, 480 ; Dou-ell 
 V. Mills, 8 Ir. Eq. Eep. 192 ; Bruce v. Dew, 1 Y. & C. Ch. 345 ; Stead v. 
 V. Bruce, L. E. 11 Eq. 371. Nthon, 2 Bcav. 245 ; Thacliccll v. Gar- 
 
 (d) Kennard v. Koniari!, Ti. E. 8 Ch. diner, 5 D. & Sm. 58, 65 ; Farwcll, Pow. 
 237. 262. 
 
 (f) Bcid V. Shcrfjold, 10 Ves. 370; (//) Martin v. Mitchell, 2 Jac. & W. 
 
 Cooper \. Martin, L. E. 3 Ch. 47; and 413,425. It seems doublfiil whether Sir 
 
 see Hervey v. Ilcrrcij, 1 Atk. 501 ; Strat- T. Plumer was referring to cases of 
 
 ford V. Lord Aldburonijh, 1 Eidg. P. C. defeclivc execution of powers, or merely 
 
 281, 285; Adncij v. Field, 2 Amb. 654; to contracts in fieri. See Sug. Pow. 8th 
 
 .Sco/< V. Davies, 4 My. & Cr. 87 ; Mills cd. 536, 537 ; and DiUon v. Orace, 2 Sch. 
 
 V. Mills, 8 Ir. Eq. Eep. 192 ; Sug. Pow. 8th & Lef. 456. 
 ed- 560-1 ; and bce notes to Toilet v. Toilet, (/) 2 Eden, 252, 253, 259. 
 
 1 "\Vh. & Tu. L. ('. 6th ed. 270 et scq.
 
 POWERS WHEN AIDKI). 397 
 
 under the appointment. And upon jniiicijile it would seem to he 
 immaterial to the granting of such relief what was the quality of 
 the appointor (/.), 
 
 The extraordinary relief thus afforded by tlic Court to wives Principle 
 and legitimate children forms an exception to the general rule ^^"""''''''"'"'^ 
 
 that nothing less than a valuable consideration will secure the 
 intervention of the Court to alter lef'al rights. 
 
 The exception thus created can hardly he 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 (/), it is not affected by the question whether tliey are 
 already sufficiently provided for (m) ; and, though professing to be 
 nsed for the purpose of assisting the "discharge of moral and 
 natural obligation" (n), it draws an arbitrary line wliich can 
 hardly be said to be co-extensive witli such obligations. 
 
 In no other instance will less than a valuable consideration Volantary 
 set in motion the machinery of the Court to enforce a voluntary ^rfe"'^ ^ *" 
 contract, or to compel the donor to perfect an imperfect gift. 
 
 If the donor is the legal owner and makes a legal assignment, 
 the Court requires everything to have been done which was 
 requisite for making the legal transfer complete. "Where the 
 donor, being mere equitable owner, is desirous that his trustee shall 
 become a trustee for the object of his bounty, the Court reipiires 
 clear and distinct evidence of a declaration of trust in favour of 
 the donee (o) ; and, as Lord Thurlow said (^j), " 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 valuable consideration." Every case on the 
 point professes to adhere to this rule, but it will be found that 
 
 (yt) Sug. Pow. 8tli ed. 53G, 537 ; Story, (nhwn, 3 V,ro. C. C. 229-230; and see jwr 
 
 Eq. Jur. 12th ed. 95. Lord Nortliington, L.C, in U'ritjhl v. 
 
 (l) Per Lord Loughborough in Hills v. Lord Ctulo(ja)i, 259. 
 Downton, 5 Ves. 557, 5G3-4. {o) Bentlcij v. Machmi, 15 IJeiiv. 12, 
 
 (m) Kettle v, Townsend, 1 Salk. 187; 18-19; see note to Lonham v. Xcwcomb, 
 
 Smith V. Baker, 1 Atk. 38G ; Ifervet/ v. 2 Vent. 3G5. 
 
 Eervey, 1 Atk. 5G8 ; Chapman v. Gibson, (p) See Colman v. ."yjrrd, 1 Ves. Jun. 
 
 3 Bro. C. C. 229. '>^l ^^^ 
 
 (n) Per Lord Alvanlcy in Chapman v.
 
 398 VOLUNTARY LEGAL LIABTLITV 
 
 opinions as to what is " sufficient to pass the suhject out of the 
 conveyer " are, to some extent, conflicting. 
 
 I-egal liability Where Ly a perfect voluntary instrument a person has sub- 
 lec^aftransfer. JGctecl himself to a legal liability, although the legal transfer of 
 the property may not be thereby complete, 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 tlie instrument {q). 
 
 So where by bond (/), covenant (.s), promissory note (t), or 
 otherwise {u), a person has voluntarily subjected 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 instru- 
 ment (r), the Court, if the legal title is free from doubt, will en- 
 force that instrument. If the legal title is doubtful, the Court will 
 let the parties try it at law (v), and, if it be doubtful whether the 
 instrument be voluntary or for value, may direct an issue (.r). 
 
 This question frequently arises in the administration of the 
 estate of the voluntary donor. The Court, where the legeil title is 
 clear, will enforce the claim of the volunteer against the assets of 
 the voluntary donor {y) ; postponing the claim, of course, to that 
 of a creditor for value (:), but preferring it to tiiat of a legatee (a). 
 
 In bankruptcy (h), however, whether under the Act of 
 
 ((/) Fletcher v. Fletcher, 4 Hare, 74, son v. Kearton, 3 Sm. & G. 186; Arthur 
 
 76, 77 ; and see Bud(je v. Bu(l(je, 16 v. Clarhson, o5 15eav. 458. 
 Beav. at p. 34. («) Fairheardv. Boxcers, Prec. Cli. 17 ; 
 
 (r) liamsden v. Jaclson, 1 Atk. 294 ; Ex imrtc Fottinf/cr,8 Ch. D. at p. 620. 
 JIall V. Palmer, 3 Hare, 532 ; Garrard v. (v) Fletcher v. Fletcher, 4 Hare, 07, 74. 
 
 Lord Binorhen, 5 Hare, 213; Denmrj (ir) Caiman \. iSarrel, 1 Yes. .Tun. 50 ; 
 
 V. Ware, 22 Beav. 184; 3IarhceU v. Alexander v. Brame, 19 Beav. 436; 
 
 Marhrell, 34 Beav. 12. IIerveij\. Audland, 14 Sim. 531. 
 
 («) Williamson v. Codrinr/ton, 1 Yes. (•') JJqnrorth \. I/esloj), GYIayo, 561. 
 
 511; Giles v. Boe, 2 Dickens, 570; (»/) Supia. 
 
 CloiKjhw Lambert, 10 Sim. 174 ; Fletcher (-) Batch v. >^'hore, 2 Dr. & Sm. 589 ; 
 
 V. Fletcher, 4 Hare, 67 ; Watson v. Barler, Blount v. Domjhtij, 3 Atk. 483 ; Bams- 
 
 Beav. 283 ; Lomas v. Wright, 2 I\Iy. den v. Jaclson, 1 Atk. 294. 
 &K.7G0; Alexander V. Brame, 19 r>CA\. (a) MarhceU v. Marlncell, 34 Beav. 
 
 436; Hales v. Cox, 32 Beav. 118; Bon- 12, 418; Batch v. Shore, 2 Dr. & Sm. 
 
 JieM v. Ilassall, 32 Beav. 217 ; Batch 589 ; Adames v. IMlett, L. B. 6 Eq. 468 ; 
 
 v. Shore, 2 Dr. & Sm. 589. Fx parte Bottivr/er, 8 Ch. D. 621, 026. 
 
 (/) LloTjd V. Ch^ine, 2 Giff. 441 ; Baic- (h) In re Mnr/fji, 20 Ch. D. 545.
 
 WHEN ENFORCED. 399 
 
 18G9 (c) or that of ISS-'J ((/;, a voluntary debt is paid pari passu 
 with a del)t for value (e). 
 
 So Lord Hardwicke said (/), " Undoubtedly a bill may be for 
 satisfaction of a debt out of assets real and i)ersonal, which debt 
 may be created voluntarily by the testator ; for though one cannot 
 come into Equity to supply a defect in a voluntary deed witliout 
 consideration ; or, in many instances, cannot come for spccilic 
 performance of such an agreement : yet, if lie has a specialty, he 
 does not want proof of consideration, but may come into Ivpiity 
 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, l)ut will 
 judge whether he has a specialty or not. Indeed, if it appears 
 doubtful to the Court wdiether 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 " (fj). 
 
 But where there is no valid ic(/al liability, the Court will not 
 enforce a voluntary promise against the estate of the voluntary 
 donor. 
 
 In Maiicr v. Tommas (h) a post-nuptial settlement was executed jVmlrr v. 
 by a married woman of her property. It contained an untrue ^'"""""■ 
 recital that she had paid the trustee 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, 'Mil, 
 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 liy the trustee or a volunteer 
 under the settlement. 
 
 (f) 32 & 33 A^ict. c. 71, s. 32. Vcs. 74 ; ami see (ioriixj v. Xa^ili, .". 
 
 (fZ) 46 & 47 Vict. c. 52, s. 40 (4). Atk. 18(J ; Jioughton v. Jhiiu/hlon, 1 
 
 (e) Ux parte Putthujer, 8 Ch. D. G21, Atk. G25; Colmuii v. /ban/, 1 Yes. .Fun. 
 
 626. 50, 3 Bro. C. C. 12, 14-15 ; A'(///er« v. 
 
 (/) Williamson v. Codrington, 1 Ves. JleUticish, 1 Arab. 247; Davenjyort v. 
 
 514-5. Bishnpp, 2 Y. & C". Ch. 451, 400, S. C. 
 
 {(j) See also Vernon v. Vernon, 2 V. 1 Pliil. 008. 
 
 Wms. 595, S. C. 4 Bro. P. C. 26, com- {h) L. K. 17 Eq. 8; and see PoiciiaH v. 
 
 xuented on in Stephens v. Trueman, 1 Anderson, 2 Jur. (N.S.) 857.
 
 400 
 
 VOLUNTARY 
 
 Covenants. 
 
 Where executors refused to perform a voluntary covenant for 
 furtlier assurance entered into by their testator, the Court, in a 
 suit to administer the covenantor's estate hy a third person, 
 refused to allow the covenantee to prove as a creditor, hut 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 without having recourse to a Court of 
 law. This was followed in Rales v. Cox (/), 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 7iot with the person entitled 
 to the benefit of it, but with trustees for him, makes no difTer- 
 ence (m). The rights of the cestui que trust under the covenant 
 do not depend on the caprice of the trustee so as to leave him 
 without remedy 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 
 T). as trustees, or some other person to be nominated by the cestui 
 que trust, it was held that the suit could be sustained without 
 making C. and D. parties (j)). 
 
 Deed neces- A voluntary agreement to pay a sum of money should be 
 
 ^^^^' contained in a deed in order to create a legal debt, for " every deed 
 
 in itself imports a consideration — viz., the will of him that made 
 
 Covenant 
 whether with 
 trustees or 
 cestui que 
 trust ininia- 
 terial. 
 
 ((■) Ilervey v. Atnlland, 14 Sim. 531, 
 535; Ward v. Audland, 16 M. & "W. 
 864 ; Aviton v. Atldiis, 18 C. B. '249. 
 
 (/.•) 8 Hare, 318 ; commented on Voyle 
 V. JIuffhes, 2 Sm. & G. 3C; and see 
 Williamson v. f'odrivf/ton, 1 Yes. 512. 
 
 (/) 32 Beav. 118. 
 
 (»j) Fletcher v. Fletcher, 4 Hare, per 
 
 (/)) Watson V. Parlcer, C Ikav. 283. 
 
 Sir J. Wigram, V.T., 77 ; and see Gandy 
 V. (land)i, 30 Ch. Y>. 57, 74. 
 
 (») Fletclier v. Fletcher, 4 Hare, per 
 Sir J. Wigram, V.C., 78; Bridge v. 
 Bridfje, 16 Beav. 320-1; Jerdein v. 
 Kiii;iht, 2 .1. & H. 325. 
 
 (o) Gandy v. Gandy, 30 Ch. D. 73, 
 74, 75.
 
 COVENANTS. 401 
 
 it; and therefore, where tlie agreement is l.y deed, it shall never 
 be called a nudum pactum " (q). In other respects, where at least 
 the covenantor is living, or where specific performance 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 instru- 
 ment unsealed (?•). 
 
 The same general principles obtain in Anu-rica in relati-.n to Same pHn- 
 enforcing voluntary covenants in the a.lministration of the SnSa. 
 covenantor's estate, subject, of course, to the application of local 
 statutes (s). 
 
 Where A. transferred stock into Llie names of trustees and Second .ottle- 
 executed a voluntary deed declaring the trusts, and then, by a E'c^reltcT 
 second deed, attempted to declare different 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 inopera- 
 tive and failed altogether; that it was like settling particular 
 chattels 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 settlement being one and the same fund, 
 which alone the second deed attempted to affect, no dania-^es at 
 law could be obtained on the second deed, which therefore "ave 
 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 (//). 
 
 (q) Plowd. 309 ; Shulrich v. Salmond, (.s) Kawle, Cuvenants (Anier.) -Itli cd. 
 
 3 Burr. 1637-9, 1 Fonbl. Eq. 342, ii. 659 ct seq. 
 
 (r) KeJcewich v. Planning, 1 De G. M. [t) Newton v. AsJcew, 11 Beav. Uri. 
 
 & G., per Knight Bruce, L.J., 188 ; ante, {u) Carey v. /Stafford, 3 Sw. 427. 
 p. 390. 
 
 D D
 
 CHAPTEE II. 
 
 GIFT OF LEGAL AND EQUITABLE INTEREST INTER VIVOS. 
 
 Imperfect gift INASMUCH as an imperfect gift passes no property, the question, 
 P?opertj° in the words of Lord Justice Knight Bruce, " whether an act or 
 intended act of bounty, whether a gift or a promised or intended 
 gift, was in truth a perfect act, a completed gift, resting neither 
 in promise merely, nor merely in unfulfilled intention, or was 
 incomplete, was imperfect, and rested merely in promise or unful- 
 filled 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 tlie case from which the true intention of the parties has to be 
 inferred, and the propriety of carrying that intention into effect 
 satisfactorily determined (w). 
 
 Complete gift ^ complete gift inter vivos of property of any kind whatever, 
 int^ vivos either of real or personal property, in possession, reversion, or 
 ^■a}s. remainder, or of a thing in action, or of any interest in such pro- 
 
 perty, may be efifectually made in one or other of the following 
 three ways : — 
 
 1. Tlie donor may transfer the property to tlie persons for 
 whom he intends to provide. 
 
 2. Tlie donor may transfer the property to a third person, as 
 trustee for the purposes of the settlement by wliich he provides 
 for the intended donees. 
 
 (v) Kekewkh v. Manning, 1 De G. 239; sec 2 Spcnce, Eq. Jur. 881. 895; 
 
 M. & G. 187 ; Harding v. Harding, 17 Ixwin, 8tli eiJ. cb. 6; Elliwn v. Ellison, 
 
 Q. B. T>. at p. 444. 1 Wli. & Tu. L. C. (3th ed. .300 ot seq.; 
 
 {w) Ilcartleji v. Xicholson, h. R. 19 Kq. L)av. Prcc. 3id ed. vol. 3, 686 et scq.
 
 GIFT WHEN COMrLETH. 4();{ 
 
 o. Tlie donor may declaro liiniself a tnistoo of tlio ))ropGrty for 
 the intended donees (.r). 
 
 The essential characteristic of a complete ^'ift of property by wi.ut h a 
 oitlior of tliG first two of these three ways is that tlie donor has fnh.'''.loii:i^H 
 parted witli his enlire interest in tlie property or t<. triutc-<-« 
 
 ^ * -'' for thuiii. 
 
 In order to establish a complete f^iit of property either by a 
 direct transfer to the intended donees, or lo trustees for them, it 
 must be clearly proved that the donor has done such acts afl 
 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 ac(|uire the beneficial 
 interest in the property) or on the trustees for them (//). 
 
 So, Lord Eldon said, in EllUon v. EUUon (:) : " I take the 
 distinction to be, that if you want the assistance of the Court to 
 eomtitutc you a cestui que trust, and the instrument is voluntary, 
 you shall not have that assistance for the purpose of constituting 
 you cestui c[ue trust, as upon a covenant to transfer stock. Sec, if 
 it rests in covenant and is purely voluntary, this Court will not 
 execute that voluntary covenant (a), but if the party has com- 
 pletely 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 iiow ilonor 
 declaring himself a trustee for the donees — was clearly recognized [.""is^'jf '"^ 
 by Lord Eldon in Ex 'pnrte Eye (h) when he said : " It is clear that t^"»»'^<'- 
 this Court will not assist 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 pro])erty of the cestui que trust, without 
 more, and the Court will act upon it. 
 
 (a) iMilroy v. Lord, 4 D. F. & J., per (z) 6 Ves. 003. 
 
 Turner, L.J. , 274; Warriner v. Bof/erx, (a) Coli/ear v. rountcsx of Miih/rmf, 
 
 L R \&'Eq.3iO: Ilearilei/w XirJ,ol.'«vi, 2 Keen, 81. 
 
 L. R. 19 Eq. 242.' (^) 18 Ves. 149; .V<fl- v. KdlleiceU, 1 
 
 (.(/)' See Riclumh v. DelhrUhic. T.. 1!. 18 Haic, 470, S. C 1 I'li. 342. 
 Eq., per Jesscl, M.Iv., 14. 
 
 J) D 'X
 
 404 GIFT "WHEN COMPLETE. 
 
 The question in cases of this last mode of transfer of property 
 is whether the intending donor by acts or words, in addition to, 
 and independent of, the imperfect gift, has constituted himself a 
 trustee (c). 
 
 The difficulty consists in determining whether tlio particular cir- 
 cumstances of the case do or do not shew an iatcnt'wn 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 explicit. But what is 
 necessary is that the donor should have evinced by acts which 
 admit of no other interpretation that he himself had ceased to be, 
 and that some other person 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). 
 
 Mode of dcclar- The mode in which such a trust may be declared depends on 
 ing rus . ^^^^ nature of the property. 
 
 A trust of personal property may be declared by parol or iu 
 writing (t) ; 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 (/). 
 
 Voluntary de- If a man declares himself a trustee of the property, he has 
 trust is^good. made a complete gift of the beneficial interest ([/), and therefore, 
 whatever rule there may be against enforcing a claim by a volunteer, 
 it does not apply to the case of a cestui que trust who claims 
 against his trustee. For that which is considered by the jurisdic- 
 tion of equity a trust may certainly be created gratuitously. A 
 trust is not affected by the doctrine that a voluntary agreement, 
 or mere nudum 7?rtc/!«7«, cannot be enforced by the volunteer, 
 
 (c) ITeartlcij v. Nicholson, L. Ii. 19 {(/) Meek v. KettleweU, 1 llarc, 4G4, 
 
 Eq. 242. 472, S. C. 1 Ph. 342 ; Warrhier v. 
 
 {(I) Jikharihv. Delhrhhje, L. I!. 18 Jtor/ers, L. R. IG Eq. 340; Jiicluirds v. 
 
 Eq. 15. Delhrhhje, L. P. 18 Eq. 11 ; JTcarthy v. 
 
 (e) M'droyv. Lord, 4 D. F. & J. 274; Niehohon, L. P. 19 Eq. 233; and see 
 
 post, pp. 414, 444. JIardhuj v. Harding, 17 Q. B. D. at 
 
 (/) Section 7 ; post, p. 443. p. 444.
 
 GIFT WHEN COMPLETE. 405 
 
 because in effect no contract lias liwn made witli him (//); and 
 tlierefore the absence of cdiisideration fur its creatiun is absohilely 
 immaterial (i). If the tiili; is so far comi)lete 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 estate ; and if the 
 transaction by which tlie trust is created is complete, and if what 
 has been done is equivalent 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 (/). 
 
 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 volun- 
 tary 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 according to 
 the nature of the property assigned, the interest of the donor in 
 that property, and the mode in wdiich he intended his gift to 
 operate. 
 
 The best classilication of the cases appears to be as follows : — riaiwi ilea lion 
 
 uf cnscH. 
 
 I. Cases in which the donor has botli the legal and the equit- i. Gift with 
 
 (/() Post, pp. 447 et seq. Kupportca U3 a declaration uf trust unless 
 
 {I) Kekeidchv.JUanmng,! BcG. M.Sc iur value. Lord Tliurlow used worls 
 
 G. 189-190; IJx parte Fye, 18 Ves. 140, almost identical in C'olman v. .'iarrel, .3 
 
 149 ; Sloane v. Cadorjan, Sug. V. & P. Bro. C. C. 14. 
 
 app. to 11th and previous editions, and {h) Per Lord Hathcrley (then Sir W. P. 
 
 stated in Beatson v. Beatson, 12 Sim. Wood, V.C.) in Domddton v. Donald- 
 
 291; James v. Bijdder, 4 Beav. 600; eon.Kay, 718; Lire U'uUiamjiton Jistatr, 
 
 Brosier v. Brereton, 15 Beav. 221 ; Jones 26 Ch. D. 396. 
 
 V. Loch, L. IX. 1 Ch. 25, where Lord [1) P«wZ v. P«w/, 20 t'h. D. 742. 
 
 Cranwor'th said the dictum attributed to (/") Taker v. Tohcr, 31 Jtcav. at p. t'.U, 
 
 him in Scales v. Maude, 6 De G. JI. & G. S. C. 3 D. J. & S. 487 ; ContU v. .IfA- 
 
 51, must have had reference to the special leortli, L. It. 8 Eq. 503, .064. 
 
 circumstances of the case. He was there («) ('oniiuf/iam v. riiiulctf, 2 Y. & C 
 
 clearly referring to the rule that an C. C. 245 ; Lambert v. Ocerton. 13 W. K. 
 
 imperfect legal assignment will not ho 2-J7.
 
 40 GIFT OF LEGAL 
 
 power and able interest in tlie property; or, where lie has only the equitaLle 
 
 intention to . . ^ ± 
 
 transfer hf/ul interest, hut can obtain a transfer of the legal interest, either to 
 the donees, or to trustees for them (o). 
 
 IL Gift of II. Cases in which the donor, whether he is in fact the legal 
 
 iutercsfs.' " ^^^ equitable owner, or merely the equitable owner of the pro- 
 perty, only intends to confer on his donees his cquitahle interest 
 in that property (j)). 
 
 IIL Ciift of ^^^' Cases in which the donor wishes to give his donees the 
 
 notie^alb^^^ benefit of property belonging to him, which is of a Icf/al nature, 
 assignable. but wliicli is not assignable at law (q). 
 
 In this chapter it is only proposed to consider the cases which 
 arise under the first class ; which really consist of two divisions. 
 
 Donor parts I. Cases in whicli the donor is both the legal and equitable 
 
 estate!^^" owner, and intends to convey his interest to the donees direct 
 or to trustees for them (?■). 
 
 Gift complete It is clear that where the property has been actually conveyed 
 
 when lea:al i r- t i t • ^ 
 
 transfer^is or transferred to the donees, so as to give them a good title at 
 ifTnel V la^v, the gift is complete. 
 
 ignorant of 
 
 gift. And it has been decided that a complete gift of real or personal 
 
 property vests the property in the donee at 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 affect the transfer of the legal title to the property (.s). 
 
 The Court will It is a well-establishcd principle that, if a voluntary gift is 
 intended mode intended to be effectuated in one way, the Court will not give 
 oi giit. effect to it by applying another way. 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 
 instrument would be made effectual by being converted into a 
 perfect trust (f). 
 
 io) Post, pp. 425 et seq. (/) MUroij v. Lord, 4 D. F. & J. 
 
 (/>) Post, pp. 438 et seq. 274, post, p. 414 ; Jiuhards v. Delbridf/e, 
 
 (ij) Post, pp. 45-3 et seq. L. R. 18 Eq. 15 ; Moore v. Moore, L. K. 
 
 (r) Post, pp. 407 et seq. 18 Eq. 482, 483, 484 ; Iharthij v. 
 
 (s) Butler's and Baler's Case, 3 Pep. Nicholson, L. R. 19 Eq. 241, 242 ; Li, 
 
 25 a; llwmpson v. Jjcach, 2 Vent. 198; re Breton'' s Estate, 17 Cb. D. 41; Lee v. 
 
 /SViy^er* V. JS't-QHS, 5 E. & B. 367 ; tStand- Marjrath, 10 L. 11. L-. 45, 313; lure 
 
 hujy. Bowrinff, 81 Ch. D. 282. >S'AieW,53L.T.(N.S.)5; post, pp. 430,439.
 
 AND EQUITABLE INTEREST. 40/ 
 
 But although tlie Curt will not couv.ni an im]>erfeet gift into 
 a declaration of trust nu^rdy on account of tliat ini].(.rfcction, yet 
 an intending donor may by acts or words, in addition t../and 
 independent of, the perfect gift, Iiave constituted himself a 
 trustee (?/). 
 
 This question is one of tlic 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 imperfect merely because the donor 
 was mistaken as regards 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 {n). 
 
 A gift of chattels may be made by parol ; or the chattels may Gift of 
 be assigned by deed. chattels 
 
 If the gift is made by parol, it was formerly held that it must by parol, 
 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 possession, and that until then tlie gift was re- 
 vocable (y). In Ward v. Audland (:), however, Laron Parke 
 dissented from this. 
 
 The true view seems now to be this. A parol gift of ' 
 chattels is good without actual delivery, i)rovided 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 (h). 
 
 Ten Austrian bonds transferable by delivery were given by a 
 
 (w) Ileartley v. Nlcliohon, L. R. 19 551 ; Tate v. Ililbert, 2 ^'cs. Juii. \'H), 
 
 Eq. 242 ; Baddcletj v. Baddelctj, 9 Cli. S. 0. 4 Bro. C. C. 286 ; J////*-/- v. Miller, 
 
 D. 113. 3 P. Wms. 350, 358 ; and Power v. Cooh, 
 
 {v) In re Breton's Estate, 17 Ch. D. I. E. 4 C. L. 24. 
 
 420, 421 ; but see Baddeley v. Baddeley, (y) Jenk. Cent. 109, case 9, as to 
 
 9 Ch. D. 113. which see Ward v. Turner, 2 Vcs. 442. 
 
 {w) Sho^ver v. Fllclc, 4 Ex. 478 ; and see {■^) 16 I\l. & W. 862. 
 
 Siwatky v. Wilson, F. Holt, 10, 12, n., (a) Flori/v. DeJini/,7Ex. 583; Winter 
 
 and the explanation of that case in Bimn v. Winter, 9 W. K, 747 ; Grant v. Grant, 
 
 V. Alarkham, 7 Taunt. 226-7, 2 Mars. 532, 34 Beav. 624 ; In re Ilarconrt, 31 W. K. 
 
 535-6, Holt, 352 ; Bourne v. Foshroolce, blS ; In re Jiidf/way, 15 (J. B. D. 446 ; 
 
 18 C. B. (N.S.), per Erie, C..J., .524. post, p. 410. 
 
 {.r) Irons v. tSmaUjiiecc, 2 B. & Aid. (b) Hill y. iriV.son, L. K. 8 Ch. 888,896.
 
 408 GIFT OF LEGAL 
 
 memorandum signed by the testator, and indorsed on the box 
 which contuineil ihcni, and its kvy 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 incomplete (r). So where A., the owner of an 
 old sword, wrote to 11, 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. ((/). 
 
 But where A. had insured his life and given the policy, 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 ((■)• 
 
 The mere delivery of a deed, accompanied by a parol agreement 
 to give the debt due on an equitable mortgage 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 cliarge, which cannot be transferred by a parol 
 agreement, and therefore a good gift of the deed itself cannot be 
 made by a mere delivery of it (/). 
 or by ileed. A complete gift of chattels can also be made by deed. Tn 
 
 this case, as the p-opcrty in the chattel passes by the deed, it is 
 immaterial whether possession has or has not been delivered to 
 the donee {(j). The cases in which want of possession has been 
 held to make such gifts void are those in which such absence of 
 possession was evidence of fraud against third parties (Ji), 
 
 Gift rcturneil. If a gift of money be made and the person to whom it is given 
 restores it to the owner, or in any way puts it back under his 
 control, or into his power, tlie gift is at an end (i). 
 
 (c) r/-i'«jmcr V. Z'aK?'//, 25L. J. (N.S. {y) Sliep. Touch, 285; Com. Di?. lif. 
 
 Cli. 424; but sec In re Ilarcourt, 31 Biens. D. 2; Caiw v. Ihirdins, 1 CM. 
 
 W. 11. 578. & K. 782, 788, 5 Tyrw. 300, 31G ; 
 
 {J) Doufjlas V. Douf/lm, 22 L. T. (X.S.) f'lylfff/crs v. Evans, 5 E. & B. 307. 
 
 127. (h) Ante, pp. 113 ct scq. 
 
 (e) Eiimmcns \. I fare, 1 Ex. D. lOO; {/) Jamas v. James, lH L. T. (X.S). 
 
 but sec In re liichanhun, 30 C'li. D. :!'JG. 809, 811, per Sir J. Stuart. 
 
 (/) In re IHchardson, 30 Ch. D. 396.
 
 AND EQUITABLE INTEREST. 409 
 
 Every person wlio receives a gil't of course receives that j,'ift Cift c.,,,. 
 subject to wliatever conditions tlie donor may liave eliosen to '''^"""''• 
 impose upon it, and until and unless such conditions are fuUilled 
 by the donee the gift is incomplete (/.•). So a gift of i)ropc'rty 
 subject to a mortgage by the donor remains primarily liable to 
 pay tlie mortgage debt (/.•/,•). 
 
 The chief class of gifts, whether of chattels or otlier personal Don.-jtio 
 property, to which a condition is always annexed by the donor or """^"'' ""*''^' 
 implied by the law, is that of donations mortis causa. 
 
 Such a gift must be made by the donor in contemiilation of 
 the near approach of his death. The condition to which such a 
 gift is always subjected, either by tlie donor or by inijilication of 
 law, is that the gift is to take effect onh/ in the event of th(! 
 donor's death. The thing given must, also, always be (hliirrnf 
 to the donee, whether absolutely for his own benefit or upon 
 some trust (/). 
 
 It is because the transaction did not amount to a complete wiim not 
 delivery, but was merely an order for deli\"ery not fully carried ^'^ ' 
 out, being revoked by the death of the giver of the order, that a 
 gift of a cheque, drawn by the donor on his bank, wliether jiayable 
 to bearer or to order, and not presented for }(a}'iuent till after his 
 death (m), even with the delivery of his bankers' pass-book to the 
 donee (n), 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 (/>), or of railway debenture scrip (/j), liave been held not to 
 be good donations mortis causa. 
 
 So, the subject-matter of the gift having been completely when good, 
 delivered to the donee, a gift of a banker's deposit note, with the 
 view of giving the donee the whole sum secured by it (r), of a 
 
 (/.) Scale V. Jfa>j»c, 12 W. I^. 239; (-0 Beak v. neal; L. 1!. 13 E.j. -ISO; 
 
 Lonrjdulc v. Longihik, 1 \'cin. 45f) ; Jlulls v. Pcarce, 5 Ch. D. 730. 
 
 Grant v. Grunt, 34 Bc;iv. ijii"), (327 ; In (o) In re Mend, 1.0 CIi. D. 65J. 
 
 re Whitalcer, 21 Ch. D. Crol. (p) M'Gonndl v. Murrou, I. IJ. 3 F.'i. 
 
 {hh) Owen v. BraddcU, 7 Ir. l\. Ya{. 4GU. 
 
 358. ('Z) ^^^<Jorc V. Jloorc, Jj. II. IS Ivj. 
 
 (/) See Ward v. Turner, 2 Ves. 474. 
 
 4ai, 1 AVh. & Tu. L. C. Gill cd. 1077 ct (r) Amix v. If7//, .33 Bcav. 610; JAwrc 
 
 scq. ; Dunne v. Boyd, I. I?. 8 Eq. GOO ; v. Moore, L. U. 18 Eq. 474; and sec In 
 
 Cross V. Cross, 1 L. R. Ir. 3S'J- re Mead, 1.5 ( h. D. 651 ; Dunne v. Boyd, 
 
 [m) Hewitt V. Kaye, L. R. G Kq. 198. I. K. 8 Eq. m.
 
 410 
 
 GIFT OF LEGAL 
 
 Ciift of cheque. 
 
 Choses in 
 action origin- 
 ally non- 
 assignable 
 in law. 
 Some now 
 leff'iJIi/ assign- 
 able by 
 statutes. 
 
 promissory note, ■whether indorsed or unindorsed (x), of a bill of 
 exchange payable to self or order, indorsed or unindorsed (t), of a 
 cheque drawn by the donor on his own bank to order, but 
 negotiated by the donee througli a foreign bank (?/), 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 pro})erty which, or the security for which, passes by 
 delivery, will be valid when delivered to the donee with the 
 intention of giving expressed {w). A promissory note, or bill of 
 exchange, or checpie payable to bearer will pass by delivery (f). 
 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 delivery, 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 wliere 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, and 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 conq)lete gift (h). 
 
 By the common law no choses in action are assignable (c), 
 except bills of exchange by the law merchant. 
 
 By different statutes the following kinds of choses in action 
 have been made Icgcdly assignable. lUlls of exchange, cheques, 
 and promissory notes {d), indorsed bills of lading {c), policies 
 of life assurance, either by indorsement, or by assignment by 
 a separate instrument, written notice being given to the coni- 
 
 («) Veal V. Ved, 27 Beav. 303 ; Cle- 
 ment V. Cheeseman, 27 Ch. D. 631. 
 
 (0 In re Mead, 15 Ch. I). G51. 
 
 (m) lioUa V. Pearce, 5 Ch. D. 730. 
 
 (i) Clement v. Cheescman, 27 Ch. D. 
 631. 
 
 (ic) M'CiiUoch V. Bland, 2 Gifl". 428 ; 
 Farhtf/tun v. 2 'arkcr, L. H. 4 Eq. 1 1 6. 
 
 (x) 45 & 40 Vict. c. Gl, ss. 31 (2), 84. 
 
 (>/) I/euitt V. Kayp, L. 11. 6 Kq. 198. 
 
 (2) Tate V. Jlilbert, 2 Ves. Jim. 111,4 
 Bro. C. C. 286. 
 
 {(t) lirumh'}! v. Bruntnn, L. 11. Eq. 275. 
 
 (/>) Stunfield V. 2UUcr, Appendix No. 
 VIII. ; and see post, pp. 453 et seq. 
 
 (c) 2 Bl. Com. 442 ; 10 Co. 48 ; Co. 
 Litt. 232 b. 
 
 (d) Ab & 46 Vict. c. 61, ss. 31, 38, 73, 
 83, 84. 
 
 (/?) 18 & 19 Vict. c. Ill, 8. 1.
 
 AND EQUITABLE INTEREST. 411 
 
 pany (/); policies of inariiie assuriuico ],y imlorsement ((/}, rail- 
 way (h) and East India bonds (/), and stocks, shares, luort-agt-, 
 and other debentures according' to the i.n.visioiis of the respective 
 Acts of Parliament liy wliicli they are created or regulated. 
 
 By the Judicature Act, 187:J (A), "Any absoluic (mvjnmnil by .ludicninro 
 writing under the hand of the assignor (not purporting to be by '^'''' "*'"'- 
 way of charge only) of any debt or other lajnl chose in action, of 
 which express notice in writing shall have been given to tlie 
 debtor, trustee, or other person from whom the ;i.ssignoi- wnuhl 
 have been entitled to receive or claim such debt or chose in 
 action, shall be, and be deemed to have been, eHeetual in law 
 (subject to all equities which would liave 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 goixl discharge for the same, 
 without the concurrence of the assiLfUor." 
 
 This section does not create any nev/ right, but merely confers 
 a new way of enforcing old rights (/). 
 
 Its scope is limited to " debts and other legal choses in action." Section only 
 It does not apply, to ft/uitahlc choses in action at all, however clioscs in 
 assigned. ''^''"'• 
 
 For the section to apply in any particular case, the following 
 three conditions must be fullilled to make that chose in action 
 assignable in law which before this xVct was not so assign- 
 able (m) : — 
 
 The subject-matter assigned nnist be "a debt or other l<yal 
 chose in action." Tlie mode must be an absolute assignment 
 
 (/) 30 & 31 Vict. c. 144; see Scottish (h) 8 & 9 Vict. c. 19. 
 
 AmicaUe Life Assurance Society v. (/) 51 Geo. 3, c. G4, s. 4. 
 
 Faller, 2 I. R. Eq. 53 ; Crossleij v. Cit>i (/.) 30 & 37 Vict. c. 06, 8. 25 (0), whicli 
 
 uf Glasf/ow Life Assurance Co., 4 Ch. D. came into operation on Nov. 1, lb75; sec 
 
 421. 37 & 3S Vict. c. 83, sa. 1, 2. 
 
 {g) 31 & 32 Vict. c. 80; see Lloi/d [I) Waller v. Bradford Old Bunk, 
 
 V. Flemincj, L. R. 7 Q. B. 299; Xortli of 12 Q. B. D. 515. 
 
 England Pure Oil Cake Co. v. Archanrjcl ("') See the notes to 7i'//«« v. JlowUs, 
 
 Maritime Lisurancc Co., L. R. lU Q.B. 2 Wli. & Tu. I. C. Gth ed. 799 ct 
 
 249. seq.
 
 412 GIFT OF LEGAL 
 
 by writiug, not purportiiv^ to be by ^vay of cliarge only (n). 
 
 Express notice in writing of the assignment must have been given 
 
 to the debtor (c>). 
 Voluntary -^ covenant in a voluntary deed or an agreement not to exercise 
 
 powe? ^^^ equitable power operates in erpiity as a good release of the 
 
 Copyrights PO^^'er (p)- Copyrights in books (q) or in designs (r) are legally 
 assignable by assignable bv writing only, 
 
 writing. 
 
 Tower of ""^ power of attorney may sometimes l)e validly exercised after 
 
 attorney. the death of the person who gave it (s). 
 
 Gift of right As the right to sue is incidental to tlie conveyance of property, 
 
 voiOabL^dee'd. ^^^^ passes with it, SO A., after liaving sold property by deed to B. 
 
 by a sale voidable in equity as fraudulent, may afterwards give 
 
 that property to C. By such gift, if complete in itself, A. gives 
 
 to C. the right to set aside the fraudulent sale to B. (f). 
 
 Gift to charity. A gift to a charity must be made in accordance with the 
 statutes which apply to charities {ff). 
 
 Leaseholds Leaseholds must be duly assigned, and freeholds duly conveyed 
 
 <)]i(I rccil tjsttitc 
 
 h..w trans- ' (")> ^Y ^leed ; and copyholds must be actually surrendered (v). 
 
 ferrcd. 
 
 Thus in Caiman v. Sarrd (v) Lord Thurlow said : " Where 
 a deed is not suhicient, 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 executed a voluntary agreement. To do 
 so would be to make him who does not sufficiently convey, and his 
 executors after his death, trustees lo the })crson to whom he has 
 so defectively conveyed ; and there is no case where a Court of 
 equity has ever done that." 
 
 ()i) Xatlonal Provincial Uanlcy.Jfarle, 428; sec J-'.v parte Pi/c, 18 Ves. 140; 
 
 6 Q. B. D. 626; Burlimon v. HuV, 12 Lcjiard v. Ven)0)),2 V.&B.51; ,'<pooner 
 
 Q. B. 1). 347 ; Walker v. Bradford Old v. Sandilands, 1 Y. & C. C. C. 390 ; and 
 
 Banlc, 12 Q. B.I). 511 ; Ibberson v. Xecic, see now 45 & 46 Vict. c. 39, ss. 8, 9. 
 
 Times Itep. (1880) 411. (t) JDicIciiison v. Burrell, L. R. 1 Eq. 337, 
 
 (0) Walker v. Bradford Old Bank, 342 ; see Blake v. Johnson, Prce. Cli. 142. 
 12 Q. B. D. 511. {It) See 9 Geo. 2, c. 30; ITuukivs v. 
 
 (;>) Isaac v. JlvyJus, L. II. 9 Eq. 101 ; Allc», L. 1\. 10 Eq. 24(5. 
 
 Farsveli, Pow. 14. (») Billon v. Coppin, 4 My. & Cr. 647; 
 
 (7) 5 & Vict. 0.45; Poucr v. KV/.tr, Jlridr/c v. Bridge, 10 Beav. 315. 
 
 3 M. & S. 7; Lci/lund v. /ilcirarf, 4 (?•) Jejftri/s \. Jcffri/s, Vr. & V[]. 13R; 
 
 Cb. D. 419. Tatliam V. I cnio//, 29 Jkav. 004; Wood- 
 
 (r) 6 & Vict. 0. 100; Jewill v. ford \ . Vharnkn 28 Beav. 00. 
 
 Eckhardt, 8 (.'h. 1). 404. {w) 1 ^'eB. .Tun. 54; and see Allornrif 
 
 (1) Kiddid V. Farnell, 3 Sm. & Giff. General v. WJioricood^ 1 Ves. 535, bo'J,
 
 AND EQUITABLE INTEREST. 413 
 
 Stocks, shares, Londs, debentures, and other securiiies which StockH unj 
 are not assignable at law unless duly transferred, must be didy frniSrrei! 
 transferred (n), and n(jt merely assigned or covenanted lu bu iruns- 
 forred (//). 
 
 Thus in Antrohus v. Smith {::) G. C, liaving ten shares in the Antrobwt y. 
 Forth and Clyde Navigation, signed the following indorsement u])on *"'"'' 
 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 tlie Clyde 
 and Forth Navigation ; " but kei)t the paper in his own possession. 
 It was held that this indorsement was not a complete gift, and 
 could not be enforced after his deatli. Sir W. Grant said : 
 
 " This instrument of itself was not capable of conveying the 
 property. It is said to amount to a declaration of trust. Mr. C. 
 was no otherwise a trustee than as any man may be called so who 
 professes to give property by an instrument incapable of conveying 
 it. He was not in form declared a trustee ; nor u-as that mode of 
 doing what he i^t'oi^oscd 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 
 assignment ? There is no case in which a party has been com- 
 pelled to perfect a gift which, in the mode of making it, he has 
 left imperfect." 
 
 This case was followed by Dillon v. Cop-pin (a), where a D!Uon v. 
 man assigned East India stock and shares in 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 ^vere necessary to 
 
 (x) Ante, pp. 403, 411. Bridge v. Briihje, IG Beav.315; Beech v. 
 
 (?/) Witherden \. Jv-mper, T^o&i, \^'pQn- Keep, 18 ]5eav. 285; iiearle v. La>r, 15 
 
 dix No. XI.; Colman v. Sarrel, 1 Ves. Sim. 95; Lambert v. Overtoil, 13 W. K. 
 
 Jun. 50 ; Ellison v. Ellison, 6 Ves. 656 ; 227 ; contri, Airey v. Jlall, 3 Sui. & Gifl". 
 
 Ex parte Pye, 18 Ves. 140, 145 ; Coning- 315 ; ante, pp. 389 ct scq. 
 
 ham V. Plunlcdt, 2 Y. & C. C. C. 245; {z) 12 Ves. 39, 4G. 
 
 (rt) 4 My. & Cr. 647, 670.
 
 414 GUT OF LEGAL 
 
 transfer the legal estate to others. Indeed, as to the East India 
 stock, the deed recites tliat P. was al)Out to transfer it in order to 
 effect his intention Here is no contract, Lnt a deed-poll pro- 
 fessing,' 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 Antrohus v. Smith (h). There the gift was in favour of a 
 child, but it was voluntary and imperfect, and the instrument was 
 found in the father's possession. I believe that case to have been 
 well decided, and nothing wliieh has since occurred affords any 
 reason for departing from the principle upon which it is founded. 
 .... It was indeed argued that the father had by that in- 
 strument made himself a trustee of the property. That argument 
 was attempted in Antrohiis v. Smith (h) ; l)ut 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 perfect- 
 ing the gift by a transfer of tlie stock, and endeavours to provide 
 the means by which the grantee may obtain the legal title " (c). 
 
 The Court will Tlius, in Mil)w/ V. Lord {(t), Sir (r. J. Turner, L..T., said : '• I 
 
 hi^ended mode ^^^^^ ^'^^^ ^^^^^' ^^ ^^"^ ^^^^'^ ^° ^^ ""^'^^^ settled, that in order to 
 of gift. render a voluntary settlement valid and effectual, the settlor mu.st 
 
 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 binding upon 
 himself. He may, of course, do this by actually transferring the 
 property to the persons for 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 for the purposes of the 
 settlement, or declares that he himself holds it in trust for those 
 purposes ; and if the property be personal, the trust may, as 
 I apprehend, be declared either in writing or by parol (0. But, 
 in order to render the settlement binding, one or otlier 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 imperfect gift. 
 
 (b) 12 Ves. 30, supra, p. 41.3. 
 (c) Ellison V. Ellison, Yes. C5C, CG2 ; (<!) 4 1). F. & J. 274 ; ante, p. 40G. 
 
 Pulvertoft V. Fulccrloft, 18 Ves. 81, 90. (c) Scr post, p. 444.
 
 AND EQUITABLE INTERKST. 415 
 
 The cases, I think, go furUier Lu this exLcut : that if the settlement 
 is intended to be effectual by one of the modes to which I have 
 referred, tlie Court will not <jivc efcd to it h;/ nrplifuuj anatha- of 
 those modes. If it is intended to take effect by transfer, the Court 
 will not hold the intended transfer to oi)erate as a declaration 
 of trust, for then every imperfect instrument would be made 
 effectual by being converted into a perfect trust." 
 
 Where the donor is the actual owner both of the legal and the ImpoHect gifts 
 beneficial interest in the property, the real dillicuky in this class T^oS** 
 of cases usually turns upon the question whetlier the donor, by his '^'^'^^'"-''^ ^y 
 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})lete transfer by the 
 donor both of his legal and of his beneficial interest in the property 
 to 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 liis present beneficial interest in it, in favour of his 
 donees. 
 
 In Warriner v. Rogers (/) an unmarried lady shewed A. a lio.x Wnrnmr v. 
 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 that he 
 must not open it till after her death. She retained the key. She 
 afterwards made her will, and gave her residuary real and ]>cr.s(inal 
 estate to B. After her death the box was opened. In it was found 
 a closed envelope, with a paper writing inside it, written, dated, 
 and signed by the testatrix, and addressed to A., stating in efl'ect 
 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 mentioned in it. After the testatrix' death 
 A. found another paper writing dated the day after tlie date of 
 the first paper writing in the handwriting cf and signed by the 
 (/) L. R. 16 Eq. 340.
 
 41G GIFT OF LEGAL 
 
 testatrix, aud addressed to A. This paper stated where the title- 
 deeds of the real estate specified in the first paper writing were. 
 
 Bacon, V.C., held, following Milroij v. Lord {g), that the two 
 papers were of a testamentary character, and therefore could not 
 be enlarged or converted into a declaration of trust ; that the 
 donor had no intention of parting with anything at the time she 
 signed the first paper, wdiich was not intended to take effect until 
 after her death ; and that the second paper was plainly of a 
 testamentary cliaracter, 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 declaration of 
 trust — the indispensable thing — I take to be, that the donor or 
 grantor, or whatever he may be called, should have absolutely 
 parted with tliat interest which had been his up to tlie time of 
 the declaration— should have effectually changed his riglit in that 
 respect, and put tlic property out of his power, at least in the 
 way of interest" (//). 
 
 J?ir],arih v. This casc was followed with approval by Sir George Jessel, ^M.Pi., 
 
 in Richards v. Delbridge (i); in which the facts were as follows. 
 
 D., tlie owner of leasehtjld 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 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 deatli, to his family. 
 
 Sir George Jessel, M.Pt., held that there was no valid trust 
 declared in favour of E.,and, dissenting from Richardson v. Richard- 
 son (k) and Morgan v. Malleson (/). followed Milroi/ v. Lord (g) 
 and Warriner v. Rogers (;/;), and laid down tlie true distinction to 
 
 ((j) 4 I). F. & .T. 274. (0 L. R. 18 Eq. 11 ; and see Moore 
 
 (h) L. R. 16 Eq. 348 ; but st-e lUcJi- v. Moore, L. R. 18 Eq. 474 ; Lee v. Ma- 
 
 ardaon v. liichardnon, L. R. 3 Eq. 686 ; (jrath, 10 L. R. Ir. 45, 313. 
 
 iind Morf/an v. Malleson, L. R. 10 Eq. (/.) L. R. 3 Eq. 680. 
 
 475. (/) L. R. 10 Eq. 475. 
 
 (m) L. R. 16 Eq. 340. 
 
 Delbridge.
 
 AND EQUITABLE INTEREST. 417 
 
 be this : " Fur a man to make liiniself a trustee tlun-e must be an 
 expression of intention to beeonic a trustee, wliereas words of 
 present gift shew an intention to give over ]troperty to another, 
 and not retain it in the donor's own liands for any ]»urpose, 
 fiduciary or otherwise " (?t). 
 
 In HmrtJnj v. NiclioJson {<>) A., the owner of several sliares in UeartUtif 
 a colliery, wrote to his daughter, saying, " I have another jtresent •^"''"'''""' 
 to make shortly, one share of Ryhope Colliery, and you may n(jw 
 consider you have tliis to yourself from January 2 to receive 
 dividends upon." After attending a meeting of sharelioldcrs at 
 which his proposal to transfer the share to his daughter was 
 agreed to, and signing an entry to that effect (admittedly in- 
 sufficient 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, anil, in rejily 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 sliareholders. Subsequently, A. by liis will 
 bequeathed one share in the colliery to trustees upon certain 
 trusts for his daughter, and devised and bequeathed his residuar}' 
 estate to his sons. The daughter claimed to be absolutely 
 entitled to another share in the colliery besides the share be- 
 queathed to her, on the ground that A. had by his acts and M'ords 
 made himself a trustee of one share for her. 
 
 Bacon, V.C., after pointing out that no perfect transfer was at 
 any time made by A., but that A. intended to give, and believed 
 he had given, the share to his daughter, proceeded to consider all 
 the circumstances witli regard to tiie following question, — "Whetlicr 
 A. had by acts or words or both, in addition to, and indi'iicndent 
 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 liad 
 become, the beneficial owner of the share, and whelhrr A. h;id 
 retained the legal right to it, if any, merely in trust for her. He 
 
 (») L.E.lSEq. 15. V. Crons, 1 I- l!. Ir. .'J-^'.' ; IIVW v. HV»/, 
 
 (o) ].. Ii. 19 Eq. 233; ami sec Cross 9L.U. Ir. I'.'l. 
 
 Y. K
 
 418 GIFT OF LEGAL 
 
 held that all A. wix.te and all A. did related to a gift or transfer 
 of a nature wholly different from a trust ; and, following Milroy v. 
 Lord (j)), his own decision in Warriner v. Hoycrs (q), and 
 Eichards v. Ddhridgc (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 imperfect or ineffectual 
 attempt to pass the legal title to property Icgalli/ assifjnallc can 
 never be treated as a valid declaration of trust. 
 
 Jiichanhon v. The lirst of these cases is that of Richardson v. Richardson {s). 
 
 Jiicluirihon. rpi^g^.g j^^^ l^y j^ voluntary deed, assigned to B. certain specific 
 property, and " all other her personal estate," and appointed hhn 
 her attorney, to recover, receive, and give receipts for the same. 
 At this time A. held two promissory notes, the one payable on 
 demand to A., the other payable to A. or order (0- At the 
 death of B., the assignee, the notes were found amongst his papers, 
 but not indorsed. On the principle of Xd-acich v. Mannimj {u), 
 that an instrument intended as a present and complete assign- 
 ment will be supported in ecpiity, and may be considered to 
 operate as a perfect declaration of trust, it was held by Lord 
 Hatherley (then Sir W. P. Wood, \.C.) that the property in the 
 notes passed by the deed to B., on the ground that the deed of 
 assignment operated as a complete declaration of trust by A., of 
 all her property, in favour of B. 
 
 Morrian v. In the secoud case— that of Morgan v. MaUcson (r)— A. gave 
 
 Ma(k$on. j^_^ Morris, his doctor, the following memorandum, signed by him 
 
 and attested by two witnesses : " I hereby give and make over 
 
 to Dr. Morris an India bond. No. D 50G, value £1000, as some 
 
 token for all his very kind attention to me during illness." The 
 
 (^) 4D.F. &J. 274. Blahehj v. Bradii, 2 D. & AVal. 311, 
 
 (a) L. R. IG Eq. 340. the promissory note was not assignable 
 
 (/•) L.R. 18 Eq. 11. at law. 
 
 [h) L. K. 3 Eq. C8G; commented on (c) L. R. 10 Eq. 475; commented on in 
 
 in Warriner y.ltogers, L. R. 10 Eq. 348; Warriner v. Itogers, L. R. IG Eq. 348, 
 
 liichardu v.l)dhri(l(je,\uA\.\^Y.c[.\^,\A. 349; liichards v. DeJhridtje, L. R. 18 
 
 [t The finst note, it will bo observed, Eq. 13, 14; Baddelei/ v. Baddeley, 9 
 
 was not assignable at law. Ch. D. 113; and see Dav. Tree. Conv. 
 
 (v) See Stat. 3 & 4 Anne, c. 8. In 3rd cd. vol. 3, G89-G90.
 
 AND EQUITABLK INTEREST. .} 1 ;j 
 
 India bond, which was transferaljlo by delivery, was kej.t Ijy A. 
 By his will A. bequeathed his residuary personal estate to 
 charities. 
 
 Lord Pioniilly, MJJ,, Ik'M that the nicniorandiiin was equiva- 
 lent to a declaration of trust in favour of Dr. :\lMiiis. If the 
 donor had said, " I undertake to hold the bond fnr 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 thinf^. 
 
 Lord Eldon's decision in Re ^w?'/r rue. (ir) was riuotcd in 
 Mehardson v. Richardson (x) as an autliority for the ju-oposiiion 
 that the power of attorney was a good declaration of trust. 
 
 In that case the donor, wishing to purchase an annuity for a Ex parte I'ijf. 
 lady resident in France, authorized his agent there by writing to 
 purchase it in her name and to draw on liim for the necessary 
 funds. The agent, finding the lady was married and also 
 deranged, exercised 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 transfer tlic 
 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 re])ort to shew that the dnnoi- ti-catcd 
 the annuity as belonging benefleially to tlif lady, ami thai he 
 considered himself as only holding the legal interest fnr Iht 
 benefit (//). And the power of attorney was evidence thai he 
 had constituted himself a trustee, and that he meant to give 
 up his trusteeship and transfer the legal interest ; but it is haid 
 to see how the jwwer of attorney itself eould be taken to liave 
 made him a trustee, for by it he intended to get rid of the Ifjal 
 interest and to be no longer a trustee (c). 
 
 {w) 18 Ves. 140; and see Bome acUli- among the records of llie Court or the 
 
 tional particulars in 2 Spence, Eq. .lur. papcvB in the matter of the hinncy. 
 53, n. It was a cause in lunacy, the real {.r) L. \l. 3 Eq. tJ8G. 
 
 title of which was Ex 2>arte Jfoirbra;/. (//) See T/ioij>c v. rTiwi, 5 Heftv. 224. 
 
 The Master's report of the 27th of Feb- (.) See DilUn, v. Coppiii, 4 My. & Or. 
 
 niary 1811 is the only document whiih lul; ante, p. 41:5. 
 is material on tliis point to he fuuinl 
 
 E i; -1
 
 420 GIFT OF LEGAL 
 
 Lord Ekittn saiil it was not necessary to decide whether the 
 power of attorney had been well exercised, " as upon the docu- 
 ments before me it does appear that thouoli in one sense this may 
 be represented as the testator's personal estate, yet he has com- 
 mitted 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 Warrincr v. llogcrs (h) 
 by Bacon, V.C., who there pointed out that it fell distinctly 
 within the principles of Milroy v. Lord (c), and that in Bx 
 2Mrte Pyc (d) Lord Eldon's judgment proceeded emphatically upon 
 the documents before him. Although there might not have been a 
 cumplete transfer, yet there had been a parting with the posses- 
 sion. The meaning and intention of the transaction 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. 
 
 Transfer by Conveyances and assignments of property, whether real or 
 
 wife. personal, from a husband to his wife have been the subject of 
 
 frequent and conflicting decisions. 
 
 It has for some time been doubted whether a different 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 the husband in favour of a stranger ; whether, in 
 fact, a transfer 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 wliich 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 
 to that property (c), he must, therefore, be deemed to have 
 
 (a) See Aire;/ v. Hall, 2 Sm. & Gifif. (c) 4 1). F. & .T. 264. 
 
 315; Parnell v. Hlnygton, 3 .Sm. & Gilf. {d) 18 Ves. 340. 
 
 337; Kvld'dl v. Farnell, 3 Riu. & Giff. (e) Co. Litt. 187 h',PhUlip8 v. Barnet, 
 
 428, 5 AV. R. 793; Wecde v. OlUrc, 17 1 Q. 15. 1). 438, 441; and see Lewin, 
 
 Beav. 252 ; and Yandenherrj v. J'ulincr,^ Trusts, Stli ed. G8-C9 ; but see now 44 & 
 
 K. &.T. 204, 214. " 45 Vict. c. 41, 8. 50; 45 & 40 Vict. c. 75, 
 
 {h) L. R. IG Eq. 350. ss. 1 (1), 2, 5; post, pp. 424, 425.
 
 AND EQUITABLE INTEREST. 421 
 
 intended to make liiinsrll' a tni.slee fur his wife, in order to make 
 his gift to her eH'eetual {/). 
 
 In Orani v. (/noit {;/), Nvhidi was a easo of a gift of clialtels (inmtx. 
 by a hus])and to liis wit'c, Loid hNimiHy, M.i;., kiid down this dis- ''''""'■ 
 tinetion as the ground of his deeision tiiat the husband had nuidu 
 himself a trustee of the cliattels for his wife : "In the case of 
 husband and wife there cannot be a delivery of a ehattel, and, 
 therefore, it is impossible to give tliai coiniikaion to tlie gift that 
 would be necessary to give effect to it between strangers. There- 
 fore this comes under tluit class of cases in whicli it has been lield 
 that, though there is not an absolute delivery, a declaration of 
 trust is suflficient " {h). 
 
 Tliis has been followed with ii])proval by Malins, Y.C, in nmUhhyy. 
 Badddey v. Baclldnj (/). nadddaj. 
 
 In this case a husband executed a deed poll, by which he gave 
 certain leasehold houses and ground-rents in Mitldlesex to his wife, 
 in the following terms : — " I do hereby settle, assign, transfer, and 
 set over unto my said wife, E. B., as thougli slie 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 intention of the recent Act 
 of Parliament entitled the Married Women's Property Act, 1870." 
 This deed was duly registered in the ^Middlesex Picgistry, and 
 E. B. entered into the receipt of the rents. 
 
 Malins, Y.C, held this was a case where the husband liad 
 declared himself a trustee for liis Avifc, and that her entry into 
 possession was a taking possession of her separate property under 
 the trust. The husband was, W) doubt, mistaken in thinking he 
 could make this gift by way of assignment, but there was enougli 
 in the deed to make it operate as a declaration of trust which thr 
 Court ought to carry out. 
 
 It will be observed that the decision here turned upon tlic fact 
 
 (/) See remarks of Hall, V.C, in /)i re [h) Grant v. aranf, ?A I3cav. 024, 
 
 Breton's Estate, 17 Cli. D. 419, 420. G2,5 ; but see the comments on ibis case 
 
 (g) 34 Beav. 623 ; but see Price v. in In re Breton's Estate, 17 Cli. D. 420. 
 Price, 14 Beav. 598, S. C. G05. (0 9 Cb. D. 113.
 
 ■422 GIFT OF LEGAL 
 
 of E. B.'s entry into possession and receipt 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 (Z). 
 
 loxwHairhs. This has been followed by Bacon, Y.C, m Fox v. Hmcks (/). 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 wliicli he and she alone were parties, assigned a leasehold 
 house to her, " to liold the same unto the said E. A. E,, her 
 executors, 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, Y.C., held thai 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 liis 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 enaljle her to deal with tlie 
 house, and he declared the husband a trustee of the property 
 for lier. 
 
 It should be observed that the judgment in this case does not 
 establish an exception to the general rule of law as 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 liarmony Aviili the general nde of 
 law on this sul)ject. 
 
 On the other hand, apart from tlie effect of the Conveyancing 
 Act, 1881 (m), and of the Married Women's Property Act, 1882 
 {mm), an imperfect gift from a liusband to his wife has been treated 
 in precisely the same way as if such gift had been made liy one 
 stranger to another stranger. Inasmuch as in law, till recently, a 
 
 {h) See the comments on this in Ilaycs v. Alluoicc Co., 8 L. II. Ir. 151. 
 (/) 13 Ch. D. 822; commented on in (m) 44 & 45 Vict. c. 41, 8. 50. 
 
 7)1 re JJretoii's J'Jstatc, 17 Cli. D. 422. (mm) 45 & 40 \'ict. c. 75
 
 AND KQUITABL]'] IxNTlOIlKST, 423 
 
 husband could not convL'.y or assign property lo liis wif(', the only 
 question that couhl arise in sucli a case was whether or iKjt he had 
 made liimsolf a, trustee for liis wife. This ([iicstion was tested liy 
 tlie principles laid down in Milroy v. Lord (n), and followed in 
 Bicharch y. Ddhruhjc (o), and, unless a clear intention to create 
 such trust could be proved, the Court would not perfect an im- 
 perfect gift by midving it take effect in a way not intended l-y 
 the donor. 
 
 So in Moorr v. Moure (//), TIall, V.C, held tliat a gift of railway M<mrcv. 
 scrip certificates l)y a husband to his wife, on wliich he received ' 
 the dividends and paid the amount of them tn licr down to 
 the time of liis death, being a gift made by him to his wife in an 
 insufficient way, through ignorance of law, could Jiot 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 liill had been filed liy the next 
 friend of the wife against the husband in his lifetime. 
 
 The sameprinciple was a pplied in Ireland in the case of Haycn 
 v. Alliance, Co. (q), where an assignment of a policy by a husband 
 to his wife by deed poll attested by one witness was held not to be 
 a declaration of trust, because the intention of the husband was 
 merely to assign the policy. 
 
 This principle was carefully reconsidered, in the recent case of /" rr, Breton's 
 ^ ^ Estate. 
 
 In re Bretons Estate (r), by Hall, V.C. 
 
 In that case a husband, by three letters written and signed by 
 him, and given by him 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 subject, 
 pointed out that the principle laid down in Milroij v. Lord (/<), 
 
 (n) 4 1).F.&J. 204. (2) « 1- 1^- I'"- ^"^^ - ''"'^ «"° ^" ^• 
 
 (o) L. R. 18 Eq. 11. Jlagrath, 10 L. R. Ir. 45, 313. 
 
 (/)) L. R. 18 Eq. 474, 481, 482. (r) 17 Ch. D. 41G.
 
 4-24 GIFT OF LEGAL 
 
 aud followed by Sir G. Jessel, ^Lll., in li'icJtards v. Dclhridgc (.s), 
 uas applicable to every case of a L^ift, M'itliout any exception as 
 to a gift from husband to wife. That principle was that, if a 
 gift was intended to take efl'eet by transfer, the Court would not 
 hold the intended transfer to operate as a declaration of trust, 
 for then every imperfect instrument wuuhl be made efi'ectual by 
 being converted into a j)erfect 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, A'.C. — 
 namely, that imperfect gifts between husband and wife must 
 be tested in the same way as imperfect gifts between two 
 strangers. 
 
 In consequence, however, of recent statutory changes, these 
 
 conflicting decisions have become much less important. 
 
 Conveyancing IJy the Conveyancing Act, 1881 (t), which applies only to 
 conveyances executed after December 31, \Qd>\, freehold land, or a 
 tldng 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 i^roperty within tliis Act, this question cannot arise with 
 respect to it, as the conveyance will, by virtue of the Act, efiect 
 a complete transfer of the property comprised in it. 
 
 Married ]3y the Married Women's Troperty Act, 1882 (w), which came 
 
 Women's '' i j ' \ /' 
 
 Property Act, into Operation on January 1, 1883, every woman, whenever 
 married, may after December 31,1882 (reacquire rr?iy 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. 
 
 Tlie principles laid down in MU roij v. Lord {iv}, and followeil 
 in Richards v. Dclhridyc (.s) and in In re Bretons Estate (x) 
 according to which gifts between husband and wife are tested in 
 
 («) L. ];. 18 Kq. 11. (v) Sec Griffitli, 5tli cd. 14. 
 
 (/) 44 & 4.') Vict. c. 41, ss. 1 (2), 50. ("•) 4 D. F. & .1. '2(34. 
 
 in) 4.'>&46Vict. c.7.5,S8. 1 (1), 2,5, 25; (x) 17 Cb. D. 410. 
 see (Jriflitli, 5th ed. ?,, 4, 77.
 
 AND EQUITABLE INTEREST. 425 
 
 tliG same way as gifts between two .sti-anger.s, will iuav, it i.s cuu- 
 ceived, always apply. 
 
 luasmucli as the Court looks in each case to what is j. roved Covenant to 
 to have been the real intention of the parties, it follows that a M!r,t''iJul't 
 voluntary instrument may operate hufh as an iiiii)L'rfcct assigiiniciit "**■■"'"'''''''■■• 
 and as a valid declaration of trust. 
 
 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 licld that though the covenant 
 could not per se be enforced, yet a valid trust was constituted 
 for the volunteers (//). 
 
 It makes no difference that the donee, by becoming at the l^-gal litlo 
 death of the donor his personal representative, has been enabled dllL'c uftcr- 
 himself to perfect the imperfect assignment (:). The nature of a^S'l'" "'^ '"^ 
 the assignment cannot be altered after the death of the donor. 
 
 II. The second division (zz) consists of cases in which tlie Donor tlio 
 donor is only the equitable owner, but can obtain a transfer of the own'cr wiili 
 legal estate, either to his donees directly, or to trustees for them ; '',""''■'' 1° ,. 
 
 (^ ' </ ' ) (ibtaiti Iranstt-r 
 
 and intends to do so. "f legal estate. 
 
 In this class of cases the gift is of course complete .so soon as 
 the donor has actually conveyed, transferred, or assigned, as the 
 case may require, his equitable interest in the property, whether 
 real or personal, to the donees ; and has also procured a transfer 
 of the legal estate 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 of the trustees, and trusts have been declared, 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 (?'), 
 
 (ij) iSteelc V. Waller, 28 Bcav. 460 ; My. & K. .'j(i:5 ; Dilrow v. Bo,u\ ;J 
 
 31arkwell v. Marhudl, 34 Beav. 12, 14. (Jift'. .OoH ; Jefferys v. -hffcrys, Cr. h. 
 
 (s) Dillon V. Voppin, 4 My. & Cr. I'll. 138 ; Miig(jcrldrje\. >il(tntou,l "W'.W. 
 
 647; and see Stroixj v. Bird, L. R. 18 638 ; Jlilrui/ v. Lurd, 4 D. F. 6c J. 264 
 
 Eq. 315. infra. 
 
 (c:;) Ante, p. 406. (6) EUi-son v. Ellison, 6 Vcs. 656, notes 
 
 (a) Fulvertoft v. I'ldrertoft, 18 Ves. to 1 Wh. & Tu. L. ('. 6th ed. 302 ; .VmiV/t 
 
 84, 99 ; Attorneij- General v. Whorivood, y. Lync, 2 Y. &C. C. C. 345 ; WfwatUy v. 
 
 1 Ves. 535, 5'dd ; Bill v. Cureton, 2 Burr,! Keen, bb\; Broione\. Cavendish,
 
 Bridge. 
 
 426 GIFT OF LEGAL 
 
 to M-liom the tnistees cannot transfer it without a breach of 
 rust (<•). 
 Bridge v. In Briihjc V. Brichje (d), the property the subject of tlie vohm- 
 
 tary settlement consisted of certain real estate, shares in companies, 
 foreign bonds (transferable by delivery), consols, and casli at a 
 bank. The legal estate in all this property was at the date of 
 the settlement vested in the trustees and executors of the settlor'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-tvv'o years of age, by a voluntary deed conveyed all 
 his interest 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 considered, 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 exe- 
 cution, but the consols and cash remained in the names of the 
 executors, and the foreign bonds remained in their custody. 
 
 Lord Eomilly, M.R., held that the true construction of the 
 deed was that, until the transfer of the legal interest 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 interfere to complete or create ; and that, as to the personal 
 estate, the settlement was only efiectual with regard 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 
 settlement could not then operate as a conveyance of the legal 
 estate, no estate passed to the trustees under the deed, whicli was 
 so far inoperative. It could not operate as a declaration of trust, 
 
 1 J. & Lat. G.37 ; and sec liycroft v. ('/) IG Ikav. 315 ; but see Siig. V.&T. 
 
 Christ;/, 3 Bcav. 238, 242 ; post, p. 44.5. 14th ed. 710, and Dav. Tree. Conv. 3id cd. 
 
 (c) McDonnell v. Jlesilrifje, 10 Bcav. vol. 3, G03 ; In re J\.i»g, 14 Cb. D., per 
 
 346. ' Hall, V.C, 184.
 
 AND EQUITABLE INTEREST. 427 
 
 because it did nut j)urp()rt tu luaku the trustees of the will irustees 
 to the donees under the settlement. 
 
 The principles upon which JJrii/;/i- v. J.'rii/;f (f) was decided 
 by Lord liomilly, M.ll., were adhered t(j l.y him in the subse(iuent 
 case of Beech v. Kecj) (/). In that case consols, l)elon<^ing bene- Beech y.Kerp. 
 ficially to A. for life, with remainder to V>. absolutely, stood in the 
 names of two trustees, of the survivor of whom ]>. was tlie sole 
 executrix. The consols remained in the nanus of the twu 
 trustees after their deaths, but B., as sole executrix, receiverl the 
 dividends and paid them over to A. B., after the death of the 
 two trustees, by a voluntary deed assigned all her reversionaiy 
 interest in the consols to A., " to the end and intent that he 
 might become present and absolute owner thereof," and A. 
 executed a release of even date to B. of all claims. B. subse- 
 quently refused to execute a power of attorney to transfer the 
 consols to A. 
 
 Lord Eomilly, ]\I.1I., held, following Brichjc v. Brichjc {/), that 
 this was a case in wliich the relutinn of trustee and cestui (pie 
 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 defendent 
 (B.) subject to the life interest of the plaintiff (A.). The volun- 
 tary deed was merely an incomplete assignment v.-hich juight and 
 ought to have been perfected by the transfer of the consols, if 
 both parties had been 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 case of BruJf/c v. BriJ^/e {g) has been doubted l)y Lord 
 St. Leonards (h), so far as it decides that the conveyance of an 
 equitable estate in real property to \olunteers is invalid. 
 
 (e) 16 Beav. 315. (/') Sug. V. & T. 14th cd. 719 ; and 
 
 (/■) 18 Beav. 285; soe Sug. V. & P. see Dav. IJrd ed. vol. 3, 693; and In re 
 
 14th ed. 719. A7»y. 1^ Ch.D., per Hall, V.C, 184. 
 [fj) IG Beav. 315.
 
 428 GIFT OF LEGAL 
 
 Lord Hatheiley (then Sir W. P. Wood, V.C), in Gilbert v. 
 Overton (i), also commented on this decision. 
 
 Gilbert V. In Gilbert V. Ovcrtoji (k), a settlor, holding an agreement for 
 
 a lease snbject to rents and covenants, by a 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 ouglit to be executed. 
 
 Here there was notliing to shew that the settlor intended 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 (/) ; 
 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. Ihit 
 in Bridrje v. Bridge {)n) it appeared that the settlor intended 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 liad 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 (n) to cases in which the 
 donor, though merely the equitable owner, had the power to vary, 
 and attempted to vary, the legal title. " The true construction 
 of the deed," said Lord Eomilly, I\I.Pi. (o), in Bridge v. Bridge (m), 
 " seems to me to be, that until that transfer took place the 
 relation of trustee and cestui que trust was not to arise, and that 
 until it did arise it was only an imperfect gift, which this Court 
 would nnt interfere to complete or create " Q>). 
 
 It will also be observed that in Bridge v. Bridge (m), tlie deed 
 contained a covenant for further assurance, and an agreement to 
 transfer the personal estate ; and that the executors of tlie will 
 did, in pursuance of this agi'eement, transfer to the trustees of tlie 
 
 (;■) 2 il. & M. 11<;. (/») 16 Bcav. 315. 
 
 {k) 2 11. & M. 110; pobt, p. 430. (») 12 Vcs. 39; ante, p. 413. 
 
 ( /) See 2 H. & M. IIG ; and bcc iJlUon (o) 16 Bcav. 326. 
 
 V. Coppin, 4 My. & Cr. 671, as to the {p) See M'Donncll v. Ilesilrirjc, IG 
 
 intention of pcnecting a gift by transfer. Beav. 348.
 
 AND EQUITABLK INTKUKaT. 42'. 
 
 deed certain shares while the .setthn- was under the agu of twenty- 
 five years. Tiie suit, luureovcr, 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, exceitt as to the 
 shares, done all that he could to transfer or jiroeure a transfer of 
 the legal estate in the property scuttled. 
 
 In Gilbert v. Occrton (7), Lord Ilatherley (then Sir AV, V. 
 Wood, V.C), said: " I do not wish to say more as to Jiri(/;/r v. 
 Bridge (r) than this : that the point there dealt with will rec^uire 
 much consideration. A man who conveys his eipiitalile 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, perhaps 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 Ite 
 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 intend to deal with a legal estate 
 of which lie was ignorant. The decisions in Brithjc v. Bridge (/•), 
 and Beecli v. Keep (,s-) are ex'pressly confined to cases in which 
 the settlor intended and ineffectually attempted to pass the legal 
 interest, and are not really opposed to any other cases. 
 
 In Woodford v. Chemdey {t) A. was the mortgagee in fee of Wiuui/.ird v. 
 
 freeholds conveyed to her to secure £-jOOO and interest, llie 
 
 deed contained no covenant for payment of tlie £5000. A. by 
 
 a voluntary deed assigned the sum of £-jOOU to trustees upon 
 
 certain trusts for herself and children, and gave them a power of 
 
 attorney to recover it. The legal estate in the freeholds remained 
 
 in A. 
 
 (q) 2 H. & M. 11(5 («) 18 Beav. 285. 
 
 (r) 16 eav. 315. (0 28 Beav. 9G.
 
 430 
 
 GIFT OF LEGAL 
 
 Difference 
 between cases 
 where owner of 
 equitable 
 estate controls, 
 and where lie 
 has le(nil 
 estate. 
 
 True test tlic 
 intention of 
 settlor at the 
 time. 
 
 Piesulting 
 trust to settlor. 
 
 It was lield that, as in order to recover the money the lei.;al 
 estate must be reconveyed, and as there was no means of obtain- 
 ing a reconveyance of tlie legal estate from the settlor to the 
 owner, the settlement was incomplete, and could not be enforced. 
 
 It will be observed that the class of cases in which tlie donor 
 is merely the equitable owner, but can control the legal estate 
 (though vested in trustees) so as to vest it in new trustees for his 
 donees, differs from the class of cases in wliich the donor has 
 himself the legal estate as well as the equitable interest, in one 
 important respect. 
 
 In the former class of cases of imperfect legal transfer, the 
 property is already the subject of a trust, and tlie Court can 
 therefore deal with the beneficial interest as merely an equitable 
 interest — subject alwa}'s to this qualification, that the Court will 
 not for a mere rolnnfccr alter the intended mode of assignment (u). 
 
 Tlie 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 h^gal transfer, or did he 
 merely intend an equitable assignment, or did he mean a declara- 
 tion of trust ? (r) 
 
 "Wliether 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 pro- 
 perty, so as to fully carry out the intention of the settlor ; and if 
 that has not been fully carried out, the ineftectual transfer will 
 not be upheld by the Court as a declaration of trust («'). 
 
 But even where the })roperty has been completely transferred 
 to, and well vested in, the trustees, a further ([uestion 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 ? (.7) 
 
 So the absence of words of limitation in a voluntary settlement 
 
 ((/) Ante, pp. 400, 407, 415: post, p. 430. 
 
 (v) Ante, p. 404. 
 
 (!'■) Tote V. Illlbert, 4 Bro. C. C. 28G ; 
 Patlerncn v. Williams, LI. & G. (t. PI.) 
 95; JlewHt v. Ktoje, L. E. G Eq. 198; 
 
 IVealev. Olliir, 17 Beav. 252 ; IJof/arth 
 V. PhUI'ipx, 4 Drew. 300; In re Mield, 
 5.'S L. T. (N.S.) 5. See cases infra. 
 
 (r) See Lewin, Tr. 8th cd. ch. 9; 
 Elpliinstonc, Deeds, ch. 20.
 
 AND EQUITABLE INTEREST. 43] 
 
 of real estate has been lield to create a resultin- trust in favour 
 of the settlor {y). But a luemoraiidum by 15. on the title deeds 
 of an estate, " I give lilackacre to A.," and a subsequent convey- 
 ance by B. of that estate to A. by a general description, if B. 
 lias no intention to change the previous gift, would pass the 
 property to A., and not create a resulting tnist in favour ..f 
 B. (-:). So a voluntary settlement of property duly assigiu^d to 
 trustees upon trusts which could arise only on an event which 
 could never occur creates a resulting trust in favour of the 
 settlor {a). 
 
 And where a person desiring to settle stock caused it t(. be Locus pmni- 
 transferred to trustees, and approved a draft declaration of trust, **'"^'"'' 
 it was held that there was a locus pcenitentiic, and tliat the 
 trusts did not attach, unless the draft had been formally 
 authorized before the transfer to the trustees {h). 
 
 Closely connected with this is the (lucstiou whether the trans- Doos trans- 
 feree takes the property beneficially, or takes it impressed with a Je'','Jefic'iariy or 
 
 trust ((.'). on trust? 
 
 This question was carefully considered by Sir (\. Jessel, '^i.Vu, Strong v. 
 in Stronrj v. Bird (d). '^''*''- 
 
 The facts in that case were as follows: — A. borrowed £1100 
 from his stepmother, then living in his house, and paying him 
 £212 10s. each cj[uarter for her maintenance, 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 quarterly 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 
 
 {>/) iVIddleton v. UarJcer, 29 L. T. \V. II 117 ; and James v. Jame.^, I'M.. T. 
 
 {N.S.)G43. (N.S.) 8U9. 
 
 (,-) Strong v. Bird, L. E. 18 Eq. (c) Lewin, Tr. 8th cil. cli. 9 ; and see, 
 
 318. as to precatory trusts under wills, Lloi/d 
 
 (a) Fawson v. Frown, 13 Ch. D. 202 ; v. Chune, 2 Gift". 441 ; June-i v. Budley, 
 
 ante, p. 334. I,. 1{. 3 CIi. 3G2 ; M'Connlch v. Grogan, 
 
 (h) Be Si/Jces' Trusts, 2 J. & II. 415 ; L. R. 4 H. L.82 ; Jn re Bot/e.i, 2GCh. D. 
 
 Conhnjham v. Flunlcett, 2 Y. & C. C. C. 531 ; Jarman, 4tli cd. 388 ; Tbcobald, 
 
 245 ; and see Muggeridge v. Stanton, 3rd cd. 354 et seq. 
 
 7 W. R. G38 ; Fen'fuld w' Mould, L. 1!. 4 (</) L. R. 18 Eq. 315 ; and fpo Buttle 
 
 Eq. 562 See also Boberts v. Boberts, 15 v. Knocker, 46 L. J. (X.b.) Vh. 159.
 
 432 GIFT OF LEGAL 
 
 stepmother on tiie couuterfoils of the cheques drawn ])y her, she 
 refused to make further deductions ; and henceforth up to the 
 time of ]ier death, which occurred more than nine quarters after- 
 wards, 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 w^as due from him to the estate and there was 
 a trust of it in favour of his stepmother's next of kin. 
 
 Sir (i. Jessel, M.Pi., 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 w'ill had appointed the alleged donee executor. 
 After her death he proved the will, and the legal efiect of that 
 was to release the debt in law, and therefore the condition 
 reciuired — namely, that the release should be perfect at law — was 
 complied with by the testatrix making 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 l)e 
 made for another purpose ; but if the gift was clear, and there 
 was to be no recall of the gift, and no intention to recall it, so 
 that the person who executed the legal instrument did not intend 
 to invest the person taking upon himself the legal ownership 
 with any other character, there was no reason wliy tlie legal 
 Continuing instrument should not have its legal effect. The debtor would 
 give. be liable in a Court of equity, unless he could shew some reason 
 
 for not being made liable. In this case there was proved a 
 continuing intention to give. There being the continuing intention 
 to give, and there l^eing a legal act which transferred the owner- 
 ship or released the obligation — for it was the same thing — 
 the transaction was perfected, and tlie debtor did not require 
 the aid of a Court of equity to carry it out, or make it com- 
 plete. 
 
 So in Sfcmding v. Bowring (c), where A. transferred stock into the 
 joint names of herself and B., and received the dividends thereon, 
 (e) 27 Ch. D. 341, S. C. 31 Ch. D. 282 ; and sec Fon-hes v. Pascoe, L. E. 10 Cli. 343.
 
 AND EQUITABLE INTEREST. 433 
 
 but did not infunu ?,. of this trausfer, it was held, upon an 
 application by A., two years afterwards, for a rctransfer of the 
 stock into her solo name, tliat as iiinm tlie evideiici! A. ajiitcarcd 
 to have made this transfer for the express imrpose of beneliting 
 B., and with the intention that L. sliould have the stock abso- 
 lutely if he survived her, the Court could not compel a retransfer 
 by B. 
 
 The general rule is that a complete transfer of property by a 
 voluntary donor, whicli is effectually vested in trustees f(jr his 
 donees, is irrevocable (/). 
 
 To this rule the following class of cases forms an important 
 exception : — 
 
 It has been established l)y a series of decisions that a legal Assignments 
 
 . to IniHtees for 
 
 assignment or transfer Ity a debtor ot his property to trustees on payment of 
 trust for the payment of his debts, 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 itself it does not create a trust in 
 favour of all and every or any of the creditors {li). 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 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 
 executed 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). 
 
 (/) Ante, p. 405 ; post, pt. v. ch. iv. (h) Johns v. James, 8 Cli. D. 740, 750, 
 
 (g) Walivyn v. Coutts, 3 Mer. 707, S. C. per James, L.J. 
 3 Sim. 14 ; Garrard y. Lord Lauderdale, (i) Kinloch v. Secretary of State Jur 
 
 3 Sim. 1, S. C. 2 Kuss. & My. 451 ; Jcton Lidia in Council, 15 Ch. D. 1. 
 V. Woodgate, 2 My. & K. 495; lien- {k) Smith v. HurM, lOJIarc, 30; and 
 
 riques v. Bensusan, 20 W. R. 350 ; Gkrjg see Lewin, Tr. Slh ed. cli. 20, s. 2 ; notes 
 
 V. Ree$, L. IJ. 7 Ch. 71 ; Johns -v. James, to Ellison v. Ellison, 1 Wli. it Tu. L. C. 
 
 8 Ch. D. 744. 6th ed. 303 et scq. 
 
 F F
 
 434 ASSIGNMENTS TO 
 
 Distinction The distinction between trusts for the benefit of creditors and 
 
 4n"rally'amr ti'usts fof the benefit of mere donees was clearly pointed out by 
 trusts to pay i^i^ Q, J, Tumer, L.J., in Smith v. Htu-d (I), as follows: — 
 
 debts. ' ' ^ ^' 
 
 " In cases of trusts for the bcneiit of particular persons the 
 party creating the trust can have no other object 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 
 interest had been transferred to them ; but in cases of deeds pur- 
 porting to be executed for the benefit of creditors, and to which 
 no creditor is a party, the motive of the party executing the deed 
 nuiy have been either to benefit his creditors or to promote his 
 own convenience ; and the Court therefore has to examine into 
 the circumstances for the purpose of ascertaining what was the 
 true })urpose of the deed ; and this examination does not stop 
 with the deed itself, but must ]je carried on to what has sub- 
 sequently 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 contract, 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 poiver to the trustees (j?), so that the revo- 
 catory power of the donor extends not only to varying the 
 trusts {q), but it is like putting money into the hands of an agent 
 for a special purpose ; tlie money and authority can be recalled 
 at pleasure until they have been acted on (r). 
 
 Rights of As such a deed is regarded merely as an arrangement for the 
 
 fcich decds'^'^°^ convenience of the assignor and assignee, the assignee undertaking 
 
 the agency of the affairs of the assignor, it follows upon principle 
 
 (/) 10 Hare, 30. [v) >'^'>iiith v. Kcutinij, G C. D. 136; 
 
 (;h) See also as to the distinction, por ./o/o^s v. ./«?«es, 8 Ch. D. 749. 
 Sir E. Sugdcn in Simmonds v. I'alles, 2 (</) Tiiis is all tbat Lord Eldon decided 
 
 J. & Lat. 489, 5(J4; Johns v. James, in Walwunw Coutts,'^ ^\cY.H)l,&nAiy\r 
 
 8 Ch. D. 749, 750. •'. Leach in Adoa v. Wuodfjutc, 2 My. 
 
 («) Bill V. Cureton, 2 :\Iy. & K. 003, & K. 492. 
 oil, ct supra. (r) &nlth v. Jfurst, 10 Hare, at 
 
 (o) IToqarth v. rhlUl.ps, 28 L. J. (N.S.) p. 47. 
 Cb. 195.'
 
 TRUSTEES TO PAY DEBTS. 435 
 
 that, ill such a case, ik. creditor can take advantage of tlic deed 
 unless it has been conmiunicated to him (s). 
 
 So, until such coninuinication, llie deed will not 1)0 enforced at 
 the suit of creditors claiming under it (/), or against the personal 
 representatives of tlie debtor after liis deatli (//), or as against tlie 
 trustees (r), much less against creditors prejudiced by it (w). 
 
 Fi'om the time tlie decil has been communicated to a creditor, a Wlien dccJ 
 valid trust is created in liis favour, and the relation between tlie IrreT^'ablc. 
 debtor and the trustee ceases to be that of mere princii)al and agent. 
 Such communication may be proved by the creditor liaving exe- 
 cuted the deed (.>■), by his having acted upon the faith of it {>/), 
 or been a party and privy to it (z), and of course by its con- 
 tents having been communicated to him (a). 
 
 The creditor to whom the communication is made alunc derives Dei-d may bo 
 any right under the deed from that fact ; it does not enure for the ar^^omr 
 benefit of any other person or persons to whom no such com- ^'■°'^''"''' °"'j^- 
 munication has been made (h). 
 
 If the debtor transfers his property to a creditor as trustee, it 
 seems that, unless the trustee dissents^ the deed is, as to tluit 
 creditor only, irrevocable (c). 
 
 But the trust cannot be revoked by the settlor so as to defeat 
 or interfere with any act of the trustees in carrying out tlie trust 
 before its revocation (d). So, too, the assignee may in execution 
 of the trusts take steps as against third parties (c), though not 
 against the assignor, so long as the trust remains revocable. 
 
 (.s) S)jnnot V. /Simpson, 5 H. L. C. 121 ; 707, S. C. 3 Sim. 14; Garrard v. Lord 
 
 Gicf/f/ V. jRees, L. R. 7 Ch. 71 ; Johns v. Laxulerdule, 3 Sim. 1, S. C. 2 Ru.ss. & 
 
 James, 8 Ch. D. 744. My. 451. 
 
 (t) La Touchc v. Earl of Lucan, 7 CI. (a) Harland v. Binls, 1.5 Q. 15. 71.) ; 
 
 & F. 772. Johns V. James, 8 Ch. D. 750. 
 
 (m) Garrard v. Lauderdale, 3 Sim. 1 ; {b) Griffith v. Ricletts, 7 llarc, 307 ; 
 
 ReSander's Trusts,A" L. J. (N.S.) Cli. (JG7. Johns v. .hnncs, 8 Ch. D. 750. 
 
 (v) Wilding v. Jiichards, 1 Coll. G55. {c) >Sif/rjers v. Ju-ans, 5 Ell. & 1!. 307 ; 
 
 {w) Smith V. ILurst, 10 Hare, 30. Acton v. IWiodi/ate, 2 My. & K. 495; 
 
 (x) Glecjcj V. Bees, L. E. 7 Ch. 71 ; Hohson v. Thelluson, L. R. 2 Q. B. 64S, 
 
 Johns V. James, 8 Ch. D. 750. 649 ; Be Samkr's Trust, 47 L. J. (N.S.) 
 
 (//) In re Baher's Trusts, L. R. 10 E(i. Ch. 047 ; Johns v. James, 8 Cli. D. 744. 
 554; Johns v. James, 8 Ch. D. 750. (d) WHdintj v. Bichards, 1 Coll. 055, 
 
 {z) JFad-innonx. iStetvart, I fiim. (yi.S.) 0.59; nnd see Kirwaii v. Bichards, 5 
 
 89 ; Field v. Donovrihmore, 1 Dru. & Hare, 493. 
 
 War. 227; lV<dwi/u y. Coults, ?, Mcr. {(■) Gler/rj v. Ji'res, ].. U. 1 Ch. 11. 
 
 V V -2
 
 43G 
 
 ASSIGNMENTS TO 
 
 Principle not 
 applied to any 
 other class of 
 cases. 
 
 Such deed 
 an act of 
 bankiuptcy. 
 
 Analogous 
 case of revo- 
 cable trusts. 
 
 Of course, the fact that the trusts have been acted upon, or at 
 least communicated to the creditors, will not be enough if the 
 trusts were merely intended to establish an agency, and to be re- 
 vocable (/). 
 
 This principle has never been applied to any cases other than 
 arrangements for the payment of creditors. Thus it has never 
 been applied as between the settlor 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 {(j). 
 
 Such a deed, however, whether it is communicated to the 
 creditors or not, is an act of bankruptcy, either if it is for 
 the benefit of the creditors generally and comprises all the 
 debtor's property (A); or under tlie Bankruptcy Act, 1883 {i), 
 if it comprises only a part of his proi)erty, but is a fraudulent 
 preference. 
 
 Notwithstanding the distinction above referred to, there are 
 cases of imperfect gifts for the benefit of particular persons which 
 are treated in the same manner as trusts for creditors (/.), upon 
 the ground that 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 Hii/jhcs V. ^tulhs (/) 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 
 chefjue. A. died afterwards. 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 sucli dominion, not- 
 withstanding he may have vested the property in trustees and 
 
 (/) CorntJiivaiie v. Frith, 4 De G. & 
 S. 652 ; and see Jlalcolm v. -bfco^, 3 Hare, 
 39, 46. 
 
 (r/) Paterson v. Murph;/, 11 Hare, OO, 
 91 ; and see iSynnot v. tiiiiq/son, 5 11. L. 
 C. 141. 
 
 (h) Brlttain v. Brown, 24 L. T. (N.S.) 
 504 ; Bankruptcy Act, 1883 (4G&47 Vict. 
 
 c. 52), 88. 4, G ; Kobson, 5th ed. 154 et seq. ; 
 ante, pp. 94 et seq. 
 
 (/) 4G &47 Vict. c. 52,8.4 (1) C. 
 
 (/.) See also t^'ipinot v. tSimpson, 5 H. 
 L. (I. 121, 138-9; Jlontefiore v. Brown, 
 7 H. h. C. 241, 266. 
 
 (/) 1 Ilarc, 47G ; and see Maguire t. 
 Dodd, 9 Ir. Ch. Bep. 452, 457.
 
 TRUSTEES TO TAY DEBTS. 437 
 
 have declared a trust in favour of third persons" (///), the trust 
 was revocal)le, tliat no present interest Avas eonferrcil on C, and 
 that A. did not part witli any present interest in the sum in 
 question or create any trust for the legatee (71). 
 
 So also at law, where a sum of money was jiaid by A. into tlie Same prin- 
 hands of B. for the benefit of a third person, it was held to be a '''''*-■ "^ '""'• 
 countermandable gift, and tliat A. might recover it back by an 
 action for money had and received so long as it remained in iJ.'s 
 hands (0). 
 
 (m) Walwyn v. Coutts, 3 Sim. 14, and Moseleif,31 Bcav. 159 ; Field v. Lonsdale, 
 
 other cases supra. I3 15cav. 78. 
 
 (m) See the comments on this case in (0) Taijlor v. Lendej/, 9 East, 40 ; and 
 
 Faterson\. jVarj)}/)/, 11 Hare, 91-92 ; and see M'illiams v. A'verilt, 14 East, 5S2 ; 
 
 see Gash'll v. (laskdl, 2 Y. & J. 502 ; >Scott v. Perchor, 3 Mer. 052 ; Malrohu v. 
 
 iimithy. Wardc, 15 Sim. 5G ; Vandenherg Scott, 3 Hare, 39. 
 V. Palmer, 4 K. & J. 214, 218 ; Peddcr v.
 
 CHAPTER III. 
 
 GIFTS OF EQUITABLE INTEREST INTER VIVOS. 
 
 Gifts of 
 equitable in- 
 terests alone. 
 
 Donor, the 
 le(/al owner, 
 converts liim- 
 self into a 
 trustee. 
 
 Same prin 
 
 ciple applies 
 to uU kinds of 
 property. 
 
 Cases in which the donor, whether he is in fact the legal and 
 equitable owner or merely the equitable owner of the property, 
 intends only to confer on his donees his cquitalk interest in that 
 property. 
 
 This class of cases really consists of two kinds. 
 
 I. Cases in which the donor is loth the legal and the equitable 
 owner of the property (2^). 
 
 In these cases the donor can only effect his object in 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 de- 
 claration, in trust 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 representa- 
 tives, 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 (.s), or if 
 his property is incapalde of legal transfer (/), he can convert 
 
 (7)) Post, pp. 445 ot seq. 
 
 (7) Ellison V. Ellison, G Ves. C5C, 
 CG2 ; Ej-j)artc Pije, 18 Ves. 140 ; JJrosler 
 V. Brereton, 15 lieav. 221 ; >S'e«r/e v. Laiv, 
 15 Sim. 95 ; Brldye v. JJridrje, 10 Beav. 
 321 ; M'Fculden v. Jcnlijm, 1 Hare, 
 4C0-1 ; Meek v. Ketlkioell, 1 Hare, 470-1, 
 S. C. 1 Ph. 342 ; >S7ce/<? v. Waller, 28 Peav. 
 4GG ; (jlraij v. Gray, 2 Sim. (N.S.) 273 ; 
 Wilcochs V. Ilannywjtov, 5 Ir. T'li. ]{cp. 
 38; Wheatleyv.Purr, 1 Keen, 551 ; post, 
 pt. V. ch. iv. 
 
 (r) Ante, pp. 187 et seq. 
 
 (.9) Jlcek V. Kettlewell, 1 Hare, 470-1, 
 S. C. 1 Ph. 342 ; Patcraon v. Murphy, 
 11 Hare, 88; liichardson v. liichardson, 
 L. P. 3 Eq. G8G ; Parher v. >'Sloncs, 38 
 L. J. (N.S.)Ch. 4G. 
 
 (0 Vernon v. Yalden, :\IS. 1722-3, 
 post, Appendix Xo. VI. ; Meeh v. Kettle- 
 vell, 1 Hare, 474-G, S. C. 1 Ph. 342 ; 
 Collin son \. Putrid; 2 Keen, 123; post, 
 pp. 453 et seq.
 
 GIFTS OF EQUITABLE INTEREST. 4,^.0 
 
 liimself into a Inisteo by merely declaring himself a trustee 
 of tliat interest or ].ro])erty for his donees (v) ; and it has been 
 decided that a man may convert himself into a trustee of 
 tlie title deeds of land held by him as security for a debt, the 
 (lel)toi' being at the same time made a trustee of the debt for the 
 same cestuis (|ue trust (r). 
 
 The dilliculty in tliis class of cases is to determine what Wimt is a 
 constitutes a sulllcient declaration of trust by the donor. duraii'un of^' 
 
 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 luid not declared himself a trustee 
 for his donees. 
 
 The Cnurt will not in the case of rolt'ntar// instruments, uidess Court does 
 the donor be clearly proved to have intended it (/'•), uphold a il^per1rc,|'t da. 
 settlement upon the ground 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 rendering 
 it effectual in a way the donor did not contemplate (.r). 
 
 The question, therefore, becomes narrowed to this one. Assum- Question 
 
 merely 
 
 ing that the donor intended to convert liimself into a trustee for whetlier donor 
 his donees, has he taken effectual steps for this purpose ? effectual stopq. 
 
 The one indispensable condition for a valid declaration of trust What declura- 
 
 , -, , , 111-11 1 T> •s.r r\ ■ tion of trubt 
 
 by the donor has been clearly laid down by Lacon, V .L., in i„ust i^e_ 
 Warrincr v. Rogers (y), followed by Sir CJ. Jessel, M.H., in 
 liichards v. Delhridge (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 himself of 
 its hcncficial ownership ; and he must, in some way or other 
 amounting to a valid declaration of trust, declare that he thence- 
 forward holds that property in trust for his donees. 
 
 [u) See Lewin, Trusts, 8tli cd. 6S. 
 
 {v) Farler v. Stones, 3S L. J. (N.S.) (.'•) Ante, pr- ^^^< ^^'^ '^l^; F^t, p. 
 
 Ch. 46. 445. 
 
 ((/•) Milroy V. Lord, 4 D. F. & J. 264 ; (y) L. E. 16 Kq. 040 ; ante, p. 41.^ ; and 
 
 Rkhar(h V.' I)eJbri(lf/e, L. R. 18 Eq. 11 ; see Heartle>/ v. XirUwn, L. R. 19 Eq. 
 
 Lee V. Maqrath, 10 L. R. Jr. 4a, 313 ; Li 233. 
 
 re Shield 53 L. T. (N.S.) 5 ; ante, p. 404. (r) L. R. IS Eq. 1 1 : ante, p. 410.
 
 440 GIFTS OF EQUITABLE INTEREST 
 
 The declaration itself to be effectual must be 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 as a de- 
 claration of trust (h) ; nor will expressions wdiich import nothing 
 more than a determination to divide property among certain 
 persons (c) ; nor will the expression of an intention to do some- 
 thing in the future (d). So a gift which is really testamentary — 
 that is to say, where the donor 1ms 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). 
 
 Acts or words The acts or words which are relied upon to establish the fact 
 rehed on must ^|^^ ^j donor lias declared himself a trustee for his donees must 
 
 Bupport no 
 
 other view. admit of no other interpretation. It is not enough that they are 
 consistent with it, or merely equivocal (/). So the mere fact 
 that the donor hai regularly transmitted to the donee the dividends 
 on the stock as they became due from the time the incomplete 
 gift of that stock was made to the donee is not enough ([/). 
 
 Valid declarn- The following acts havc been held valid declarations of trust : — 
 
 tion3 of trust. 
 
 The execution of a power of attorney, after treating the 
 property as subject to tlie trust (h), entries in the books of the 
 firm of which the donor was a partner (^), a letter written to 
 co-trustees directing payment of future dividends (/.•), the donor 
 
 (a) Dipple V. Corks, 11 ITarc, 183; (e) In re Joseph Patterson's Estate, A 
 Cotteen v. Missing, 1 Mad. 170, 185; D. J. &S.422; Warrincr y. Hogers,\j.'S.. 
 Hughes V. tStttbhs, 1 Hare, 476; /Scales v. IG Eq., per Bacon, V.C., 340; and see 
 Maude, G De (J. M. & G. 51 ; Jones v. In re Shield, 53 L. T. (N.S.) 5. 
 Lod:, L. R. 1 Cli. 25 ; Magnire v. Dodd, (/) JJlpj^lc v.Corles, 11 Hare, 185, 187 ; 
 9 Jr. Ch. Rep. 452 ; Pen/old v. Mould, Ileartley v. Xicholson, L. l\. 19 Eq. 242. 
 L. R. 4 Eq. 5G2 ; Be Glover, 2 J. & H. (g) Milroy v. Lord, 4 D. F. & J. 2G4 ; 
 18G ; Forles v. Forbes, G W. R. 92 ; In Moorev. Moore, L. R. 18 Eq. 474 ; Heart- 
 re Mills' Estate, 7 AV. R. 372. ley v. Xicholson, L. R. 19 Eq. 233. 
 
 {L) DipiAe \. C'orl&f, n H&re, 1S3. (h) Ex parte Pye, 18 Ves. 140; 2 
 
 ((■) iJipple V. C'orles, 11 Hare, 183; Spence, Eq. Jur. 53, n. In Richardson v. 
 
 Pie Glover, 2 J. & H. 18G ; and see Pichardson, L. R. 3 Eq. G8G, the mere 
 
 Forbes v. Forbes, G W. R. 92 ; In re execution of an assignment witli power of 
 
 Mills' Estate, 7 W. R. 372; Jonesy. Loci:, attorney was licld a declaration of trust ; 
 
 L. 1!. 1 Ch. 25 ; Lister v. Hodgson, L. R. but vide ante, pp. 418, 419. 
 
 4 Eq. 30. (i) ,Staphton v. Htaplcton, 14 Sim. 18fi ; 
 
 (d) Bottle V. Knocker, 4G L. J. (N.S.) and see Gray v. (rray, 2 Sim. (N.S.) 
 
 Ch. l.oO. 273, and Forbes v. Forbes, G W. R. 92. 
 (k) Bentley v, Mackay, 15 Bcav. 12 ; and sec Euant v. Jennings, C W. R. G16.
 
 WHEN COMPLETE. 44 1 
 
 having a sum of money transferred l^y lior bankers to mi account 
 in the joint names of the donees and herself as trustee for 
 them (/), mixing another fund with one of wliieh trusts had been 
 declared {m), and treating tlie aggregate fund as held on trust (»), 
 investing a further sum in the names of the trustees of a settle- 
 ment without informing them (0), letter and memorandum in 
 diary {i>), memorandum {q), letter by a debtor to his creditor (/•), 
 or promissory note (s), M'ith payment to the trustees secured Ijy 
 deposit of title deeds, a receipt in the following form : " deceived 
 of D., for the use of A., £100, to be paid to A. at ]).'s death, l)ut 
 interest at i per cent, to be paid to D." {t) ; a promissory note 
 given by a husband 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 15. '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 {v:) ; 
 a debt secured by a promissory note payable on demand {x) ; an 
 assignment of a policy by deed poll by a husband to his wife 
 attested by one witness (?/) ; an order by A. to B., his deljtor, 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, Imt the 
 dividends on which he received and paid to his wife («) ; a gift, by 
 letters, of furniture in a house occupied by husband and wife up 
 to his death (V) ; a memorandum for payment of £150 in the 
 
 (?) Wheatley v. I\irr, 1 Keen, 5.51. 
 
 {m) Jfufjgeridffe\.iStanlon,7\y. II. (J38. Vandcnhcrg \. Pahncr, -1 K. & .T. 201; 
 
 (n) Thorpe v. Owen, 5 Beav. 22i. Mnckinto.tk v. ,Stuart, 30 P<cav. 21 ; 
 
 (0) In re Curteis^ Trusts, L. R. 14 Eq. Kdh) v. Wulsli, 1 L. R. Ir. 27.0 ; M^orijan 
 
 217. V. Jlalleson, L. R. 10 Eq. 475 ; but kcc 
 
 (p) InreCane's Trust s,PiGl J.J. (^.^.) IVarrincr v. Jior/er-i, L. R. 16 Eq. ?)\S; 
 
 Ch. 744 ; but see Be Glover, 2 J. & 11. 180. ante, p. 415. 
 
 (q) James v. Bydcler, 4 ]5eav. COO. (!') Richards \. Dclhridrjc, L. K. 18 Eq. 
 
 (r) Woodroffe \. Johnston, 4 Ir. Ch. 11 ; ante, p. 410. 
 
 Rep. 319. (!'•) West V. West, 9 L. R. Ir. 121. 
 
 (s) Arthur \. Clarlcson, 35 Beav. 458. (-r) J^ce v. Magrath, 10 I>. R. Ir. 15, 
 
 [t] Moore v. Barton, 4 De G. & Sm. 313. 
 
 517. (»/) Tlaycs v. Alliance Co., 8 L. U. 
 
 (u) Murray ^.Glasse, 23 L. J. (N.S.) Cli. Ir. "l49. 
 
 126. For other instances, see Woodroffe (z) In re Caplcn's Estate, 45 Ij. J. 
 
 V. Johnston, 4 Ir. Ch. Rep. 319 ; L'oyd v. (N.S.) Ch. 280. 
 
 Chune, 2 GifT. 441 ; ,Smith v. Warde, 15 (a) Moore v. Moore, L. R. IS Eq. 474. 
 
 Sim. 56 ; Field v. Lonsdale, 13 Beav. 78 ; (h) In re Breton's Estate, 17 Ch. D. 416.
 
 442 GIFTS OF EQUITABLE INTEREST 
 
 hauk after the donor's death, although he always kept the 
 memoraiiduni (c) ; an investment 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 Ijy the donor to his solicitor saying it was " for my 
 niece Mrs. ^1. and her children " (c). 
 
 Husband and A liusband could before 1883 (/) and of course can now con- 
 wife. . ^-^ ^ 
 
 stitute himself a trustee of his property for his wife (g). Before 
 
 1883 he could not in law transfer property to her by way of gift. 
 
 In every case, however, whether before or after 1883, tlie 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 o7v/ other person (h). 
 
 Tlie consent of a married woman given before commissioners 
 
 to the transfer and payment to her husl)and of money standing in 
 
 court to her separate account, so long as the transfer remains 
 
 uncompleted, is not an irrevocable declaration of trust (0- 
 
 Invalid declar- The following acts have been held insufficient to create a 
 
 ations 01 trust. 
 
 declaration of trust : — 
 
 If a testator by will appoints property to trustees upon trusts 
 to be aftervxirds declared, and subsequently declares those trusts 
 by letters, such letters cannot operate 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 (/.•). 
 
 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 [1) ; nor is a 
 document signed by the donor, addressed to his executors, stating 
 a gift of a debenture bond requesting tliem on his death to give the 
 
 {r) Armfitronr/ V. Tamperon, 19W. R.558. 
 
 (J) Beecher v. Major, 12 L. J. '(N.S.) (/«) In re Breton's Estate, 13 Ch. D. 
 
 562. 416; Grant v. Grant, 34 Beav. 623; 
 
 (e) In re Bellasls, L. R. 12 Eq. 218. ante, pp. 421, 423. 
 
 (/) Baddeleij v. Baddeley, 9 Ch. D. (/) I'enfold v. 3lould, L. K. 4 Eq. 562. 
 
 113; Foxv. Hauler, 13 Ch. D. 822; (/.) Jo;<H«on v. 7?a//, 5 De G.& Sm. 85 ; 
 
 ante, pp. 421, 422. and see la re Fleetwood, 15 Ch. D. 604. 
 
 (//) 45 & 46 Vict. c. 75, BS. 1, 2, 5, 25. (/) Jones v. Loci; L. P. 1 Ch. 25.
 
 WHEN COMPLETE. 443 
 
 bond to tlie donee, althou^li Ik; ke])t tin; lioiid and loreivcd tlic 
 interest during Ids lifo (//;); and mort'ly giving instructions to a 
 solicitor to carry into effect a contemplated gift will n^t Lind (//). 
 
 So an ordinary covenant in a deed hy a married woman and 
 her hushand to surrender copyholds (to whicli slie was then 
 entitled in fee, and had a right to he admitti'd tenant on the 
 rolls) to trustees upon trust for sale and investment of the 
 proceeds upon trusts for herself and others, was held an inc(jm- 
 plete transfer and inconsistent with any intention to dcflare lier- 
 self a trustee (o). 
 
 It lias been doubted in sonic of the older cases whether, if a Notice to 
 person voluntarily declares himself a trustee of property %«% not necessary 
 vested in himself, it is necessary that the trust should be disclosed '/ I'^'Pt-r^y 
 
 '' %/«''.'/ vested 
 
 to the cestuis que trust and afterwards acted on Q?); but it is in donor, 
 established by the cases cited above that this is not necessary (q). 
 
 The Statute of Frauds provides (;•) that all declarations or Trusts of 
 creations of trusts or confidences of any lands, tenements, o?- ^'g,',/^ '^^ ' 
 hereditaments shall be manifested and proved by some writing ^icreditameniit 
 
 i- '' •-> proved by 
 
 signed by the party who is by law enabled to declare such trust, writing, 
 or by his last will in writing ; or else they shall be utterly void 
 and of none effect. 
 
 By section 8, all declarations or creations of trusts of lands, 
 tenements, or hereditaments which arise or are transferred or extin- 
 guished by implication or operation of law are exempted from 
 this statute. 
 
 The henefleial 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 
 Meriting signed by the heneficial owner, but it must be similarly 
 manifested or proved what tlie trust is {t). 
 
 (?n) In re Shield, 53 L. T. (N.S.) 5. 
 
 («) Li re Mills' Estates, 7 W. K. 372 ; [r) 29 Car. 2, c. 3, s. 7. See Lcman 
 
 Geev. Liddell,35Be&v.621. v. Whitley, 4 Kuss. 423; Sinifh v. 
 
 (o) Greeti v. Faterson, 32 Ch. I). 95. Matthews, 3 D. F. & J. 139 ; and sco 
 
 (p) Meek v. Kettkincll, 1 Hare, 471, Agncw, Stat. Fr. p. 420. 
 
 S. C. 1 I'h. 342. (s) Tiernei/ v. Wood, 19 Bcav. 330; 
 
 (q) See post, pp. 4.j1 et seq., as to Kronheim v. Johnson, 7 CIi. D. GO ; post, 
 
 notice of equitable assignments ; and see p. 446. 
 
 needy. O'JJrien, 7 ]5cav. 32; Tate v. (0 Smith v. Matthews, 3 D. V. &. J 
 
 LeitJiead, Kay, 658. 151, 152.
 
 444 
 
 GIFTS OF EQUITABLE INTEREST 
 
 Parol declara- 
 tions of trust 
 of personal 
 property. 
 
 Eviflence to 
 establish a 
 trust. 
 
 The declaration itself need not be in writing ; it is enough if 
 it is proved by some subsequent writing («). 
 
 A trust of personal property may be validly declared or created 
 by 7;fn-o/, whether the donor declares himself or some other 
 person a trustee of the property {v). Vague conversations, how- 
 ever, cannot be allowed to have that effect (w). In Paterson v. 
 MiLiyhy {x). Lord Hatherley (then Sir W. P. Wood, V.C.) said : 
 "It may be doubtful whether the Court would hold that a 
 voluntary 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 settlor, he had 
 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 tlic donor, so as to 
 rebut the presumption of a resulting trust, the evidence in favour 
 of that declaration of trust must be clear and distinct. It is not 
 
 (u) Forster v. Hale, 3 Ves. GOG. As 
 to whether partnership property is within 
 the section, sec Dalcx. Hamilton, 5 Ilare, 
 300, S. C. 2 I'h. 2G0. 
 
 (v) Nab V. Nab, 10 ^Mod. 404 ; For- 
 (lyce V. Willis, 3 Bro. C. C. 577, and 
 note ; Bayley v. Boulcott, 4 I{uss. 34,0 ; 
 JJenbow v. Toicnseucl, 1 My. & K. 50G ; 
 M'FadilcH V. Jcnhyns, 1 Hare, 45S, 401, 
 S. C. 1 Ph. 153-157 ; Hwjhcs v. Htubbs, 
 1 Hare, 476 ; Lticas v. Lucas, 1 Atk. 270, 
 West (t. II.), 45G ; Lister v. Jlodson, 
 L. R. 4 Eq. 30 ; Parhcr v. Stones, 38 L. J. 
 (N.S.) Ch. 4G; Roheris v. Roberts, 15 
 
 TV. R. 117 ; Milroy v. Lord, 4 D. F. & 
 J. 274 ; Jones v. Lock, L. R. 1 Ch. 25 ; 
 Makeown v. Ardayli, 10 I. R. Eq. 445. 
 
 {w) Jones V. Lock, L. K. 1 Ch. 25. 
 
 (j:-) 11 Hare, 88, 91-02 ; and sec Dipplc 
 V. Corks, 11 Hare, 184-5. 
 
 (//) See Iliujhes v. Stubbs, 1 Hare, 47G ; 
 Scales V. Jllaudc, 6 De G. M. &, G. 51 ; 
 and Jr/ifjuire v. Dodd, Ir. Ch. Rep. 
 452, 455-0. 
 
 (.-) Per Lord Romilly in PeckJtam v. 
 Taylor, 31 Bcav. 254 ; Jones v. fyock, 
 L. 11. 1 Ch. 28. 
 
 (a) Dye v. Dye, 13 Q. B. D. 147.
 
 WHEN COMPLETE. 445 
 
 enough that the evidence should merely supp(jrt the trust ; it must 
 be capable of no other interpretation. The (luestion depends on all 
 the circumstances of eacli particular case. Tiie 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 inadmis- 
 sible, but must be weighed, liaving regard to that fact, like all 
 other evidence in the case (b). 
 
 II. Cases in M'hich tliu donor is merely the rquiiablc owner Donor merely 
 of the property, and intends to make thu gift without afTecting oSf ^ 
 the legal interest. 
 
 There are two ways in which a donor may carry out his puqjose : 
 
 1. He may assign his equitable interest direct to his donees. 
 
 2. He may execute a declaration of trust of his equitable 
 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 accident 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 (r/). 
 
 Whichever mode the donor intends to use, he must by that 
 mode fully complete his gift (c) ; for the Court will not make his 
 gift effectual by a way he did not intend (/). 
 
 It is clear that where the owner of a vested equitable estate Donor's 
 has voluntarily directed his trustee to pay over the dividends or trustee for 
 the property to his nominee, and this direction has been accepted ^°^'^* 
 
 (b) Roberts v. Boherts, 15 W. It. 117 ; GG2 ; Smith v. Lync, 2 Y. & C. Cli. 345 ; 
 In re Curteis' Trust, L. 11. 14 Eq. 217 ; Wltcatley v. Purr, 1 Keen, 551 ; Jirownc 
 Ileccrtley \. Xichulsun, h. 11. It) Eq. 24J, v. Cuvendisli, 1 J. & Lat. 037; ante, 
 243 ; ante, p. 440. p. 425. 
 
 (c) FowJccs V. Fascoe, L. It. lu CIi. (e) Kelewichy. Mannimj, 1 De U. M. 
 343; JlarsJial V. Crutwell, L. 11. 20 Etj. & G. 17(3; Doncddson v. DonaUhon, 
 328; post, pp. 440 et se(i. Kay, 711 ; 7/* re Walhampton Estate, 26 
 
 ((/) lliia-oft V. Christ;/, 3 Ueav. 238, Cli. D. 3*Jl ; post, p. 451. 
 242; and see Ellison v. Ellison, Vea. 050, (/) Ante, pp. 4oG, 430.
 
 -146 GIFTS OF EQUITABLE INTEREST 
 
 and acted ou by the trustee, there is a valid executed trust created 
 which he cannot revoke (y). 
 
 Declaratiou In EVimi V. IJUisoii ill), "Wren and Ellison, i)artners in a 
 
 of trust. '■ 
 
 colliery, took a conveyance of the property, in the name of "Wren. 
 Wren executed a deed declaring that he held Ellison's portion in 
 trust for Ellison. Ellison then executed a deed assiminji his 
 interest in a portion of his share to Wren, on certain trusts for 
 himself for life and for other persons after his decease. Lord 
 Eldon held this a valid declaration of trust, saying (i) : " Ellison 
 clothes the legal estate remaining in "Wren with the equitable 
 interests declared by the first deed; making him, therefore, a 
 trustee, for Ellison himself first, and after his death for several 
 other persons." And it has been held (/.■) that a document con- 
 taining such direction is valid as a declaration of trust of realty, 
 though signed only by the cestui que trust, and not by the Icr/al 
 owner, and not attested, and notwithstanding the 7th section of 
 the Statute of Frauds (/). 
 
 TOluSrs"^^" --^ntl it is evident that there is only a difference of form 
 direct. between such cases and those in which the owner of an equitable 
 
 interest has simply assigned it to his donee for the donee's own 
 
 benefit {m). 
 
 Assignment to But where the owner of an etiuitablc interest assims it to new 
 
 Jicio trustees 
 
 trustees for the benefit of third persons a different question is 
 brought forward, and one on which the cases are full of difficulty. 
 
 a2-ned*als°o. ^^' ^^^^'"^o ^^^® control of the legal estate also, the owner attempts 
 or intends to convey that to the new trustees, and does not effectu- 
 ally do so, then the gift is inefiectual (n) ; and it is, indeed, difficult 
 to distinguish on principle a case of this nature from those in 
 
 ((/) Villers V. Beaumont, 1 Vern. (Zr) Tierney \. Wood, 19 Beav. 330; 
 
 100, Ellison V. Ellison, 6 Ves. 656 ; Kronheim v. Johnson, 7 Cli. I). 60. 
 
 liycroft V. Christy, 3 Beav. 238 ; Framp- (I) \'ide ante, p. 443. 
 
 tony. Frawjjton, 4 Beav. 287; Jhntley (m) Coltcen v. Jlissiny, 1 Mad. 176; 
 
 V. Mackay, 15 Beav. 12 ; M'Faihlen v. where, liowevcr, tlie assignment was lield 
 
 Jenkyns, 1 Hare, 4.58, S. C. 1 I'h. 153 ; incomplete. Godsal v. Wchb, 2 Keen, 
 
 Lumhe v. Orton, 1 Dr. &Sm. 125; Parlcr 09 ; Collinson v. Pattricl; 2 Keen, 123; 
 
 v. AVoHcs, 38 L. J. (N.S.)Ch. 46; JJilrow Wilcoch v. Hannyngton, 5 Ir. Ch. Bep. 
 
 v. Bone, 3 CJifl'. 538 ; JIardiny v. Ilardiny, 38. 
 
 17 Q. B. D.442 ; sec post, pp. 451 et seq. (h) Bridyc v. Bridye, 16 Beav. 315 ; 
 
 (/() 6 Ves. 656. lkech\. Keep, 18 Beav. 285; ante, pp. 425 
 
 (?) 6 Ves. 063. et seq.
 
 WHEN COMPLETE. 447 
 
 which the donor liad the legal estate actually in him and at- 
 tempted to, l)ut (Ud nut eriectually, convey it {u). Tlie gift is not 
 complete according to the way in which the don^r intended it 
 to operate. 
 
 But if the donor ainiply intends to assign the e(|uilable interest Kquiinblo 
 
 i J 1 , , 1 . 111-1 ,1 1 , iiitcrcHt 118- 
 
 to tlie ncto trustee, leavnig the legal title imtoucued, and does so wigned to new 
 effectually, a valid trust is created (j)). """"''•''''• 
 
 Two different views have been taken Ijy tlie Court as to the Assignment 
 efficacy of an assignment to 7ieio trustees of an e(j[uitable interest, nTkw.VHttrc 
 or equitable chose in action, or a possibility, or of a legal chose cmiiir^ "* 
 in action formerly not legally assignable (7). 
 
 On the one hand, it has been hehl 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 Court will enforce it onJj/ when the contract or 
 agreement is supported by a valualjle consideration (/•). A mere 
 voluntary assignment of such an interest is therefore, on this 
 view, altogether inoperative. 
 
 The leading case which was decided on this principle is that of Mfd: v. 
 1^ T T^ 7 7. / \ Kcukvcdl. 
 
 Meek v. Aettlcwcll (s). 
 
 There Mrs. K. had an expectant interest as next of kin in a 
 sum of money vested in the trustees of her husband's will, to 
 which she would, as next of kin, become entitled if her daughter 
 should die in her lifetime without issue. During her daughter's 
 
 (o) Ante, pp. 415 et seq. (r) WrUjld v. ]Vri<jld, 1 Ves. 409; 
 
 {p) See cases infra, and Gilbert v. Meek v. KettlciccU, 1 Hare, 464, S. C. 
 
 Overton, 2 H. & M. 110, ante, p. 428; 1 Pli. 3!2, 345-7; Colnum v. Sarrcl, 
 
 Gannon v. White, 2 Ir. Eq. Kep. 207; :) l!ro. C. C. 12, 1 Yes. .Jun. 50; 
 
 contra, i>e«/sort V. Beatson, 12 Sim. 281, ]\'ard v. J«(//rt«f/, 8 Sim. 571, 8 Bcav. 
 
 in which, liovvever, the circumstances were 2(il; Beatson v. Deutson, 12 Sim. 281; 
 
 peculiar. '"Jewell v. Moxsii, 2 Sim. (N.S.) 18'J; Scnka 
 
 (q) Grey v. Kentish, 1 Atk. JSU; JkUes v. Maude, 6 De CJ. M. & G. 43; liahards 
 
 V. JJandi/, 2 Atk. 207-8 ; Theobald v. v. Delbridge, L. W. 18 E(i. 15. And sec 
 
 Ditffoij, 9. Mod. 102 ; Chandos v. Talbot, JMowu'i v. Hcadbujton, 8 Sim. 324; 
 
 2 i'. Wms. ()08 ; Meek v. Kcttlewell, 1 Edwards v. Jones, 7 Sim. 325, S. C. I 
 
 Hare, 464, S. C. 1 Pli. 342; lUehardson v. Jfy. & Cr. 22i',. 
 Richardson, L. It. 3 Eq. 693; ante, pp. 1 I [are, 464, S. ('. 1 Ph. 342. 
 
 411, 412 ; post, pp. 453, 457.
 
 448 GIFTS OF EQUITABLE INTEREST 
 
 life 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 assignment 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 interest invalid. 
 
 But the Yice-Chancellor expressly limited the scope of his 
 judgment. He said : " I decide only that a ^'oluntary assign- 
 ment of a mere expectancy, not communicated 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" (t). And Lord 
 Lyndhurst in his judgment distinguished this case from that of 
 Sloane v. Cadogan {n), upon the ground that this was the assign- 
 ment of a mere expectancy that conveyed no estate or interest 
 to the assignee, while in Sloane v. Cadogan (u) the assignment 
 was of a vested interest (v). 
 
 JSloane 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 reversionary 
 interest in a fund vested in trustees. He assigned this by deed 
 to other trustees upon trusts for volunteers. 
 
 Sir W. Grant, M.H., held that the assignment created a 
 valid trust. He said : " As against the party himself and 
 his representatives, a voluntary settlement is binding. The 
 Court will not interfere to give perfection to the instrument, 
 l)ut 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 
 
 (t) Meek v. Kettlewcll, 1 Hare, 476, («) Sug. V. & P. lltli cu. app. 24, 
 
 «. C. 1 Ph. 342, commented on in Fenfold stated 2 Sim. 291. 
 V. Mould, L. R. 4 Eq. 5G4, 5G5. (r) Meek v. KettUwcU, 1 Ph. at p. 348.
 
 WHEN COMPLETE. 4 1|) 
 
 no consideration is essential, and the Court will execute it, thoui^li 
 voluntary." 
 
 In the leading case of Kekcwich v. Manniiu/ (n-) the earlier JTciwiVA v. 
 authorities were all carefully reviewed, and i^luaac v. Cadogan (x) ^^"'"'""J- 
 followed. 
 
 In that case a lady was absolutely entitled in reniaiuder, 
 suhject 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 default of issue of the marriage, u|ii)n 
 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 niece (treating the question as if she were not 
 within the consideration of the marriage), following the prin- 
 ciples established in Ellison v. Ellison (?/), Shane v. Oailognn {x), 
 Fortcscuc V. Barnett {z), Whcatic)/ v. Pi/rr (a), and Bhihcly v. 
 Brady (h). 
 
 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 bindiug and 
 effectual manner, a voluntary gift of any part of his property, 
 whether capable or incapable of manual delivery, whether in 
 possession or reversionary, and howsoever circumstanced." 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 un- 
 changed and untouched. Surclv it would not be consistent with 
 
 (?«) 1 De G. M. & G. 17G. (--) 3 Mj. & K. .'{•'. ; post, p. 454. 
 
 (x) Sug. V. & P. 11th and i,rci\ious («) 1 Keen, 551. 
 
 eds. app. No. 24. {'>) 2 Dr. & Wal. ;n 1 ; pest, p. 454. 
 
 (//) G Ves. C5(), 1 Wh. & 'J'li. L. C. 
 Gtli cd. 291. 
 
 G G
 
 450 
 
 GIFTS OF EQUITABLE INTEREST 
 
 J'oyle V. 
 Huijhes. 
 
 Lamle v. 
 Or ton. 
 
 Nature of t lie 
 interest or of 
 ♦ be property 
 immuteriiil. 
 
 natural equity, or with reason or expediency, to hold the contrary, 
 C. being sui juris, and acting freely, fairly, and Mith sufficient 
 advice and knowledge. If so, can C. do this better or more 
 effectually than by executing an assignment to J). ? " 
 
 This case was followed in Voylc v. Hiujhcs {c) by Sir J. Stuart, 
 V.C, who, in an elaborate judgment, shewed the older cases {d) 
 not to be opposed to the doctrine that equitable reversionary 
 interests in personalty are assignable in equity. 
 
 In that case A. B., who had a vested interest in certain 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. I), 
 absolutely, and gave C. D. a power of attorney to receive the stock 
 from the trustees. Notice M'as given to the trustees. Sir J. 
 Stuart, Y.C, upheld the equitable assignment as a perfect instru- 
 ment, and, as such, valid in equity. 
 
 So in Lambc v. Orton (c) a letter was written by a cestui que 
 trust to his trustee, directing him to pay the share of residuary 
 personalty to which he was beneficially 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 ^^Titer's 
 deatli it was held that the letter operated as an assignment of 
 his whole share, wliether immediately payable or in reversion. 
 
 So in Pnifuld v. Mould (/), Lord Ilatherley (then Sir W. V. 
 Wood, V.C), commenting on Mceh v. Kcttlcwcll ([/), 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, tlie only material question being, ' Did the grantor, or 
 did he not, mean at once to pass the i)roperty ?'" 
 
 Tliese decisions, it is conceived, establish tliat the oiafurc of 
 the interest in tlie property the suT)ject of tlie assignment is 
 
 (c) 2 Sm. & GifT. 18. 
 
 {(1) See Carteret v. Paschal, 3 P. Wins. 
 197, 208 ; Thomas v. Freeman, 2 Vern. 
 5G3 ; Crouch v. Martin, 2 \'crn. 51)5 ; 
 aioane v. Cmlof/an, Sug. V. & 1'. 11th 
 and previous cds. app. No. 24 ; Fortes- 
 cue V. JJarnctl, .'} My. & K. 30 ; anj 
 see J/awli/ns v, Obyn, 2 Atk. 549 ; Wind 
 
 V. Jelnjl, 1 P. Wms. 574, and note ; Jeii^- 
 son V. Jfoiilson, 2 Atk. 421; Theohahls 
 V. T)nffoy, 9 IMod. Iu2; Jliijdcn v. Wat- 
 Icinson, post, Appendix No. X. 
 
 (e) 1 Dr. & Sni. 125; and see In re 
 King, 14 Ch. Y). 179; post, p. 455. 
 
 U) J.. 11. 4 Eq. 5G5. 
 
 (<j) 1 Hare, 404, 8. C. 1 Ph. 342.
 
 WHEN COMrLETE. 451 
 
 immaterial. That is to say, tlic sulijcct-mattur oi tlic a.ssiLjn- 
 ineiit may Ijo a vested or a contingent interest (A), U may 
 also be a mere cqmiancy, unless Meek v. Kettlewdl (i), which has 
 never been expressly overrnlcd, should be held still to apjily, upon 
 the ground that an assignment Ijy a person who has no adUfU 
 interest ouglit to be regarded rather as an agreement to assign 
 than as an actual assignment. The interest itself, whatever may 
 be its nature, may bo an interest in ciihcr real or jjcrsonal 
 property (/.). 
 
 The test whicli Mill now be a[)]»li('(l in every case is, whether or Test of v.ili.1 
 not the assignor has at the time of the assiginnont maile as c<im- "'^ '" 
 plete a transfer of his interest as he was capal)le of eflecting ; 
 and if he has, such an assignment is perfectly good and valid as 
 between him and his assignee (/). 
 
 It has been doubted whetlier, in cases of voluntary cqaituUc Whether 
 assignments or declarations of trust, the gift is complete until inistpoB and 
 notice of it has been given to the trustees, and the new trust ^y^'f''^*^" 
 accepted and acted upon by them ; and also to the assignees necessary in 
 
 ^ . 1 J ' o c</uit<il,lc 
 
 or cestuis que trust (m). n.ssignmcnts. 
 
 As between the donor and llic donee, all that is now essential 
 to make the transaction perfectly valid api)ears to be for the donor 
 to have done all that is necessary 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 etonec is so far complete that 
 the Court is not called upon to act against the donor, it will 
 assist the donee in obtaining the property from any person wlio 
 would be treated as a trustee for him {(>). 
 
 So as between the assignor and assignee, or as against a suli- 
 sequent voluntary assignee, who stands in the same position as 
 
 (70 Ante, pp. 447 ct seq. (m) Meek v.Keltlewell, 1 Ilarc, 471, S. C. 
 
 (/) 1 Hare, 4G4, S. ('. 1 Ph. 342. 1 Ph. 342; Jtucrofl v. ChnM,/, 3 IJcav. 238- 
 
 (/.) Ante, pp. 407 et seq. 241 ; Jlruhj,; v. Jin\/;/i', 10 IJcav. 322. 
 
 {I) In re WaUuimpton Estate, 2r, (n) J)o)ial(lson v. J)(nt<il,hc»i,KRy,lll, 
 
 Ch. D. 395; Uardiiuj v. HarcVnuj, 17 719; In re Wnlhamptnn J-Jstate, 20 
 
 Q. V,. D. 442. <-'!>• 1^- i^-'l ; '^"'^> P- ■"■'• 
 
 (o) Donaldson v. Donaldson, Kay, 718; Heed v. liccd, 7 Jk-iiv. 32. 
 
 (; (; 2
 
 452 GIFTS OF EQUITABLE INTEREST 
 
 the assignor, giving notice of the assignment to the trustee or 
 company or debtor is wholly immaterial (p). 
 
 Notice to It is only to perfect the title of the donee as against iJiird 
 
 necessMFv parties that the question of notice to the trustees in whose hands 
 thirdmniy ^^^ property is becomes material. It is therefore the duty of the 
 donee or of his trustees, and not of the donor, to give such notice. 
 
 So in Fortcscuc v. Barnctt (q), where a donor assigned 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 the 
 donor had completed 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, Y.C., follow- 
 ing Fortcscuc V. Barnctt (q) and Pearson v. AmicaUe Assurance 
 Office (s), that an assignment by letter of policies of assurance 
 to trustees on certain trusts of which no notice w^as 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 property is 
 have received notice, whether from tlie donee or from his trustees, 
 they may safely transfer the property to the original cestui que 
 trust without incurring any liability for so doing either to the 
 donee or to his trustees. The donee and his trustees omit to 
 give such notice at their peril (/). But such notice will not affect 
 the rights of volunteers inter se {u). 
 
 Notice to, and It is immaterial to the validity of the trust whether it lias been 
 ofTrusriy, communicated to, and accepted by, the trustee or not ; for the 
 trustee not trustee cannot, by refusing to accept the trusts, defeat the 
 
 necessary ^ ^ 
 
 to its validity, assignment. 
 
 So in III re Curtcis Trusts {v), where the settlor directed 
 a sum of £2000 to be invested in consols in the names of the 
 
 (/>) Justice V. Wjinne, 12 Ir. Ch. Rep. (s) 27 Beav. 227. 
 
 289; and see Ihjall v. lioicles, 2 Wli. & (0 Donaldson v. Donaldson, Kay, 
 
 Tu. L. C. Cth ed. 848. 711 ; ante, p. 451. 
 
 ((/) 3 My. & K. 30. {u) Justice v. Wynne, 12 Ir. Cli. 11. 
 
 (r) 14 Cli. I). 171); and see Pearson v. 289. 
 Amicable Assvrance Office, 27 Ueav. 227; (»■) L. E. 14 Eq. 217 ; and see Kehe- 
 
 In re Way's Trusts, 2 D. J. & S. 3C5. Jcich v. Munnincj, 1 De G. JI. & G. 198.
 
 WHEN COMPLETE. 4j3 
 
 trustees of his maiTia^i^'c seLtU'iiicnt, to wliuiu lie iicve-r (•(.luinu- 
 nicatcd what lie lia.l done, aii.l received Ihrnugh his liaiik the 
 dividends on the uhole, it was held that this addUiumd sum was 
 thereby made subject to the trusts of tlic settlement. 
 
 So in Jones v. Jones (ir), where the tru.stee lirst licard of 
 the trusts after the death of the settlor and then refused to 
 accept tlicni, the settlement was held to be valid. 
 
 The question, therefore, whether notice has been j^iven to 
 the trustee in whom the property is vested, or whether the trust 
 has been accepted by the trustee of the voluntary deed, is, so 
 far as relates to its validity as between donor and donee, (pute 
 immaterial. 
 
 And on the same j^round it has been decided ihat the trust Notice to 
 
 need not be connaunie.ated to Llie cestuis (pie trust (./). tru«t"iiol 
 
 ncccbsary. 
 So a voluntary settlement never communicated to the liene- 
 
 ficiaries, and kept by the settlor and found after his death 
 among his waste papers, was nplield against a subsequent volun- 
 tary settlement (//). 
 
 III. With regard to the transfer or assignment of Ir^jt'I interests, TranBfcr of 
 all of which formerly w^ere not transferable or assignable at law (z), „;,t /*,/«% 
 the following principle seems to have been established : — asbigua «. 
 
 The settlor could ')wt divest himself of his legal estate, and 
 consequently could not make a perfect and complete f/ift of the 
 property direct to his donees. 
 
 But he could declare a trust of it, either by making himself or Settlor cuU 
 
 only declare a 
 
 some other person a trustee for his donees. trusL 
 
 The question in each case seems to have been this : had the 
 
 {ir) 31 L. J. (N.S.) Ch. 535; and sec v. n<!lJir<i<I, Kay, C^S ; and see In re 
 
 In re Way's Trusts, 2 D. .T. & S. 3(35; Curteis' Trusts, L. K. 14 Eq. 217. 
 JSlo]>ery. CottrcU, 2 I)..T.&.S. 365; Fenfold {,/) Clavcrvn/ y. Clavering, 2 Vcr. 
 
 V. Mould, L. li. 4 Eq. 5G2; Gilbert v. 473; and sec i'ttrZoio y. Hcncagc,Y\nch, 
 
 Oocrton, 2 H. cS: M. 110 ; but see Lover- Prcc. Ch. 211. 
 idffe V. Coo2)er, 3 Russ. 30. (~) rolicies of life a.ssiirancc have been 
 
 (a) Hojye v. Harman, 11 Jur. 1007 ; made legally ast^ignable by 30 & 31 Vict. 
 
 Lire Way's Trusts, 2 D. J. & 8. 365; c. 144; policies of marine assurance by 31 
 
 Billon V. Coppiii, 4 My. & Cr. 660; &.32 Vict. c. 86 ; and debts and other fc//aZ 
 
 Lambe v. Orton, 1 Dr. & Sm. 125; Tate clioses in action by the Judicature Act, 
 
 1873, s. 25 (G) ; sec ante, pp. 411 ct scq.
 
 454 
 
 GIFTS OF EQUITABLE INTEREST 
 
 Gift of bond. 
 
 Assit;nmcnt 
 of pulicy. 
 
 As.si;,'nniont 
 of debt v;ith 
 power of 
 attorney. 
 
 donor done all that he could to make his gift complete as between 
 himself and his donee ? If so, the Court Mould support the 
 transfer or assignment as a declaration of trust, just as if it had 
 been a transfer or assignment of an e([uitalile interest (r/). 
 
 In Edwards v. Jones (h) the obligee of two bonds signed a 
 memorandum indorsed on one of the bonds, but not under seal, 
 purporting to assign the bond without consideration to a person 
 to whom the bond was at the same time delivered. 
 
 Lord Cottenham, L.C., held that, the transaction being 
 inoperative for the purpose of transferring the bond, which was 
 a mere chose in action, the (question was whether the mere 
 handing over of the bund could constitute a good gift inter 
 vivos ; and decided that such a gift was imperfect. 
 
 It must be observed that this case, f(jllowing Antrohus v. 
 Smith (c), was treated by Lord Cottenham, L.C., as simply in- 
 volving the ({uestion of gift, or no gift — and was not a question 
 of whether or not a trust had been declared. 
 
 In Fortcscuc v. BanicU (d) T, B. by a voluntary deed assigned 
 a policy on his own life to trustees upon certain trusts. The deed 
 was delivered to one of the trustees therein named. T. B. kept 
 the policy till his death, and notice was not given to the insurance 
 company. It was the practice of the insurance company to 
 recognize the assignee. 8ir J. Leach lield that tlie gift of the 
 policy was perfectly complete without delivery. Xothing remained 
 to be done by the grantor, nor could he have done what he after- 
 wards did to defeat his own "rant if the trustees had yiven notice 
 to the insurance office. No act remained to be done to complete 
 the title of the trustees. 
 
 In Ufdlcli/ V. L'radjj (c) A. assigned to B. by deed a memo- 
 randum of a sum due to him from C. upon certain trusts. The 
 
 (a) I'ortescue v. Burnett, 3 My. & K. 
 36, approved in Kekewich v. Munnhuj, 
 1 De O. M. & G. 170, 19-i; Blalctly v. 
 Braihj, 2 D. & Wal. 311; Pearson v. 
 Amicable Assurance Office, 27 Beav. 22'J ; 
 FarneU v. Uimjston, 3 !Sin. & Gilf. 337 ; 
 Iticharihon v. BirhariUon, L. J!. 3 Eq. 
 680 ; Parker v. ,Stones, 38 L. J. (N.S.) Cli. 
 401 ; Moure v. Ulster Jiankbuj Co., I. It. 
 
 11 C. L. 512 ; and sec Itoherts v. Lloyd, 
 2 lieav. 370. 
 
 {h) 1 J\]y. & Cr. 220 ; Moora v. Lister 
 Barikimj Co., I. K. 11 C. L. 512; and see 
 Lee V. Mat/rath, 10 L. 1{. Ir. 43, 315 ; lu 
 re lllchardson, 30 Cb. D. 396. 
 
 (c) 12 Yes. 39. 
 
 (d) 3 j\Iy. & K. 30. 
 {(■) 2D. & Will. 311.
 
 WHEN COMPLETE. 455 
 
 deed cdiitaiiiud u lu'dvisidii irrcvociiMy ;i]i|iniiitiiiL: !'>. liis atLnriiey 
 to SIU3 fur and iccoxcr (In; dclit. The mciuoraiiduiii was di'livciud Lu 
 ]). ill A.'s life. Lord I'luuketL held lliaL the assigiiiuuiiL as IjeLwceii 
 donor ami doiiue was complete; and that the power (jf attorney 
 alone in the assignment would govern the case, and that the 
 relation of trustee and cestui ([ue trust was createil (f). 
 
 Tlie rule seems to have been that with respect to this kind 
 of property what was re(|uired was, that the assignor sh(juld have 
 done all that he covdd have been re(j[uired to do if the assignment 
 had been for value. 
 
 So the assignment of a bond or debt or a promissory note or 
 other chose in action, not formerly assignable at law, would l»e 
 su])ported if the assignor had given the assignee a ^lomr of n/funici/ 
 enabling him to sue for and recover the debt without further 
 assistance from the assignor {[/). 
 
 In the recent case of T/i re Kiiuj (h) this principle was fol- Jn re Kunj. 
 lowed by Hall, Y.C. In that case the facts were as follows : — 
 
 K. before his second marriage wrote to one of the trustees 
 of his former settlement stating his desire to make a settlement 
 upon his four children of six policies of assurance on his life, the 
 particulars and the nature of the intended settlement of which 
 he then gave, and which was to contain covenants to keep up 
 the policies and pay the mortgage debt. Ami he added, " Until 
 the settlement is executed I am to be bound l^y this agreement in 
 the same manner as if the settlement were actually executed." 
 The letter stated he intended to have a second trustee, l>ut had 
 not yet decided whom to select. 
 
 K. two days afterwards scut to the intended trustee three of 
 
 (/) See Pearson v. Amicahle As>;ur- Cr. & Vh. 100; nhil-cly v. Brmly, 2 D. 
 
 ance Office, 27 Hcav. 229; Parnell v. & Wal. 311; Farncll y. nim,,(on, ?, M... 
 
 Ilhuiston 3 Sra. & Giff. 337; but sec & Ciff. 337; and see Jl,chards,m v. 
 
 Ward V. 'Aiulland, 8 15eav. 201; JJeatson lilchardson., L. R. 3 Eq. GS6 ; Lccj. 
 
 V. Beatson, 12 Sim. 201. ^1%-"/'- 10 L. K. Ir. 43 .51.. ; an.l tho 
 
 (,) Cases supra, and Tufnell v. Con- c.cd.tor may n.ake Ins debtor a truscc ..f 
 
 M, 8 Sim. G9 ; Boherts v. Llo.d, 2 the debt for .a thnxl pe.son : 1/ /■«././.« v 
 
 Beav. 37G ; HeicUt v. Bohinson, 15 W. II. Jad^.n^, 1 J lare 4.,8, S. (^ 1 .. 1.. 
 
 ance Office 27 Beav. 229, 232; Peddcr Jn re Caplai, L^tate,4o L.J.(^-i>-) ^i^- 
 V Vosel,,, ■^l Beav. 159; Xorctdf v. Dodd, 280 ; ante, pp. 411 , 412 
 
 {h) 14 Ch. D. 179.
 
 456 GIFTS OF EQUITABLE INTEREST 
 
 the policies, "willi u letter enclosing the former letter, and saying, 
 " The enclosed is the formal letter of assignment previous to a 
 deed, and as binding." The other three policies were mortgaged. 
 No formal settlement of the policies -was ever executed, and notice 
 was never given to the offices during the life of K. On the death 
 of the intended trustee the two letters and the three policies were 
 given up to K., who retained them till his death, and by his will 
 bequeathed his residuary estate to trustees on certain trusts. 
 
 Hall, Y.C., held that, construing the two letters together, there 
 was a clear intention to assign and settle the six policies. There 
 was no intention of the settlor reserving to himself the power of 
 retiring from tliat Avliicli was complete, so far as it could under 
 the circumstances be completed, by handing over the three 
 policies, and he could not hand over the other three policies, 
 because they were in the hands of the mortgagee. lUit he bound 
 himself to pay oil' the mortgage debt. In his opinion, it Mould 
 be absurd to say that, when a person had intended and desired 
 and striven to do everything necessary to make a settlement, the 
 Court would not hold it to be a sufficient settlement ; and he 
 therefore declai'cd that the two letters were a complete settlement 
 of the six policies. 
 
 It is submitted, however, that this decision is inconsistent 
 with the well-established principle that the Court will not give 
 effect to a mere voluntary agreement to make a settlement which 
 contemplates the taking of a further step in order to perfect the 
 transaction (i) ; and that it is plain from the two letters that K. 
 intended to execute a fornud deed to M'hich the two letters were 
 only a step. 
 
 Judicature By the Judicature Act, 1873 (/.), an absolute assignment of 
 
 Act 1873 > \ /> a 
 
 "any debt or other legal cliosc in (idion " is now effectual in law 
 (subject to a condition as to giving notice) to pass and transfer 
 the legal right to it from the date of nuch notice, and all legal and 
 other remedies for the same, and the power to give a good dis- 
 charge without the concurrence of the assignor. 
 
 This section does away with the need for a power of attorneij in 
 
 (i) Ante, pp. 889 et seq. 
 (/.) 3() & 37 Vict. c. GG, 8. 25 (G); ante, pp. 41U et seq.
 
 WHEN COMPLETE. 457 
 
 the assignment of a bond or mortgage dcht or indicy of assurance, 
 and makes these legal interests now capable of a Irgal transfer (/), 
 
 The Irish Judicature Act, 1877 (///), contains the same pro- iiihh .imiica- 
 
 • • turn Act, 
 
 Vision. ly77 
 
 This change in the law, both in England and Irelaml, whereby 
 all debts and other h>gal ehoses in action are uuw made capaljle 
 of being effectually assigned at law, will, in regard to cases within 
 their operation, reduce the question to the principles of Milroy 
 V. Lord (u) and liirliards v. Dclhridgt {(/). 
 
 The sole question now will l)e, did the donor in/end a gift or Solo (iuc«tion 
 
 HO W IH J 1 HH 
 
 a trust ? And whichever lie did intend to effect, lias he effectually ti,.nor efTuct- 
 
 • -I -, , r, uallv cftrrittl 
 
 earned it out ? „„i ,,;, ;„. 
 
 tcnlionV 
 
 The recent case in Ireland of Lcc v. Mar/rath (y) illustrates this, /^c v. 
 In that case the payee of a promissory note not payable to tlic ' "^™ 
 order of the payee, not negotiable, and not then payable, indorsed 
 and delivered it to L. There was no consideration for the 
 note, but it was found to have been indorsed and deli\ered witii 
 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. oSTotice in writing was given to the makers 
 of the indorsement after the death of the payee. 
 
 It was held that although before the Irish Judicature Act the 
 note was not capable of transfer by indorsement and delivery 
 at law, yet under that Act the debt thereby secured was capable 
 of being legally assigned ; and that, as the gift was ineffectual to 
 transfer the legal title, it could not be supported. 
 
 It is well established that a gift may be complete as to part of Gifta perfect 
 the property comprised in it, and incomplete and invalid as to „„ ,„ ,hc pro- 
 
 , , , , jHTtv com- 
 
 otlier parts ('/). prised; 
 
 In I]iz:a/ v. Fliahi (r) a voluntary settlement was made of jihtn/ ». 
 ■^ o- \ / ./ Fiiijht. 
 
 (I) Dav. Prec. Conv. 4th ed. vol. 2, pp. (ji) 10 L. li. Ir. 45, 313. 
 
 133, 137 ; 30 & 31 Vict. c. 144; 31 & 32 (7) UUloa v. Coppin, 4 My.& Cr. (317; 
 
 Vict. c. 86 ; but see Lee v. Mwjrath, 10 Jejj'cnjs v. Jcffcrys, Cr. & V. 13.s ; Bridijc 
 
 L. K. Ir. 49. ^- J^i'i'^U'^t ^'J I^cav. 315 ; ]\'uo<ljurd v. 
 
 (m) 40 & 41 Vict. c. 57, s. 28 (G). L'harnky, 28 Beav. 96. 
 
 (n) 4 D. F. & J. 264 ; ante, p. 414. (r) 3 Cli. D. 269 ; and sec In re himj 
 
 (0) L. IX. 18 Eq. 11 ; ante, p. 416. 14 Ch. D. 186.
 
 458 GIFTS OF EQUITABLE INTEREST 
 
 consols, mortgage debts, liank sliares, and certain furniture and 
 effects. The consols Avere transferred into the names of the 
 trustees, but the bank shares remained at the settlor's death 
 in her name, and tlie mortgages were not transferred to the 
 trustees, and the deeds were retained by the settlor. I'art 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 incomj)lete as to the mortgage 
 debts received l)y the settlor and as tu the bank shares. 
 
 or as to the The qucstion which limitations, if any, in a voluntary deed, 
 
 imi luut,. 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 instru- 
 ment which also contains an incomplete gift to other persons by 
 limitations which will not be enforced (/). 
 
 Voluntary deed The efficacy of a deed depends upon its being sealed and 
 da^rorits^"^ delivered by the maker of it ; not on his ceasing to retain 
 
 debvery. possession of it {u). 
 
 It operates from the time at which it is delivered (r), From that 
 moment it is immaterial in whose possession the deed remains, 
 provided that it is a complete instrument which effectually 
 transfers the property comprised in it. 
 
 It therefore need not be delivered up by the person who exe- 
 cutes it to the person for whose benefit it is intended, or to any 
 person on his behalf. 
 No subsef)uent Consequently, a settlor of a complete voluntary deed cannot, 
 can affect °'' ^->J retaining possession of it, suspend its operation, or thereby 
 coiiiplote render it inoperative (iv). 
 
 voluntary ^ ^ ' 
 
 <li-'ed. (s) ]);chlnsnn v. BvrreU, L. K. 1 Eq, 343 ; post, p. 461. 
 
 (0 Kchcirirh v.JIfDnilufj, 1 De G. M. 11th cd. app. No. 24 ; JMl v. Falmcr, 3 
 
 & G. 171) ; Pedder v. Moscli/, ol Beav. 150. Hare, 537; Fletcher v. Fletcher, 4 Hare, 
 
 (tt) A'enos v. Wickham, L. W. 2 II. L. 07; Dillon \\ Coppin, 4 :\ryl. & Cr. OGO, 
 
 323, per Lord Cranworth ; and sec and cases there cited ; JJoiuddsuii v. 
 
 JJoe d. Garnons v. Knlyht, 5 B. & C. DonuUhon, Kay, 711 ; Winj\ Trusts, 2 
 
 071. 1). J. & S. 365; JJonficld v. JIassell, 32 
 
 (w) Shep. Touch. 72; Browne y. Bur- Beav. 217; Armstruiuj v. Tamperon, 19 
 
 ion, 5 Dow. & Lowndes, 202 ; and sec W. IJ. 550 ; Jones v. Jones, 23 W. II. 
 
 Keith V. Pratt, 10 W. B. 206 ; JClph. 1 ; Evans v. Grey, 9 L. 11. Ir. 539 ; and 
 
 Deeds, 110, 120. •'>ce liytliewood & Jarman, 4th cd. vol. 2, 
 
 (u:) ,'Hoanc v. Cadoijan, Sug. V. & I'. pp. 264-6.
 
 WHEN COMPLETE. 459 
 
 Neitlicr c;in tlie settlor prevent its operiilioii uillier Ky 
 iiiutiliiiiiig tlie deed, us l)y destroying the seals (./•), <»r idleriii;^ the 
 limitations after its execution (y), or by l)urning (:) or destntyiiig 
 it (rf), or by throwing it away witli waste ]i;ij)(m- <Ii). nv by can- 
 celling it ('•). 
 
 So the executors of tlic settlor can be compelled to produce 
 any voluntary deed of his wliieh comes into their possession ('/). 
 
 Nor will llie Court presume tliat a voluntary declaration <»f 
 trust executed liy the settlor anil retained by him, which at his 
 death could not be found, had been destroyed by the settlor, 
 since it was his duty, as trustee and lawful custodian of the deed, 
 to keep it (c). 
 
 It may l)e here mentioned that probate duly is, under the l'r"l>"te''"iy 
 
 I -1 1 / /. \ pnyiiMc on 
 
 Customs and Inland IJevcnue Act, Ibbl (/), payable on any voluuiary 
 property taken as a donatio mortis causa, or under a \-oluntary ',i^Jl',atio,','i, 
 settlement purporting to operate as an immediate gift inter \i\os, "JJj^Jj'J.Jj'"'"' 
 whether by way of transfer, delivery, declaration of trust, or other- 
 wise, made by a donor who has died on or after June 1, 18^1, 
 unless it has been bona tide nuule three niontlis before the death 
 of the donor. 
 
 I'robate duty is similarly payable upon any propert}- which 
 such donor has voluntarily transferred to or vested in himself and 
 any other person jointly, whetlier 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 (rj). 
 
 (r\ b'miih V. Lyne, 2 Y. & C. C. C. {h) Vlavcvbuj v. Claccnnfj,2 Vcr. 473. 
 
 345 (c) >Scjmlino v. Tidtty, 2 Eq. Ca. Ab. 
 
 " (y) IVorran v. Jacob, 3 Mer. 25(5. ?«?; -"'A'/ Jlu'^son's Ca,c, Tree. Cli. 23o: 
 
 {-) Dahton V. Coatsivorth, 1 V. Wms. JJomdiUoii \ . GiUott, L. II. 3 E-i. I'TS. 
 
 731 ; JJcecher v. JIajor, 12 L. T. (N.S.) ('/) Fletcher v. Fletcher, •» Hare, .17 ; 
 
 r..., J'.rackenbanjx. Urdcucnburi/, 2 .1. iN: \\ . 
 
 Z) Nablrcd V. aHhaw, 1 P. Wnis. 3'Jl ; Cecil v. JJi,tc/wr, 2 J. & W. oGo. 
 
 577- 7/c W(n,'s Trusts, 2 D. J. & B. {(') In re Booher, U Vf. U. VAr,. 
 
 365; Voncddson v. (Jdlott, L. II. 3 Eq. (/) -l-lVict.c. 12,«.3S. Scci,os.,i,.502. 
 
 (i/) 44 A ict. c. 12, 8. 28.
 
 CHAPTEH IV. 
 
 WHEN AND TO WHAT EXTENT THE ABSENCE OF A VALUABLE CON- 
 SIDERATION WILL INVALIDATE A COMPLETE VOLUNTARY DIS- 
 POSITION OF PKOPERTY. 
 
 Voluntary YoLUNTAKY settlements, wheii once they are complete apart from 
 as biiuling as ^^^Y qnestions of actual or statutory fraud, are as binding as if 
 value *"'* ^^'^^' ^^^^^ ^"^"^^^ made for a valuable 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 created by a voluntary gift 
 of tlie trustees themselves (/). Their conduct must be regarded 
 in the same way, whether the trust was created for valuable con- 
 sideration or from motives of benevolence (i). 
 
 So the donee of a power created by himself without considera- 
 tion is as much bound by the rules of equity as if the power had 
 been created by any other person (I). 
 
 unless void The Want of consideration may make a disposition of property 
 
 tntcs'of Eliza- ^'°^^^ against creditors under 13 Eliz. c. 5 (/), or tlie Bankruptcy 
 betl) or Acts (m), or against p^'-'rchascrs under 27 Eliz, c. 4 (n) ; and voluu- 
 
 Jjankruptcy . . v / ' 
 
 Acts, or for tary gifts are also liable to be set aside on account of fraud in the 
 way in which they were obtained (o). 
 
 In most instances, however, if the gift is once fully and validly 
 and perfectly effected (p), the want of consideration is of no 
 importance. 
 
 (h) Umith V. French, 1 Atk. 243 ; Lan- (/) Ante, pt. ii. 
 
 liam V, Plrie, '2 Jur. (N,.S.) 753, S. C. (w) Sec now IG & 47 Viol. c. 52, s. 
 
 3 Jur. (N.S.) 704. 47 (1) ; ante, pp. 12, 42 et scq. 
 
 {{) JJrositr v. JJrereton, 15 Beav. 221. (h) Ante, pt. iii. 
 
 See iitonc v. tStone, L. E. 5 Ch. 74. {/,) Post, pt. v. cli. v. 
 
 (k) Tophavi V. JJukc of Portland, 11 (p) Ante, pp. 402 et seq. 
 W. K. 507 ; JJaubcny v. CocJclum, 1 
 ilcr. G2G. 
 
 fraud.
 
 VOLUNTARY SETTLEMENT: WHEN I51NDING. IGl 
 
 "There are, no doubt," said Lord iJoiuilly, .AI.!.'., in JJirLinson Com^kio 
 V. Bmrcll {q), " various circumstances ^vllich may be connected con"tS like 
 with a voluntary deed wliich will induce this Court either to set '^^^^^^ ^'"' 
 tlie deed aside or to refuse to execute the trusts contained in it. 
 There arc also statutory enactments wliich nuiy defeat a voluntary 
 deed M'hich would bo otherwise valid ; Imt, assiiniiuL; a voluntary 
 deed to be complete, bona fide, and valid, and to be unailected 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 such a deed have the same upeialinn 
 and effect as in a deed execuUid for value, and nmst 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 
 exactly in the same situation as if he had ]iaid v;ilue for the 
 property conveyed." 
 
 The Court has no discretion to prevent a person of full age and rn.lup in- 
 sound mind from making a voluntary gift even though he tliereby 
 strips himself of all his property, except in cases of undue in- 
 fiucncG (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 llaU v. //(/// (/), 
 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 creditors. 
 
 Thus in Villcrs v. Bmumo7it (w), W. B., a little before his deatli, Vilkm v. 
 
 11111 l^caumout. 
 
 by a little scrap of paper at an alehouse, but under hand and seal, 
 
 {(]) L. E. 1 Eq. 343 ; and see llochfort stroiuj, 18 Ch. D. GG8 ; James v. Couch- 
 
 V. Fitzmaurice, 2 Dr. & War., per Sug- man, 29 CIi. D. 212 ; post, pt. v. ch. v. 
 
 den, C, at p. 20; Saclcville West \. {s) Hunter \. Atkins, 3 'Sly. &.K. 113, 
 
 Viscount Holmesdale, L. E. 4 H. L. 554. per Lord Brougham, at p. 134. 
 
 (r) Ter Lord Eldon in Hvguenin v. (t) L. 1?. 8 Cli. 437. 
 
 Uase/f?/, 14 Vcs. 290, 2Wh.& Tu. L. f. («) 1 Vcrn. 100; Wrif/ht v. Moor, 
 
 6th ed. 597 et seq.; and see Tolcr v. 1 JIop. Cli. 84 [157]. As to subsc- 
 
 Toker, 31 Beav. G29, 044 ; Armsfronr/ v. qucnt disposal of property previously con- 
 
 Armstronff, Ir. E. 8 Eq. 1 ; Phillips v. viycd without consideration, see post, 
 
 Mullirujs, L. R. 7 Ch. 244 ; Henry x. Ann- pp. 475, 47G.
 
 4G2 VOLUNTARY SETTLEMENT 
 
 settled a lease for years upon A. and B. to the intent to pay his 
 debts, and gave the surplus to them. Afterwards, Leing 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 subseciuent will it was insisted 
 that the manner of obtaining this deed carried with it badges of 
 fraud and circumvention, or surprise at least. The Lord C'lmn- 
 cellor, however, said : " There is no colour in this case. If a man 
 will improvidently bind himself up by a voluntary deed, and not 
 reserve a liberty to himself by a power of revocation, this Court 
 will not loose the fetters lie 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 Ijc absurd." 
 
 Lumley v. The principle that a voluntary settlement cannot be set aside 
 
 JJeshorowjli. 
 
 in the absence of clear proof of fraud or surprise is well illus- 
 trated by the case of Lumley v. Dcshoroiujli (v). The plaintiff 
 filed his bill to impeach a post-nuptial settlement made by him, 
 on the ground of fraud, alleging he did Udt then know A. 11. was 
 not his lawful wife. In 1817 he had married A. B., who described 
 herself as a spinster. Some years after he separated from A. ?>., 
 and then made in her favour the settlement in question. Tlu; 
 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 (v). After the separation the plaintiff made inquiries as to 
 A. B.'s previous marriage, and subsequently prosecuted her for 
 bigamy in 1869, of which she was found guilty ; but. on a point 
 reserved, the conviction was qua.shed. 
 
 Sir J. Stuart, \.C., dismissed the bill, and said : " The rule 
 of the Court is ])lain, that a voluntary instrument cannot be set 
 aside by the settlor who made it, unless he can prove that it was 
 executed under circumstances 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. lint see Jiohinxon \. Dickenson, .3 Raws. 
 Barker, 1 Sim. 1, S. C. 4 Russ. 507. '^i*d ; post, p. -lix. 
 (tv) Sec ante, pp. 3Ul et seq.
 
 WHEN HINDINO. 403 
 
 Court to the conclusion tlint the settlement i.s n<. settlement at 
 fill. The mere recital in tlu; deed of words of description winch 
 turn out to be inaccurate is not enough. It mii^dit he said tliat 
 the defendant, Mrs. L., in executing a deed which dcsrril.cs h.-r 
 as the wife of Major L., knew at (lie time she signed it that she 
 was not his lawful wife ('). I'.ut in (mlcr to support a case of 
 that kind, tht; knowledge — or, at all events, the belief— that she 
 was not his lawful wife must l)e slunvn clearly." 
 
 There is no analogy l)etween these cases and those in wliich Assip:nmonU 
 property has been vested in trustees for cmlilors, and the assign- ^crJiu.ra'lwi 
 ment has neither been acted upon by nor communicated to the *^"''''"' 
 creditors. For, as Sir J. Leach said (y), lFa/lin/,i v, CoKf/s (:) 
 and 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 tliis, that the character ctf 
 trustee and cestui cpu^ trust never existed between 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 arc actually or constructively Settlements 
 fraudulent, either against creditors or purchasers, under the Jt°Jiu""g ^ro 
 statutes of Elizal)eth, are, as between the parties to them, and all P*^^' '■*" 
 
 ■■■ between 
 
 persons claiming through them, unimpeachable (1j). parties. 
 
 This is expressly provided by the wording of the statutes (c). 
 So a transaction which comes within either of the statutes can 
 
 (.r) See Willinson v. JoufjJiin, L. R. forfeitures, heriots, mortuaries, and reliefs, 
 
 2 Eq. 319. by such guileful, covinous, or fraudulent 
 
 (//) In JjiU V. Cureton, 2 My. & K. devices and practices as is aforesaid, arc, 
 
 511. See Patersonx. Mtirphji, 11 Hare, shall, or might be in anywise disturbed, 
 
 90; Johns v. James, 8 Ch. D. 744; and liindered, delayed, or defrauded ") utterly 
 
 see ante, pp. 433 et seq. void and of none effect. By 27 Eliz. c. 
 
 (~) 8 Mer. 707. 4, s. 2, all conveyances made lo deceive 
 
 {(() 3 Sim. 1-12, •where the same dis- purchasers shall be deemed and taken, 
 
 tinetion was expressly recognized. on!;/ as af/aiiist that person ajid persons, 
 
 (b) Ante, pp. 68, 09, 208, 209. bodies politic and corporate, his and tlicir 
 
 (c) By 13 Eliz. c. 6, s. 2, convey- heirs, successors, executors, administrators, 
 ances, &c., are ("only as ar/ainst that and assigns, and against all and every 
 person or persons, his or their heirs, sue- other person and persons lawfully having 
 cessors, executors, administrators, and or claiming by, from, or under thorn, or 
 assigns, and every of them, whose actions, any of them, which have purchased, &c., 
 suits, debts, accounts, damages, penalties, utterly void, &c.
 
 4G4 VOLUNTARY SETTLEMENT 
 
 onhj be upset by the persons thereby injured. No one but a 
 creditor or his representative can take advantage of a disposition 
 of property being void under the 13 Eliz. c. 5 {d). No one but 
 a subsequent 2^urchascr can cLaim tlie benefit of the 27 Eliz. c. 4, 
 as against a conveyance void under that Act (c). 
 
 Altliough void as against them, the transaction is perfectly 
 valid and binding between the parties themselves (/), and a deed 
 void against purchasers or creditors is valid for all other pur- 
 poses ((j), 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). 
 
 Voluntary -^ voluntary settlement made liy a person " indelited," and 
 
 settlement, by |.|^gj,gfQj,g constructivelv fraudulent within 13 Eliz. c. 5, is void 
 
 person in- '' 
 
 debted, only only as against creditors ; and only to the extent to which it may 
 creiUtms. be ncccssary to deal with the estate for their satisfaction as if 
 it had never been made. To every other purpose it is good. 
 Satisfy the creditors, and the settlement stands. The Court 
 frequently is obliged to sell the whole property settled ; but tlie 
 whole proceeds are not necessarily applicable (i). So wliere 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 (Z). 
 Bybankrnpt. And a voluntary deed Ity a bankrupt, though void against 
 creditors, subsists for all other purposes, so that any surplus 
 would be subject to the trusts of it (/). 
 
 (fi) Lalce V. Billcrs, 1 Ld. Eaym. 733 ; I\Ioo. P. C. 432 ; Beed v. Thoyts, C I\I. 
 
 Besmj V. Windham, G Q. B. ICC; White & W. 410. 
 
 V. Morris, 11 C. B. 1015, ante, p. 172 ; (r/) Curtis v. Price, 12 Vcs. SO, 103 ; 
 
 tited V, Brown, 1 Taunt. 381 ; Bobinson ante, p. G8. 
 
 V. M'Donndl, 2 B. & Aid. 134; Sims \: (h) Tarletony. Lidddl, 17 Q. B. 300, 
 
 Tuffs, G Cr. & P. 207 ; et infra, Bice v. 418-9 ; ante, p. 264. 
 
 tSerjeant, 7 Mod. 37. As to who are (/) Per Sir AV. Grant in Curtis v. 
 
 creditors, see ante, pp. 1G3 et seq. Bi-ice, 12 Ves. 89, 103 ; Tavqueray v. 
 
 (e) Croker v. Martin, 1 Bli. N. K. 573, Bowles, L. 1{. 14 Eq. at p. 157; ante, p. G8. 
 
 ct infra ; Doe v. Busham, 17 Q. B. 723, (/.) French v. French, G De G. M. & G. 
 
 733. As to who are purchasers, see ante, 95,103; Gardiner \. Shannon, 2 Sch. 
 
 pp. 217 et seq. & Lcf. 230. 
 
 (/) 3 Com. Dig. 296 ; Pauncefoot v. (l) Fx parte Bell, 1 GI. & J. 282 ; 4G 
 
 Blunt, 3 Rep. 82 a ; Shaio v. Jeffery, 13 & 47 Vict. c. 52, s. 40 (5).
 
 now FA 11 BINDING. 4G5 
 
 Under the I'.ills of Sale Act, 1878, such deed is, il' n.iL duly Kiicct of wnnt 
 registered, void only as a-ainst tlu-, persons specified in that Act(m), muKiStf' 
 and also is lial)lc to be postponed to another subsequent deed ^^"^ '^''''*- 
 registered 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. e. i, a voluntary conveyance is of couree Under 27 EHz. 
 valid between the parties, until there is some one ([ualified to ^' *' 
 take advantage of the statute as a subsecpient bona fide imrcka.^icr 
 for value ; and the voluntary deed is only void against such a 
 purchaser so far as is necessary to give full c'llect to the interest 
 conveyed to him {q). 
 
 Thus where a num made a voluntary settlement of certain Voluntary 
 lands on himself and ou his eldest son, and subsequently on the subj.-cuo't'l'io 
 marriage of the son resettled the property on hinjself and him, the "/laicl-tf '^^""'' 
 son having died without issue, and the trusts of the marriage 
 settlement being fully performed and satisfied, it was held, that 
 the first settlement was a purely voluntary settlement, binding 
 against the settlor, but not against a conveyance on valuable 
 consideration, Avhich the niai'riage settlement was (?•) ; yet that 
 the marriage settlement only prevailed over the first deed to the 
 extent of the limitations 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 sti[)ulation 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, whieli, though not binding as against 
 a purchaser, was binding against him and against his voluntary 
 dispositions (s). 
 
 Except so far as regards any benefit (as a lifn interest) taken 
 
 (m) 41 & 42 Vict. c. 31, s. 8; ante, («) 45 & 40 Vid. c. 43, h. 8; ante, 
 
 p. 136. p. 140. 
 
 («) 41 &42 Vict. c. 31, s. 10 (4); Con- (/O Ante, pp. 140, 162. 
 
 dhj V. tileer, 7 Q. B. D. 520 ; Lyons v. (7) Ante, pp. 208, 20'.). 
 
 Tuclca; 7 Q. B. D. 52:] ; ante, pp. 154, 155. (/•) Ante, p. 222. 
 
 («) CroUry. Martin, 1 Bli.N.R. 573; Sug. L. of Prop. 148. 
 
 II II
 
 4GG VOLUNTARY SETTLEMENT 
 
 Voluntary by the sottlov uikIlt the limitations of the settlement, which 
 oniyXpfaced would of course be in general subject to his full powers of 
 pro tauto. disposition, a voluntary settlement of land gives rights to the 
 volunteers, which can only be displaced by the settlor conveying 
 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. V>y virtue of the statute 27 Eliz. c. '!•, 
 the settlor is able to defeat the settlement which he has created so 
 far as the purchase or mortgage extends. Xot on account of any 
 favour shewn to 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 interest 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 extent of the interest of that purchaser. It leaves all those 
 who were interested under the voluntary settlement 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 (0- 
 
 Part of settled Where only part of the land settled has been subsequently 
 lauds sold. ^.^-^^-j^ ^j^^ settlement remains good as to the unsold jiortion (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 volunteer has no right to the land sold on paying the pur- 
 chaser what he gave for it ; and cannot claim the purchase-money 
 from the settlor as Ijeing subject to the trusts of the settle- 
 ment (r). 
 
 Thome V. The old case of Thome v. Newman (?/•), however, Avould seem 
 
 Mwman. ^.^ warrant such a supposition, if the report can be relied on, 
 
 al/owedto according to which the bill was filed to set aside a pretended 
 
 soMTiIpTy"^- voluntary conveyance made with power of revocation on the 
 
 mcntofpur- ^^.^Jer of a shilling. The shilling was tendered, Intt (it was con- 
 
 cliasc and ^ ^ 
 
 other money 
 
 P*'^- (<) Dolphm V, Ajihrnrd, L. E. 4 H. L. (i) Pnlvertoft v. Pulvcrtnft, 18 Vcs, 
 
 499-500: per Lord Ilatlicrlcy, L.C. ; sec 91; Daldnrj \. Whimper, 2 G J5eav. oG8 ; 
 
 In re Wulhianptvu Kstule, 20 Ch. D. Tuicnend v. Toker, L. 1!. 1 Ch, 446 ; 
 
 391, 39.3 ; post, pt. vi. ch. i. ; ante, p. 208. ante, j). 208. 
 (u) Williamson v. Codrinr/toyi, 1 Ves. (w) Finch, 38. 
 
 515 ; post, pt. vi. ch. i.
 
 now FAR BINDING. 4G7 
 
 tended by the defendants) informally, and llie plaintill' became n 
 pnrcliaser of the premises, first, by a mortgage for loOO, and 
 afterwards by an a1)solute assignment, 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 defend- 
 ants praying a redemption of tlie premises, upon payment of the 
 said sums of money ^vith interest, together with the money laid 
 out in building and repairing, " It was ordered that tlie Master 
 should compute the same, and what profits the i)hiintin' or any 
 other person for his use had received, and he to account for all 
 wilful spoils and wastes done ; anil upon payment of what shall 
 appear to be due the plaintiff should assign the premises lo the 
 defendant; but in default of payment then the jilaintifl" was to 
 hold the premises against the defendants and all claiming under 
 them by the said deed." This was at the EoUs, and upon appeal 
 the Lord Chancellor confirmed this decree. 
 
 In the ordinary case of property Ijcing settled voluntarily, and Volunteer may 
 afterwards mortgaged by the settlor, the volunteer has a perfectly gago. 
 valid title suliject to the mortgage. 
 
 Thus in Band v. Cartivrifjht {x) a man made a voluntary deed 
 and then a mortgage of the same lands. It was held that, though 
 the first deed was fraudulent, because voluntary, quoad the mort- 
 gage-money, and pro tanto, yet that it was good as to the eijuity 
 of redemption, 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 a Rnrrlns rr"- , 
 
 •^ ^ ° 1 c • 1 cec.lsof Milfof 
 
 voluntary settlement, any surplus proceeds, after a sale <>r it I'y laml n.ori- 
 thc tnortgagce under his power of sale, is subject to the trusts of f "^^^^ j"g'|,^,j"^.j 
 the settlement {z). 
 
 [x) Nels. 101, 1 Ca. Cb. 59; and see (?/) Pcrldns v. Waller, 1 Vern. 97; 
 
 lioscarrick V. Barton, 1 Ca. Ch. 217; Thome y. TAoj-j/c, ibid. 141. 
 
 Iloirurd V. Harris, 1 Vern. 190, 193 ; (2) Jn re Walhavii>ton Estate, 2G 
 
 GirliiH/ T. Lou'ihcr, Vin. Abr. vol. 22, p. Ch. D. 391. 
 
 to trusts. 
 
 22, r. 1 ; Joves v. Bavgh, ibid. E. 1. 
 
 n II 2
 
 4G8 
 
 VOLUNTARY SETTLEMENT 
 
 Sale by a 
 vendor intend- 
 ing a mort- 
 
 Marshalling. And wlierc, after a settlement of freeholds, the settlor mort- 
 gaged the property together with unsettled estates of liis own, it 
 was held that the volunteers were entitled to throw the mortsTfa^e 
 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 mort^a^e 
 primarily on the unsettled estates (a). 
 
 Where there is any fraud in representing to the vendor 
 that the transaction was a mortgage instead of an absolute 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 declared to be oidy a mortgage for the amount of the 
 purchase-money, and that the settlement would be valid subject 
 to the mortgage (/>). 
 
 A conveyance void against purchasers may be a breach of a 
 covenant not to assign (c). 
 
 Voluntary Evcu a deed voluntary in form, the consideration for which arises 
 
 their creation. '^^ turpi causa, 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 transferred to the trustees, the Court M'oidd 
 not set it aside at the instance of the settlor or liis legal personal 
 rei:»resentative, even when it was made for an illegal consideration 
 which did not ai:)pear on the face of the deed (c). 
 
 Contracts founded on immoral considerations are absolutely 
 void. So a fund settled in trust for after-born illegitimate chil- 
 dren 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 fiUurc illicit 
 
 (a) Hales v. Cox, 32 Beav. 118; 
 Anstey v. Neimiian, 39 L. J. (N.8.) Ch. 
 769; post, pt. vi. ch. i. 
 
 (6) See Douglas v. Culcervxll, 3 GiQ". 
 251. 
 
 (c) Gewen v. JRoU, Cro. Jac. 132. 
 
 ((l) Per Hale, 15., in Curcij v. /Stafford, 
 3 Sw. 427, n., 429, n. 
 
 (e) Aijerst v. Jcnliim, L. 11. 1(3 Kq. 
 275 ; commented on in Patceon v. JJroicii, 
 13 Ch. D. 202. 
 
 (/) Wilkinson v. Wilkinson, 1 V. & C. 
 C. C. G57.
 
 HOW FAR BINDINCf. 
 
 •If.'.) 
 
 colinljitalion arc Vdid (//) ; wlicroas those; fouiulcd on ^j^.^/! colialji- 
 tatioii or^)«si5 sftliulinn and cohabitation aro niorely vohuitaiy (//). 
 So an agrcomcnl fni' oi' iiKhicivo ol ftiltur separation Ity ]iu.sl)itiid 
 and wife is void (/). So also contracts in ciicdura^eniciit or 
 for the ])urposcs of prosliuuinn are void, as l)eiii^' contra bonos 
 mores (/.). 
 
 Yohintary contracts wliich clearly are injurious to the jjublic 
 interests are void on grounds of pnljlic polic}'. As, for instance, 
 sncli as are in restraint of trade, whether general or particular (/), 
 or for the creation of a monopoly {m), or in restraint of mar- 
 riage {n). 
 
 A contract which is void on the ground of public policy may 
 be set aside by one imrticeps criminis (o), but the voluntary f/ift 
 of part of his own property by one particcps criminis to another 
 is in itself neither fraudulent nor prohibited by law (2^). Tlio 
 real distinction is between a contract that is executed and one 
 that is executory (^y). 
 
 {(J) Walker v. PerUns, 3 Burr. 1568 ; 
 Bex V. Inhabitants of Nortliiuing field, 1 
 B. & Ad, 912 ; Gray v. 31athias, 5 Ves. 
 286 ; Wilhjams v. BuUmorc, 32 Beav. 
 574 ; Ayerst v. Jenlhis, L. R. 16 Eq. 
 275; see Chitty, Cont. 11th ed. 613 
 et seq. 
 
 (/<) Knye v. Moore, 2 S. & S. 260; 
 Beaumont v. Beeve, 8 Q. B. 483 ; and 
 see Hall v. Palmer, 3 Hare, 532 ; Limley 
 V. Beshorouf/Ji, 22 L. T. (N.S.) 597; 
 Ayerst v. Jenlcins, L. R. 16 Eq. 282, per 
 Lord Selborne, L.C. ; notwithstanding 
 the earlier cases of Blnninyton v. Wallis, 
 4 B. & Aid. 650, 652, and Friend v. 
 Harrison, 2 C. & P. 584. 
 
 (/) Westmeuth v. Westmeath, Jac. 
 126, 1 Dow. & CI. 519 ; and see Hiclft v. 
 Sidft, 34 Beav. 266 ; ante, p. 312. 
 
 (h) See Glrardy v. Blchardson, 1 
 Esp. 13; Howard v. Hodges, 1 Selw. 
 N. P. 13th ed. 80; Lloyd v. Johnson, 
 1 B. & P. 340 ; A2ypleton v. Camphell, 2 
 Car. & P. 347 ; Jennhujs v. Throymorton, 
 By. & Mood. 251 ; Pearce v. BrooJcs, 
 L. R. 1 Ex. 213; >S'm(V/t v. White, L. R. 
 1 Eq. 626 ; Taylm- v. Chester, 10 B. & S. 
 237 ; Herman v. Jenchner, 15 Q. B. D. 
 561 ; Chitty, Cont. 11th ed. 614. 
 
 (/) Hilton V. Eclccrsley, 6 E. & B. 47, 
 74-5; Wood v. Bowron, L. R. 2 (J. 1!. 
 21 ; and see Harms v. Parsons, 32 Beav. 
 328 ; C'oUim v. Locke, 4 App. Cas. 074 ; 
 Jlltchell V. Beynolds, 1 .Sm. L. C. 8th ed. 
 417 et seq. 
 
 {m) Duverylcr v. Fellowcs, 10 B. & C. 
 826 ; MltcMl v. Beynolds, 1 P. Wms. 
 181-185, 1 Sm. L. *C. 8th cd. 417 et 
 seq. ; Youny v. Tlmmlns, 1 Tyrw. 22G, 
 241 ; Homer v. Ashfurd, 3 Bing. 322 ; 
 Hitchcock V. Coher, 6 Ad. & E. 438, 456; 
 Farrer v. Close, 10 B. & S. 553 ; Chitty, 
 Cont. llih ed. 615 ct seq. 
 
 (h) Loice v. Peers, 4 Burr. 2225, Wilni. 
 364; Balccr v. White, 2 Vem. 215; 
 Woodhouse v. Shrjilcy, 2 Atk. 540. See 
 Si-ott V. Pyler, 2 A\'ii. & Tu. L. C. 6th cd. 
 120 et seq. 
 
 (o) VauxhaU Brldyc Co. v. Earl 
 tSpenccr, 2 Mad. 35(5, and cases there 
 cited; Sharp v. Taylor, 2 Phil. 801; 
 Jlacyreyor v. Dover and Deal Jtailway 
 Co., 18 Q. B. 618; Ayerst v. Jenkin.i, 
 L. R. 16 Eq. 275. 
 
 (p) Ayerst v. Jenkins, L. R. 16 Eq. 
 283. 
 
 (7) maley v. Norton, 1 Vcm. 483 ; 
 Ayerst v. Jmkins, L. R. 16 Eq. 275.
 
 470 A MAN CANNOT SET UP 
 
 Fraus contra A party to a contract which is fraudulent as against third 
 contra fraiula- pcisons canuot Gxcuse hunsclf from performing his part uf the 
 tores valet. agreement by aHeging that it was fraudulent and void (/•). 
 
 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 supposed 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. AVlicre a tenant of ]j. had });ti(l all liis rent, and got his land- 
 lord'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 proceeds, 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 contem- 
 plating 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 conveyance of 
 
 Frauds cannot ■, ri, . , f -r^ ^ 
 
 he set up to property has been made set up the Statute oi h rauds as an answer 
 
 coverairau . ^q ^.j^g case that he is merely a trustee of that property for the 
 
 pjlaintiff. The Court will not allow a man to take advantage of 
 
 the Statute of I'rauds to keep anotlier man's property which he 
 
 has obtained through fraud (v), 
 
 A man may This principle, that a man canuot set up his own fraud to 
 
 own'frlud.'"' ^vcji^^ ^^is owu deed, is not confined to the statutes of EHzabeth. 
 
 (r) Hawes v. Leader, Cro. Jac. 270, FletcJier, 2 Atk.W5-6 ; Irnhamv. C/tild, 
 
 1 Brownlow, 111, Yelv. 196, 3 Com. 1 Bio. C. C. 92 ; Curtis v. Pcrnj, G Ves. 
 
 Dig. 29G, Lofft, 427 ; De Metton v. 739, 747 ; Bessey v. Windham, G Q. B. 
 
 Be MeUon, 2 Camp. 420, 12 East, IGG; PhiUpotts v. PhiUputts, 10 C. B. 
 
 234 ; Worthinrjton v. Curtis, 1 Ch. D. 85, which was a iictitious conveyance to 
 
 419 ; et vide supra as to conveyances give a vote in a parliamentary election ; 
 
 fraudulent within the statutes of Eliza- and see In re South IWdcs Atlantic 
 
 beth. Steamship) Co., 2 Ch. D. 7G3 ; Cliitty, 
 
 («) Shaio v. Jiffcnj, 13 Moo. V. ('. Cont. 11th ed. G30. 
 
 432, 454-5 ; PldUputls v. PhiUpotts, 10 («) Sirns v. Tuffs, 6 C. & B. 207. 
 
 C. B. 85. 00 Childers v. Childers, 1 De. G. & J. 
 
 {t) Watts V. Brooks, 3 Ves. C12-3 ; 482; Davies v. Ottij, 35 Beav. 208; 
 
 Roberts \. Roberts, Dan. 143; Ex parte Lincoln v. Wrif/ht, 4 De. G. & J. IG ; 
 
 ileymot, 1 Atk. 19G ; Cottinrjton v. llairjh v. Kaye, L. K. 7 Cb. 469.
 
 HIS OWN FRAUD. 171 
 
 So wlici'o a man, id ciiaMc lii.s Lrothcr to roprcsent himself as a 
 man of property, and to carry on a marriage treaty, gave him a 
 note for a large sum as tlie 1)alance between them, it was lieM 
 (the marriage being had) that tiie note was binding betwe(!U 
 ihem (tv). So in Itohcrta v. llohcrts (x) it was held that a deed 
 made for the ])urpose of giviuL; ;i (pialificatidn to slutot game, and 
 which had never been acted upon, l)ut was jaejiared and executed 
 with the knowledge of the grantee, and was delivered to him, the 
 title deeds, however, and profits of the land being retained hy the 
 grantor, could not be set aside nor a reconveyance compelled. 
 
 Ill Blrelb V. Jjliajravc (v/), however, a man madi; a secret convey- Birch v. 
 auce of land to his daughter and remained 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 Ly 
 putting tlie legal interest out (;f himself, so that he might swear 
 he was not worth £15,000, hut he afterwards changed his mind 
 and paid the fine. It was held that this voluntary deed was 
 avoided by his subsequent devise of the lands. Lord Ilardwicke 
 said cases of this sort stand on their own circumstances. That 
 as he had not, by taking the oath, adtcaUi/ committed a f rami, and 
 had done it under the mistaken impression that l)y putting the 
 legal estate out of himself he could take the oath, and had no 
 intention of parting with the beneficial interest, the conveyance 
 ought not to take effect against liim 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 Pitt had finmd his 
 mistake and repented of it before he had carried 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. 
 
 The true principle seems to be this. Where the purpose for 
 which an assignment is made is not carried into execution and 
 
 (to) Montefiori v. MonUjion, 1 W. LI. 303. (x) Dan. 113. (./) 1 Amb. 201.
 
 472 VOLUNTAEY DEED 
 
 nothing is done under it, the mere intention to effect an illegal 
 object wlien 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 that it has 
 
 tllnToniy set hccn duly Completed, so, in general, it is immaterial whether the 
 
 aside on what ggttlor does or docs not retain possession of the deed, and whether 
 grounds. '■ 
 
 he does or does not communicate the gift to the grantee ((t). 
 
 It is only upon special grounds that a complete voluntary deed 
 can be set aside. 
 
 Such a deed may be set aside, if it has only been executed by 
 the grantor for a particular purpose of his own, not carried out, 
 has never been out of his possession, and has been kept secret (h). 
 Such a deed is executed iwt for the benefit of the donees, but for 
 a special purpose of the donor ; and resembles trusts for creditors 
 in this respect (c). 
 
 Cecil V. In Cecil V. Butcher (d) there was a conveyance of land by a 
 
 Gift for ' rali- ^^^^^cr to liis SOU for the single purpose of qualifying the son to 
 fication to ]^i\ rvame. The deed was retained by the father in his own 
 
 kill game. 
 
 possession, and the transaction was never communicated to the 
 son, nor was it acted on. The father died, making another pro- 
 vision for his son, and the deed was not to be found ; but the son, 
 finding a copy of it, filed his bill in equity to have the benefit of 
 the deed as having been lost. 
 
 Sir T. Plumer said the deed was for a special purpose, and was 
 only intended to be used for that purpose ; that if the deed is 
 complete, when it is a qualification to sit in Parliament, as in the 
 case of Colonel Pitt (e), or to kill game, as in lioberts v, lioberts (/), 
 
 (2) Symes v. Hiiyhes, L. R. 9 Eq. Birch v. Blaf/rave, 1 Amb. 204 ; Cecil v. 
 
 475 ; and see Taylor v. Bowers, 1 Q. U. Batcher, 2 .Tac. & W. 565 ; Chihlers v. 
 
 D. 291 Chihlers, 1 De G. & J. 482 ; Mit/ord v. 
 
 (a) Ante, p. 458; Claverinrjv. Clover- Jieijnohls, 10 Sim. 130; Flowery. Mar- 
 
 hifj, 2 Vern. 473 ; Bouijhton v. Boiir/hton, tin, 2 My. & Cr. 459. 
 
 1 Atk. 02G ; Doe v. Knir/ht, 5 13. & C. (c) Ante, pp. 433 et seq. 
 
 071; Extonw >Scott, G Sim. 31; Jlall v. {d) 2 .lac. & W. 505; and see Cal- 
 
 Fulmer, 3 Hare, 532 ; lie Ways Trusts, layhan v. Callayhan, 7 CI. & Sim. 374. 
 
 2 D. J. & S. 365 ; Bonfeld v. IlassuH, 32 (e) Cited by Lord llardwicke in Birch 
 Beav. 217; Xenos v. Wichhom, L. ]!. 2 v. Blayrave, 1 Amb. 204, 200; supra, 
 H. L. .'523 ; Elpb. Deeds, 120. p. 471. 
 
 (6) Ward V. Lant, iVec. Cli. 210; (/) Dan. 143, ft siipm, p. 471.
 
 FOR SPECIAL PURPOSES ONFA'. 473 
 
 the party cannot be licard tu allege his own fiaiululciii i.iirjH.se ; 
 it being a fraud on the law to atteiii].! to give another a (|iialili- 
 cation without making him owner of tliu estate, he is estopped 
 from confniing the o])eration of his deed by avowing tliat he .had 
 such a purpose. lUit where the deed is vobnitary, retained Ijy 
 the donor, made for a particular purpose, and hir a purpose wliich 
 lias never been completed, the ipiestion is, whetiier there is not 
 a locus pienitentia'. After minutely reviewing the previous 
 authorities, his Honour said that difficult as it may be to extract 
 a principle from the cases, yet he thought " there is a great pre- 
 ponderance of authority in support of the proposition, that where 
 a voluntary deed is made without the knowledge of the grantee, 
 for a special purpose for which it was never required to be made 
 use of, when it has been kept in the hands of the grant(jr without 
 ever being acted on, a Court of ec^uity will not relieve upon it " — 
 that is, will not enforce it; and this has been followed by Lord 
 Eldon and other judges in cases of the kind Oj). 
 
 A voluntary deed may also be set aside, if it has been executed Deed executed 
 by the grantor under a bona lide mistake as to the law, to evade ""bi!""^''" 
 which it was made. 
 
 So in Manning v. Gill (h) a man about to be tried for felony 
 executed a voluntary deed disposing of all his property, with the 
 sole motive of defeating a forfeiture in the event (which did not 
 happen) of his conviction. It was held that as the purpose for 
 which alone the deed was executed had not taken effect, and 
 as it was executed under a total misapprehension, the deed was 
 wholly inoperative. 
 
 Such a deed may also be ordered to be delivered up, if its Possession of 
 possession has been obtained from the grantor by the fraud of the 1,.. f,.(„ul of 
 grantee or some one on his behalf. grantee. 
 
 The principle upon which this rests seems to be that such 
 a deed, so long as it was retained by the grantor, was revocable 
 by him ; and as it was only by the fraud of the grantee tliat it 
 
 {g) Brachenhunj v. Brackenhurij, 2 Childe.rK, 1 Do G. & .1. 482 ; Fluircr v. 
 
 Jac. & W. 391. See Ward v. Lant, Marten, 2 My. & Cr. 459. 
 Prec. Ch. 182, a case of a bond j^ivcn to (/<) L. R. 13 Eq. 485; Birch v. Bla 
 
 screen the obligor from taxes ; Mitford v. f/rarc, Anib. 2(j4 ; but see (Jrocca v. 
 
 BeijHuIds, IG Sim. 13U; C'hildtrH v. OVoi-es, 3 Y. & .1. 175.
 
 474 
 
 VOLUNTARY DEED 
 
 Voluntary 
 
 instruniont 
 got from 
 grantor by 
 iVaud. 
 
 Remarks on 
 NdUlred v. 
 (Jilhain. 
 
 became irrevocable, it must be treated as if the fraud had not becu 
 committed. 
 
 In Cotton V. Xing (i) Lnrd King, in supporting a vobnitary 
 settlement as having been intended to put the property out of the 
 settlor's power, said, " if she had executed these deeds, and kept 
 them in her own hands or custody, and they had been got from 
 thence, I do not think she should have been bound by them ; so if 
 they had been placed in the hands of her agent, for her agent's 
 hands are her hands, and no other person privy to them." In 
 Kaldrcd v. Gilham (k), A. made a voluntary settlement, with 
 no power of revocation, on her nephew, keeping the deed in her 
 own ])ower ; afterwards one, secretly and by fraud, on behalf of 
 the nephew, gets an attested copy of this settlement ; A. then 
 burns the settlement, and settles the premises on another nephew ; 
 bill to establish the attested copy was dismissed, and on another 
 bill by second nephew the attested copy was decreed to bo 
 delivered up, as having been indirectly gained. 
 
 In one case (/) a voluntary assignment of a chose in action 
 retained by the donor, but to which the donee was privy, was held 
 to be revocable by the donor on account of her retention of it ; 
 but there was no proof of the exact contents of the deed, and 
 there ^vas proof that the donor intended tlie deed to be ambulatory 
 until her death, and revocable like a will (m). 
 
 Of course if there has been any fraud on the part of the 
 grantee in procuring the deed, the Court will not alluw him to 
 retain any beneficial interest in it (/;). 
 
 The case of Kaldrcd v. GUham (k), as Sir John I'ayley re- 
 marked in delivering the judgment of the Court of King's Bench 
 in JJoc v. Knight (o), was not determined on the ground that the 
 deed was not well executed, or that it was not binding because 
 Mrs. Naldred had kept it in her possession. It was determined 
 because it was plain that Mrs. Naldred intended to keep the estate 
 
 ((■) 2 r. Wms. 3.58-0, 2 Eq. (.'a. Ab. (/) Uniaclcc v. Oiks, '2 Moll. 208. 
 
 53, pi. 10; and Kliuj v. Cotlon, 2 P. {m) i'<;rro« v. Perro», 14 East, 423. 
 
 Wms. 074, Mo.s. 2.0'.t. {n) Youvr/ v. J'eachei/, 2 Atk, 254; 
 
 (i) 1 P. Wms. 577. WilUngon v. Brayjidd, 2 Vera. 307. 
 
 (o) 5 P. & C. 071-091.
 
 FOR SPECIAL PURPOSES ONLY. 475 
 
 ill her own power; tliat she designed tliat there should have been 
 a power of revocati(jii in the seUlenient {p) ; thai she thou{,dit 
 while slie liad tlie (Uvjd in her custody slie had also the estate at 
 her command ; tliat in fact she had been imposed upon by the 
 deed being made an absolute conveyance, whidi was unreasonable, 
 wlien it oiiglit to have had a power of revocation. 
 
 It is clear that a delivery to a third person for the use of the Delivery lo 
 party in whose favour the deed is made, where the granttjr parts "'"'* ^'"""'' 
 with all control over the deed, makes the grant ell'eetual {<i). 
 
 The cases in which the donor has a locus poenitentitc are those when donor 
 in which ho has made an ineflectual attempt to pass the legal [UJ.'l.fulS. 
 interest {r), or has validly vested the property in trustees, and has 
 not as yet declared the trusts (.s), or has executed, but retained in 
 his power, a deed executed for a particular purpose of his own and 
 not for the benefit of the grantees {t). 
 
 The grantor in a voluntary deed, wliicli has been kei)t in his Destroying 
 own possession, cannot release himself from it by tearing it up, 
 or burning it, unless of course the gift was imperfect («) ; for the 
 deed may be proved aliunde {v) ; and this, although the trustees 
 have been induced to re-transfer the fund to the grantor {u:). 
 
 Nor can the grantor undo his gift by making a fresh disposition Subsequent 
 of the property, unless, if the subject of the gift is witliin gninior."''* 
 27 Eliz. c. 4 {x), he sells it for value {ij). If the property is 
 within 27 Eliz. c. 4 {x), the voluntary disposition will prevail 
 against any subsequent voluntary disposition {z) ; and if the 
 property is not within 27 Eliz. c. 4, it will be good against any 
 
 {p) Vide post, pp. 498 et seq. Wiclham, L. R. 2 H. L. 323; Elph. 
 
 {(l) Shep. Touch. 57 ; Taw v. Bunj, Deeds, 120; Kerr, Fraud and Mis., 2nd 
 
 Dyer, 1G7 b, 1 Anders. 4, 2 Eoll. Abr. ed. 439. 
 
 24, pi. 7 ; Alford v. Lea, Cro. Eliz. 54, (;;) Brookhaiik v. Broolhanl:, 1 Eq. Ca. 
 
 2 Leon. Ill ; Doc v. Kiiiyht, 5 13. & C. Ab. 108 ; tSmith v. Lyne, 2 Y. & V. C. C. 
 
 G92. 345 ; Lanham v. Pirie, 2 Jur. (X.S.) 753, 
 
 {r) Antrobus v. >b'mitli, 12 Yes. 39, S. C. 3 Jur. (X.S.) 7U4 ; 7?e If'((//'« 7Vma7*, 
 
 ante, pp. 413, 414. 2 D. J. & S. 3G5 ; and see In re hooker, 
 
 (s) Re fSykes's Trush, 2 .J. & II. 415 ; 34 W. II. 34(3. 
 
 and other cases, ante, p. 431. {>c) 6'inithv. Lyiic, 2 Y. & C. C. C. 345; 
 
 (/) Ante, pp. 472 et seq. ante, p. 459. 
 
 («) Antrobus v. JSmith, 12 Ves. 39, (x) Ante, pp. 202 ct seq. 
 
 ante, p. 412 ; Uniache v. Giles, 2 Moll. {y) Ante, pt. iii. ch. i. 
 
 257, 2G5, 2G8, ante, p. 474; Naklred {z) Doe y. Jiuihmn, \7 Q. li. 123-733; 
 
 V. Gilham, 1 P. Win.s, 577 ; Xenoi v. ante, p. 240 ; see next note.
 
 476 
 
 SUBSEQUENT DISPOSITIONS 
 
 Settlor not 
 assisted in de- 
 feating his 
 own gift. 
 
 Voluntary 
 deeds to take 
 efiect on mar- 
 riage, when 
 binding. 
 
 subsequent disposition, whether by will or by gift inter vivo.?, anil 
 whether voluntary (a) or for value (?>). 
 
 r.ut where a man .settles property on himself for life and after 
 his decease upon trust to pay all the dchfs then owing hj him, and 
 subject thereto in trust for the volunteers, he can defeat the 
 settlement by creating voluntary debts by bond or other instrument 
 under seal (c). In fact a voluntary debt may, under 13 Eliz. c. 5, 
 avoid a subsequent voluntary deed {d). Where two trust deeds 
 were executed with respect to the same sum of stock, which was 
 transferred into the names of the trustees, it was held that the 
 first deed was not affected by the second, and that the second 
 deed failing to operate gave no claim against the assets of the 
 settlor (('). But where the first voluntary deed was imperfect {f), 
 or obtained by fraud {(j), a second voluntary deed will prevail 
 against it. 
 
 Xor will the Court in any manner assist a man to defeat his 
 own voluntary grant by enforcing at his instance a contract for 
 the sale of lands which he has previously conveyed without con- 
 sideration (A). 
 
 It has l^een laid down that a man {i) or woman (A) cannot recall 
 a voluntary deed executed by him or her when unmarried, not in 
 contemplation of any marriage in particular, l)ut declaring trusts 
 in favour of any future wife or husband and children. It is con- 
 ceived, however, that such a deed cannot stand against a settlor 
 
 (rt) Goochdn V, Goodwin, 1 Cli. Hop. 
 [173] 92 ; Villers v. Bemimont, 1 Vern. 
 100, ante, p. 461 ; FranJdin v. Thorue- 
 hury, ibid. 132 ; Bale v. Newton, ibid. 
 404 ; Clacerhuj v. Clavcriiuj, 2 ibid. 473; 
 CMchclck V. Doleman, ibid. 530 ; Ward 
 V. Lant, Prec. Ch. 182; JJuuf/hton v. 
 BowjMon, 1 Atk. 025 ; Taylor v. Jones, 
 
 2 Atk. GOO and note ; Scar v. Ashwell, 
 
 3 Sw. 411 ; Boltoyi v. Bolton, ibid. 414; 
 Newton v. Ashew, 11 Beav. 145 ; Scott v. 
 A^cott, 11 Ir. Eq. 487. 
 
 (6) Vernon v. Yalden, Appendix No. 
 VI. ; Kekeicich v. Jlanninr/, 1 De ( {. 'SI. & 
 
 a. 17G. 
 
 (c) Marhcell v. Marlwcll, 34 IJcav. 
 12. 
 
 (/.) Bil'\. (hirdon, 
 
 (d) Adames v. JMldt, L. R. G Eq. 4G8 ; 
 and other cases, ante, pp. IGG, 1G7, 398. 
 
 (e) Neu-ton v.Asheu-, 11 Beav. 145 ; and 
 see Smith v. Lyne, 2 Y. & C C. C. 345. 
 
 (/) Anon, case, Appendix No. XII. ; 
 Beatson v. Bcatson, 12 Sim. 281 ; OasMl 
 V. GasMl.2 Y. & J. 5U2. 
 
 (fj) Naldred v. Gll/mm, 1 V. Wms. 
 577 ; Dicldnson v. Burrell, I.. I>. 1 Eq. 
 337. 
 
 (/() Smith V. Gat-land, 2 Mer. 123; 
 Clarle v. Wlllott, E. II. 7 Ex. 318; 
 General Meat Sitp/jly Axsodatlon v. 
 Boiifflcr, 40 L. T. (N.S.) 12G, S. C. 41 
 L. T. (N.S.) 719; po.st, pp. 511, 512. 
 
 (/) Fetre v. K-<pli>afiRr, 2 My. & K. 
 49G. 
 2 Mv, & K. 503.
 
 OF SETTLED PROrERTY. 477 
 
 who has executud iL when very youii;^, unless iL can Lu clearly 
 proved that the .settlor perfectly understood tlie nature of the 
 deed; and that any extraordinary clauses in it were brought to his 
 notice, explained to, and understood by, him {/). 
 
 A settlement made in consideration of a marriage with a :\I;iin!iL,'c 
 deceased wifes sister (which is void because the parties are witliiii ^vhcn merely 
 the proliibited degrees) stands on tlie same footing as a voluntary ^'j'""''")- 
 settlement (m). 
 
 Where, in contemplation of a imrticular marriage, property is 
 conveyed to trustees upon trust for the settlor till the solemiii>^a- 
 tion of the marriage, and after upon other trusts, and the marriage 
 can never take place, as tliose subsequent trusts can arise only 
 upon an event wdiich can never occur, the trustees hold the 
 pro})crty upon trust for the settlor {n). And where ilm particular 
 marriage was iie\'er solemnized, but the parties cohaljited and had 
 children, it was held that, as the contract to marry had been abso- 
 lutely put an end to, the trusts declared after the solemnization of 
 the marriage had become inoperative and the settlor was entitled to 
 have the property vested in the trustees re-transferred to her (o). 
 
 The Court will not permit the parties to revoke a settlement 
 simply because they desire to make different terms from what they 
 desired at the time the settlement was executed (y>). 
 
 So where a settlement of the intended wife's property was made 
 in contemplation of a particular marriage, and the day before the 
 marriage she, and the intended husband, executed a deed poll 
 purporting to revoke that settlement, it was held by Lord Lang- 
 dale, M.IJ., that the settlement was not revoked (<j). 
 
 (I) Ereritt v. Kneritf, L. R. 10 Ivi- Brovn, 13 Cli. D. 202 ; //. v. M., 10 
 
 405; FhilUpHx. Mullbujs, L. R, 7 Cli. T. D. 178; Elph. Deeds, 331, 332; Ban- 
 
 24-1; James \. Couchman, 2d Ch. I). 212 ; mug, Marr. Sett. 233 et seq. ; ante, p. 
 
 and fice Beatson v. Beatson, 12 Sim. 281; 334. 
 
 Frkleaiuv v. Lonsdale, 1 D. J. & S. 433 ; (o) Essery v. Cowlanl, 26 Ch. U. 191, 
 
 Jarmtt v. Aldam, L. Iv. 10 Eq. 4(33 ; post, ante, pp. 334, 341 ; and see Thomas v. 
 
 pp. 480, 481. Brcnnan,lbL. J. (N.S.)Ch. 420; JPIhn- 
 
 {m) C'luipmaii v. Bradky, 33 Leav. GI, nell v. JIcsilri{)c, 10 IJcav. 346; Mitfurd 
 
 S. C. 4 D. J. & S. 72 ; Bruoh v. Brook, v. Reynolds, 16 Sim. 130 ; and sec Mac- 
 
 a Sm. & CI. 481, 9 H. L. C. 193 ; /S'cn/e queen, H. & W. 3rd cd. 243 et seq. 
 V. Lowndes, 17 L. T. (N.S.) 555; and sec (p) Bond v. Walford, 32 Ch. D., per . 
 
 Ayerst v. Jenkins, L. E. 16 Eq. 275. Pearson, J., 238. 
 
 (n) Chapman v. Bradley, 33 Beav. 61, (7) Bage v. IJorne, 9 Bcav. 570, S. C. 
 
 S. C. 4 D. J. iS: S. 72; Bai'son v. 11 Bcav. 227.
 
 478 
 
 SUCCESSIVE VOLUNTAT^Y 
 
 But in Bond v. Walford (;•) the intended wife and her father 
 executed the engrossment of her settlement, whicli -was kept by 
 the solicitors of the intended husband, by wliom, as well as by the 
 proposed trustees, it was never executed. The engagement was 
 broken off by mutual consent a few months after. Three and 
 a half years afterwards, on action brought by the lady, the deed 
 was declared void, upon the ground tliat, e^■en if a marriage did 
 take place between the parties, it would take place under such 
 dillerent circumstances that it would not be the marriage then 
 intended. 
 
 To wliich 
 settlement 
 does eonsi- 
 (leration of 
 marriage 
 attach ? 
 
 In Hohinson v. Diclrnson (s) a lady, after a marriage (as to the 
 validity of which tliere was no doubt at the time), suf'l'ered a re- 
 covery and made a settlement of her real estate, in pm-suance of 
 an ante-nu})tial agreement. It wds afterwards discovered, Ijcfore 
 the birth of issue, that the marriage was void ; whereupon, on the 
 supposition that the first settlement was void, a second recovery 
 was suffered and settlement executed, and tliey were afterwards 
 validly married. It was licld lliat altliough the first recovery and 
 settlement were valid at law {t),y(it in equity the first settlement 
 being founded on misapprehension, was not binding on the parties, 
 and that the rights of the issue were regulated by the second 
 settlement (n). 
 
 These, however, are not simple cases of successive voluntary 
 settlements; they are embarrassed by the question, Mhether tlie first 
 settlement was voluntary, or whether the estates limited to take 
 effect on the marriage being solemnized would not come into force 
 on tliat same marriage being solemnized at any future time, and 
 be supj)orted by it (r). It is a])})relicnde(l tliat the consideration 
 of the marriage cannot extend to both the settlements. It might 
 be tliought more in accordance with the reason and princi]ile on 
 which that consideration is founded that it should supjiort that 
 contract alone whicli was in the minds of the parties at the time 
 
 («) 3 Russ. 300. 
 
 (<) JJoufjhion V. Sandilandg, Z Taunt 
 342. 
 
 (m) S. C. inCIi. HK riohinson v. Dichen 
 son, 3 Kuss. 309; but sec Lvmlcy v 
 
 (r) 32 Ch. D. 2. 38. 
 
 J)cshorovfjh,22 L. T. (N.S.jOOr; atitc, 
 p. 402. 
 
 (r) TJirmas v. Lrcvnav, 1,'j I^. ,T. (X.S.) 
 ('11.420; M'JJon7ieIl\.JI(srlrir/c, iGDcaV, 
 346 i Bo7id V, Walford, 32 Ch. D. 2.38,
 
 SETTLEMENTS. .\jij 
 
 of tlio inariia^^u, and on llie laiih ol' wliirh the inaniajjie iiiij^liL be 
 said to have l)cen contracted {>'■) ; imd, sulijccl to any question as 
 to undue influence (x), to treat any such ja-evious inconsistent 
 dispositions as unaided hy tlic niaiTi;ige considcrali(.n. 
 
 As a voluntary settlement is not sujjported liy a contract, so TruRi for 
 a settlor of a voluntary post-nuptial settlement which contained a """"''■■""""• 
 discretionary trust for the maintenance of the children out of 
 tlio income of the fund settled is not entitled to rcconji himself 
 out of the accumulations of that income any sums he may have 
 paid for their maintenance {//). 
 
 (w) Bond V. Walford, 32 Ch. D. 23H. {y) In re Kcrrison's Trust.i, L. K. 1 
 
 (x) JRobinson v. DicJcciison, 3 Russ. 399. Eq. 422.
 
 CHAPTER V. 
 
 GIFTS VOIDABLE BETWEEN THE PAKTIES FOll FBAUD, UNDUE 
 
 INFLUENCE ETC., TltACTISED ON THE DONOI!. 
 
 Framlbctwceu TiiE lulc, that a mail cannot allege fraud to avoid his own deed, of 
 course has no application where the fraud was practised 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. 
 
 Conse(pieiitly, when a voluntary deed has been obtained by fraud 
 or undue iuUuence (z), under circumstances from which it appears 
 that the donor did not know the effect of the deed, and did not 
 make it with his eyes open (a), the Court will set it aside or 
 restrain proceedings upon it at law (h). 
 
 Deed not 
 
 properly 
 
 understood. 
 
 If a man executes a deed without lieing aware of the effect of 
 it, that deed cannot be set up against him either at law (r) or in 
 e(|uity {(I). "Where there are circumstances which would lead tlie 
 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 tlie donor is made 
 out by the other side) unless satisfied that the effect of what 
 be was doing was fully explained to the donor (r). "Where, for 
 
 (~) See further as to this subject, the 
 notes to Ihitjuenin v. Baseley, 14 Ves. 
 273, 2 Wh. & Tu. L. C. 6th ed. 597 et 
 Beq. ; Kerr, Fraud & I\Iis. 2nd ed. 122 ct 
 Kcq. ; IViichey, Sett. 584 ; 2 Spence, Eq. .T. 
 209 ; Pollock, Cont. 4th cd. 55(5 ct scq. 
 As to Wills, see 1 Jarm. 4th ed. 35, 
 36; IMl V. Hcdk L. l\. 1 P. & M. 
 481 ; Parfitt v. Lawless, L. II. 2 P. & 
 M. 462 ; Lontjford v. Pardon, 1 h. Iv. Ir. 
 75; Wnujrune v. Wivfjrorc, 11 P. D. 81. 
 
 (a) See note (-.), and Wollanton v. Trihe 
 L. R. 9 Eq. 44 ; button v. Thompson, 23 
 Ch. U. 278; National ProrlncialBank of 
 England v. Jackson, 33 Ch. D. 1., post. 
 
 (h) Lloyd V. Clarl; 6 Hcav. 309. 
 
 (r) Doc V. Bennett, 8 C:. & P. 124, 
 
 {d) Bamsdcn v. Jlijlton, 2 Yes. 304; 
 Jliifjvcnin V. Basdcy, 14 Ves. 273, 296 ; 
 Jlogliton V. Jloghton, 15 Beav. 278 ; Wol- 
 luston V. Tribe, L. E. 9 Eq. 44 ; Lister 
 V. Hodgson, L. E. 4 Eq. 30; Everitt 
 V. Everitt, L. E. 10 Eq. 405 ; Dutton v. 
 Thompson, 23 Ch. D. 278 ; Phillips v. 
 Mullings, L. E. 7 Cli. 243; and sec 
 In re Garnett, 31 Ch. D. 1. 
 
 (c) Price V. Price, 14 Beav. 598, S. C. 
 1 Ue G. M. & G. 308 ; Grosvenor y. 
 t'iherratt, 28 Beav. 659 ; and see post,
 
 VOLUNTARY DEED WllEX IIECTIFIKI). 481 
 
 cxaiuplu, a man who could noL wiiLu exucuLctl a <1(jcuiiil'1iI, drawn 
 out, road over to liiin, ;iiid attested hy an uiiprolV.s.sioiial person, 
 and purportin^L,^ to nrant all liis property to ids wife, the Court, 
 independently of the validity of the <j;ift ].er se, deelined to 
 support it (/). 
 
 A gift not properly understood l.y tlie ,L,ri-aiiiur eanuot Ik- upiieM, 
 though there was no adiud fraud (y), and may he set aside even 
 after the death of donor and donee (A). 
 
 The Court cannot reform or rectify a voluntary settlement Voi„„iary 
 (ifjainst the settlor. He, and he alone, can choose on what terms or 8«"'/'"",""' ""^ 
 
 rectilicil 
 
 subject to what conditions to make his gift ; and the Court cannot ".'/o''""' 
 compel him to alter Ids own deliberate act, however capricious or'*" '*"^" 
 inadvisable it may be (/). 
 
 If the deed does not express the intention of tlie settlor, and 
 he contests it, the deed must stand or fall in its actual condition 
 without alteration (Z:). So, unless the settlor consents, the volun- 
 tary settlement must be uplield or set aside in tvio ; it cannot be 
 modified to suit former intentions (/). 
 
 A voluntary settlement may, however, be rectified or reformed Voluntary 
 in certain cases upon the ground of inistake, either bv the inser- st^^'emcut 
 
 ' -I when rcctincd. 
 
 tion {m), or alteration («), or omission (o) of powers. 
 
 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 settlement {ji). 
 
 (/) Pricc\. Price, 14 Beav. 5U8, S. C. L. \l. Jr. 478; see Kerr, Framl & Mis. 
 
 1 De ( \. M. & G. 308, post, p. 492 ; Gros- 2ncl ed. 507. 
 
 venor v. Sherratt, 28 Beav. 659. (/.•) Broun v. Kennalj), 33 Beav. 147 ; 
 
 {g) Evans v. Llewdhjn, 3 Bro. C. C. Kco<jh v. M'Orath, 5 B. II. Ir. 478, 502 ; 
 
 150; Sturrje \. iSturge, 12 Beav. 229; and scc7/(w//cs v. A'm/fw, 18 W. B. 1122. 
 
 FhilUpH V. Mulliiifjs, L. B. 7 Cli. 243; (/) (^Wtc v. /yrtmo^c, 15 Beav. 232,250; 
 
 Button V. Thompson, 23 Cli. D. 278, PhilUpson v. Kerry, 33 Beav. 628, S. C 
 
 and see Mara v. llajj, W. N. (1872) 127 ; 038 ; Turner v. Collins, L. l\. 7 Ch. 342. 
 
 National Provincial Bank of J-Jtujhtnd v (;«) JIunlcij v. Pearson, 13 Ch. D. 545; 
 
 /«r/,so)?, 33 Ch. D. 1. Welman v. Welman, 15 Ch. D. 570; 
 
 {It) Pldllipson V. Kerry, 32 Beav. (J2S, James v. Conchman, 29 Cli. D. 212. 
 
 S. C. 638. («) Keoyh v. M'arat/i,d L. li. Ir. 478. 
 
 (i) Brown v. Kennedy, 33 Beav. 133, {o) Lackersteen v. Lac/ccrstccn, 5 Jur. . 
 
 147, S. C. 154; PhiJUpson \. Kerry, ?yi (N.S.) 1111; In re J)c La Touches 
 
 Beav. 628, S. C. 038; Lister v. Hodgson, Hettkment, L. B. 10 Eq. 599 ; Turmr v. 
 
 L. B. 4 Eq. 30, 34; Turnery. CoVius, Collins, L. R. 7 Ch. 329; llauktj v. 
 
 L. B. 7 Ch. 329; Keoyli v. ^PiJrath, 5 Pearson, 13 Ch. D. 545. 
 
 (/>) Turner v. Collins^ L. K. 7 Ch. 329, 342. 
 
 I I
 
 482 VOLUNTAliY DEED WHEX KECTIFIED. 
 
 If a man executes a voluutaiy deed and thereby declares trusts, 
 after his death it is competent for a volunteer under that trust, if 
 he can prove, by instructions or otherwise, that any of the trusts 
 have been declared erroneously, contrary to the intention of the 
 settlor, to file a bill to have those trusts reformed (5), even if the 
 error be such as to carry the property back to the estate of the 
 original settlor (/■). 
 
 But where a power of revocation is omitted in a voluntary 
 settlement under the notion that it is not necessary to insert it, the 
 settlement cannot be rectified Ijy inserting the power (.s-). 
 
 Mistake must In Order to enable the Court to rectify or reform a voluntary 
 \naii\\l^ settlement on the ground of mistake, it must be proved that such 
 parties. mistake was common to all the ixirtics 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 concurrent intention {11). 
 
 The Court will reform or rectify a voluntary settlement upon 
 the uncontradicted evidence of the plaintiff alone (r), and tliat 
 evidence may be given by parol if it lie proved that written 
 evidence cannot be obtained {v:). The proper proceeding is by 
 action {x) in the Chancery Division of the High Court of Justice, 
 unless the fund tlie subject of the settlement has been paid into 
 court under the Trustee Eelief Acts (,y). The action cannot be 
 heard as a short cause {z). The order of the Court to rectify the 
 deed is enough to pass the legal estate without a conveyance {a), 
 and in other cases the deed is usually rectified by indorsing a copy 
 of the order on it (//). 
 
 {q) Lister v.Hoclfjson, L. 11. 4 Eq. .'54. (./) .TuJ. Act, 1873, s. .34 ; and see K. S. 
 
 (r) Thompson v. Wlutniore, 1 J. & II. C. Orel. 55, r. 2 (5). 
 
 268, 273. (//) lie Malct, 30 Bcav. 407 ; In re 
 
 («) WorraU v. Jacol, ?> 'Slav. 270. BinVs Trunts, 3 Ch. D. 214. 
 
 (0 lioohe V. Lord Kcmhujton, 2 K. (z) ('lenndlx. ClcnneV, ^\^ N. (1884) 
 
 & .J. 253 ; Bcnthij v. Machuij, 31 Bcuv. 14. 
 
 151, S. C. 4D. F. &J.27'J. (a) While v. UV^/Zr, L. T. 15 E(i. 
 
 (it) Fowler V. Folder, 4 Dc (i. & J. 247; J/unk;/ v. Pcarsun, 13 (,'li. D. 545; 
 
 250, 265. aiul see Seton, 4th cd. 1343. 
 
 (u) Ilanleij v. Pearson, 13 Ch. D. 545. (6) Hanley v. Pearson, 13 Ch. I). 549 ; 
 
 (w) Lad.-crstecn v. Ladieretecn, Jur, James v. Condnnan, 29 Ch. D. 218; and 
 
 (N.S.) 1111. see Scton, 4th cd. 1343.
 
 CONEIDENTJAL JtELATloNS. 483 
 
 It is with the object of protecting from fnuul of this kind {J>h) Inrnpnciiy of 
 persons who are less able themselves to cope with it, tiuit infants, rurjuri-!'"^ 
 insane persons (c), or persons of weak intellect, are to a <,'reat 
 extent incapacitated from Imuhn-- Ihcniselves by their contracts, 
 and that contracts made under duress are voidalde by the person 
 whose free will was restrained (d). 
 
 So before the Married Women's Property Act, 1882, a married 
 woman could only liind her separate property in equity in certain 
 special cases, and the common law did not allow her to contract 
 at all (e). 
 
 Where at the time that a gift or voluntary settlement is made a Confi.lcntial 
 confidential or fiduciary relation existed between 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 circum- 
 stances are to be viewed with a greater or less amount of suspicion 
 in proportion to the means winch the relation of the parties to 
 each other aflbrdcd of exercising terrorism or undue influence, or 
 inducing the donor to make tlie gift or voluntary settlement with- 
 out being fully aware of and intending what he was d<iing (/). 
 
 The common law, for instance, having regard to the great Huslaml mvl 
 influence which a husband has it in his power to exert over his 
 wife, allowed no contracts between husband and wife to be 
 binding ((j). For the same reason a married woman could not in 
 
 {hb) Ante, pp. 480, 481. (/) Sec the cases cited and commented 
 
 (c) As to degrees ofiucapacity of mind, on under Uutjucnm v. limehy in 2 Wh. 
 
 see White v. Small, 2 Cli. Ca. 103 ; Lord & Tu. L. C. 6tli ed. 607 ct seq. ; Kerr, 
 
 Thurlow's judgment in Welles v. Muldk- Fraud & Mis. 2nded. 120 ct seq. ; and sec 
 
 ton, 1 Cox, 119; Selhj v. Jackson, yuntis \. CWcw/., 9 Ves. 182, a ca.se of 
 
 6 Beav. 192, in which, under the circuni- master and servant ; lihodcK v. Bate, L. H. 
 
 stances, the Court refused to set aside 1 Ch. 2;")2 ; Lijon v. Jliniu-, L. I{. E<i. 
 
 deeds by ii person under restraint in a 055 ; J'liillipHon. v. Kerry, 32 Ik-av. 
 
 lunatic asylum, under nuHliealcertiiicates; 028; L'roun \. A'luiuil;/, :iA iJeav. l.VS; 
 
 and Jn re Gordon, L.Vx. 10 Ch. 192. (Irahain v. Johnson, I.. W. S Kq, 30; 
 
 {d) 2 Bl. Com. 29 et seq.; 2 Broom & Mitchell v. Ilonifraij, 8 (J. B. 1'. 587 ; 
 
 H. Com. 408 ; Kerr, Fiaud & Mis. 2nd post, pp. 484 et seq. 
 ed. 120 ctscq. (.'/) See 1 Bright, Jh.sb. & Wife. 29; 
 
 (e) 45 & 40 Vict. c. 75, s. 1 (2), (;5), Price v. Price, 14 Beav. 598 ; but nee tio«r 
 
 (4) ; Conolan v. Lerjland, 27 Ch. D. 032, 45 & 40 Vict. c. 75, ss. 1 (2), 10 ; ante, 
 
 In re Shakespeare, 30 Ch. D. 109 ; ante, pp. 281 ct seq. 
 pp. 281, 282. 
 
 1 I 2
 
 484 
 
 UNDUE IXFLUEN'CE 
 
 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 com- 
 missioners " shall examine her apart from her husband touching 
 her knowledge of such deed, and sliall ascertain whetlier she freely 
 and voluntarily consents to such deed, and unless she freely and 
 voluntarily consents to such deed shall not permit her to acknow- 
 ledge the same " (i). 
 
 Guardian. Again, a Ward is, or is supposed to be, very much under the 
 
 power of his or her guardian (A), and a child is assumed to be greatly 
 
 Father. Under the influence of his father (/). So a patient is regarded as 
 
 Doctor. • very mucli under the influence of his doctor (m). A client or 
 
 Solicitor. principal seldom knows so much of his own affairs as his solicitor 
 
 or agent does, and is therefore peculiarly open to unfair dealing on 
 
 the solicitor's part (n). 
 
 In the case, tlierefore, of a gift or voluntary settlement made by 
 one of such persons to, or for the benefit of, the other, the one is 
 supposed to be under the influence of tlie other ; and it must be 
 shewn that sufficient protection has been interposed against the 
 exertion of such influence. 
 
 Burilen of In considering the question what undue injluencc will avail to 
 
 cast on donee, render voidable a gift or voluntary settlement by a donor so 
 
 obtained from him, the following important distinction must be 
 
 carefully borne in mind : — 
 
 If the person or persons who has or have obtained the gift or 
 voluntary settlement stood in a confidential or fiduciary relation to 
 the donor at the time the gift or voluntary settlement was made, 
 such undue influence will be ^;7'fSH5»(Y/; and, if not rebutted, the 
 gift or voluntary settlement will be avoided. 
 
 The burden of proving that tlie transaction was a righteous one, 
 
 (A) 3 & 4 Will. 4, c. 74, ss. 77, 78. 
 
 (0 3 & 4 Will. 4, c. 74, s. 80. 
 
 (/.) See Iljilton v. ITjlton, 2 Vcs. 
 547-8; JIatch v. Jlatch, 9 V<!K. 292, 
 296; Eqiey v. Lake, 10 Hare, 200; 
 Taylor v. Johnston, 19 Ch. D. 003; 
 post, pp. 493, 494. 
 
 (/) Keiiipson v. Ashlec, L. II. 10 Cii. 
 
 15 ; Bainhr'Kjfjc v. liroicnc, IS Ch. D. 188; 
 post, pp. 488 ct seq. 
 
 («) Mitchdl V. Jlumfran, 8 Q. B. D..587. 
 
 («) Sec Kerr, Fraud & Mis. 2nd cd. 
 140 et seq; Monjaii v. Mind, G Cli. D. 
 038 ; post, p. 493. As to what consti- 
 tutes the relation of solicitor and client, 
 see Goddiinl v. Carlisle, 9 Price, 109.
 
 WnEN PRESUMED. 485 
 
 was fairly conduclod as if Ix^lwcon stran^'crs, in such a caso is cast 
 upon the doiioc. To (Mialil.- the (l.,ii..c to retain tlic ^'ifl or t.t 
 upliold tlu! voluntary .seltleinent, ho must prove dearly and eon- 
 clusivoly that it was made by the donor with full knowl('dj,M' of 
 wliat he was doing, aiul with tlie free intention of giving the donee 
 the benefit wliieli lie cunfi'iivd upun liim l.y that gift or voluntary 
 settlement (o). Tlie donee must' prove allirmatively that the gift 
 or voluntary settlement was made by a person in such a posilion 
 as would enable him to form an absolutely free and unfettered 
 judgment 0>). 
 
 If, however, the person or persons who has or have obtained 
 that gift or voluntary settlement did not stand, at the time that 
 gift or voluntary settlement was made, in a confidential or fiduciary 
 position to the donor, then undue infiuence is noi presumed. 
 
 It is a doubtful point wlietlior, in a caso in wliicli no confidential Bimlen or 
 or fiduciary relation exists between the donor and the donee, the S on ^Ton'c" 
 burden of proof lies on the donee to shew that the donor perfectlv *•";'"'«■''•;"•"• 
 
 ^ ■' iiml. rst'XHl 
 
 understood the nature of his act. This has been laid down as the nature of his 
 law by Lord Romilly, M.R., in Cooke v. LkhwUc (7) and Hoyhtvn 
 V. Hogliton (r), and there is a dictum of Lord Hatherley, L.C, in 
 PhillijJS V. MuUinrjs (s) to the same effect ; but it must be observed 
 that these judgments and this dictum are wider in their scope than 
 was necessary for the decisions in the cases (7). 
 
 But whether in every case the burden of proof lies in the first BarJen of 
 instance on the donee to establish the fact that the donor perfectly a^r*ircon"i. 
 understood the nature of his act or not, it is quite certain that if <'ent''»l rcla- 
 
 ^ tion (Iocs not 
 
 no confidential or fiduciary relation exists l^etween the i»arties, and exist. 
 if the donee establislies tliis fact, then the burden of proof is 
 shifted to the donor. 
 
 The donor must then prove affirmatively the existence of fraud, 
 
 (0) Hunter v. AtUns, ?> My. & K. 113 ; (.9) L. R. 7 Ch. 246. 
 
 Smith V. Kay, 7 H. L. C. 750 ; Parfitt \l) See ViUcrs v. Beaumont, 1 Vorn. 
 
 V. Laidess, L. R. 2 P. & D. 468, per Lord 100 ; Jfwilcr v. Athhtfi, .T My. & K. 11.1, 
 
 Penzance; Ijainhrir/f/e \. Urowne, IS Ch. 13G; Beanland \. Bradhii, 2 Sni. & (i. 
 
 D. 188 ; TayJor v. Johnston, 19 Cli. D. COS. 339 ; K'lrwan v. Ctillcn, 4 Ir. Ch. IJcp. 322, 
 
 [p) Archer v. Hudson, G H. L. C. 49; 328; Armstrony v. Arnistrony, Ir. 1>. 8 
 
 Prn'/itt V. Lawless, L. I!. 2 P. & D. 409. Eq. 1 ; Jfcnry v. Armstrony, 18 Ch. D. 
 
 (q) 15 Peav. 234. G68 ; and see Poll. Cont. 4th e.l. .')G1- 
 
 (r) 15 Beav. 299; and see Priee v. 5G2; Story, Efj. .lur. 12tli cd. ss. 308- 
 
 Price, 1 De G. M. & G. 308. 322.
 
 486 
 
 WHAT IS A CONFIDENTIAL 
 
 Oround of 
 disiiuctiou. 
 
 Hunter v. 
 
 AtTcins. 
 
 undue influence, or surprise at the time lie made the gift or vohin- 
 tary settlement in order to avoid it; and unless and until this is 
 proved the gift or voluntary settlement will be supported {u). 
 
 The ground of this fundamental distinction between positions 
 which, in relation to the donor, arc confidential or fiduciary, and 
 those which are not, is this. The natural influence which such a 
 relation involves exerted by those who possess it to obtain a benefit 
 for themselves is, in the view of the Court, of itself an undne 
 influence (v). If, therefore, the relation is deemed by the Court a 
 confidential or fiduciary one, it will be assumed that the person 
 who lills that position has exerted the natural influence that 
 position gave him — that is to say, has employed undue influence ; 
 and, therefore, the Court casts on him the onus of shewing at least 
 that the influence was not then operative {w). 
 
 The general principle upon which the Court acts in such cases 
 has been frequently stated ; and the Court has always been careful 
 to refrain from any attempt to limit its jurisdiction by giving any 
 precise list of possible instances in which relief may be granted. 
 
 So Lord Brougham, L.C., in his judgment in Hunter v. Atldns (x), 
 said : " For I take the rule to be this : there are certain relations 
 known to the law as attorney, guardian, trustee. If a person 
 standing in these relations to client, ward, or cestui que trust 
 takes a gift or makes a bargain, the proof lies upon him that he 
 has dealt with the other party, the client, ward, &c., exactly as a 
 stranger would have done, taking no advantage of his influence 
 or knowledge, putting the other party on his guard, bringing 
 everything to his knowledge which he himself knew. In short 
 the rule, rightly considered, is that the person standing in such 
 relation must, before he can take a gift, or even enter into a 
 transaction, place himself in exactly the same position as a 
 stranger would have been in, so that he may gain no advantage 
 whatever from In's relation to the other party, beyond what may 
 be the natural ;iiid umivoidiible consequence of kindness arising 
 out of that relation 
 
 (m) Farfitt V. Laicless, L. I{. 2 P. & D. 
 462, 469. 
 
 {v) Parfilt V. Lawless, L. R. 2 P. & D., 
 per Lord Penzance, 469 ; Taylor v. ./o/m- 
 ston, 19 Cli. D. 008, por Bacon, V.C. ; 
 
 and see Turner v. Collins, L. II. 7 Cli., 
 per Lord Ilatherley, L.C., .339. 
 
 {xo) Purjitt V. Lan-less, L. 11. 2 P. &D. 
 409, 470 ; Taijlor v. Johiiston, 19 Ch. D. 008. 
 
 (./•) 3 Mv. & K. 135.
 
 487 
 
 KELATIOX TO DoNOK. 
 
 " Tlio rulo, I lliiiik, cimiKii lie laid down imicli iiioic jnvcisfly 
 tlmn 1 li;iv(! stated it; that where the kiH.wii mid dclincd ichiliou 
 of attorney and client, guardian and ward, trustet! and cestui (juo 
 trust, exists, tlie conduct of Hie party henefited nnisL l)o such as 
 to sever the connection, and to ])lace him in (lie same circum- 
 stances ill wliicli a iiieiv siraiiucr would have stood, <^ivh)<^ iiim 
 no advantage, save only whatever kindness or favour may liavo 
 arisen out of the connection ; and that where the only relation 
 between the parties is that of friendly habits or habitual reliance 
 on advice and assistance, accompanied with partial employment in 
 doing some sort of business, care must be taken that no undue 
 advantage shall be made of the influence thus acquired. The 
 limits of natural and often unavoidable kindness, with its effectSi 
 and of undue influence exercised or undue advantage taken, cannot 
 be more I'igorously defined ; nor is it, perhaps, advisable that any 
 strict rule should be laid down — any precise line drawn." 
 
 So it was laid down by Lord Cottenham, L.C., in Dent v. Ben- 
 nett (y), that the relief stands upon a general principle, applying to 
 all the variety of relations in which dominion may be exercised 
 by one person over another. Any enumeralif)n of the descriptions 
 of persons against whom the beneficial jurisdiction of the Court 
 ought to be most freely exercised would merely narrow or fetter 
 its scope. 
 
 So Lord Kingsdown said : " The principle applies to every case 
 where influence is acquired and abused, where confidence is 
 reposed and betrayed " (z). 
 
 So Lord Chelmsford, L.C., in Tate v. Williamson (a), stated the y^,^ ^ 
 principle in the following general terms : — " Wherever two per.sons " '/'•<""«<"'• 
 stand in such a relation that, while it continues, confidence is 
 necessarily reposed liy one, and the influence which naturally 
 grows out of that confidence is possessed by the other, and tliis 
 confidence is abused, or the influence is exerted to obtain an 
 
 (.?/) 4 My. & Cr. 27G; perSirS. Koniilly Lamottc, 15 Beav, 234, 240; Billafle v. 
 in bis celebrated reply in Hiiguenin v. ISoutlice, 9 Hare, 534, 540; JUiodcs v. 
 Baseley, 14 Ves. 285, 28G ; Gibson v. Bate, L. R. 1 Vh. 2b'2, 258 ; MltduU v. 
 Busndl, 2 Y. & C. C. C. 104 ; Fov.ier v. Ilomfra]/, 8 Q. 13. 1). 587. 
 Wijatt, 24 Beav. 232, 237; Coolce v. (~) >Smi7/< v. AVn/, 7 II. L. C. 777. 
 
 (o) L. i\. 2 Ch. 61.
 
 488 
 
 WHO STAND IN CONFIDENTIAL 
 
 Parfitt V. 
 
 Lairkss. 
 
 fidvaniage at the expense of tlie confiding party, tlie person so 
 availing himself of his position will not l)e permitted lo r^'lain llie 
 advantage, although the transaction could not have been im- 
 peached if no such confidential relation had existed." 
 
 And in Parfitt v. Lav.icss {h), Lord Penzance pointed out that 
 " in equity persons standing in certain relations to one another — 
 such as parent and child, man and wife, doctor and patient, 
 attorney and client, confessor and penitent, guardian and ward — 
 are subject to certain presumptions when transactions between 
 them are brought in question ; and if a gift or contract made in 
 favour of him who holds the position of influence is impeached by 
 liim who is subject to that influence, the Courts of equity cast 
 upon the former the burden of proving that the transaction was 
 fairly conducted as if between strangers ; that the weaker was 
 not unduly impressed by the natural influence of the stronger, or 
 the inexperienced overreached Ijy him of more mature intelli- 
 gence." 
 
 Giftorvolun- 1'be general principle that gifts made to, or voluntary settle- 
 ^-'^^idaUeTf'to^* ments made in favour of, a person who stands in a confidential or 
 person in con- fiduciary relation to the donor are voidable at that donor's option, 
 
 fidentiii! 
 
 position to unless the donee can prove the transaction to have been conducted 
 as if between two strangers, has been illustrated by frequent 
 decisions. 
 
 A gift or voluntary settlement made by a child to or in favour 
 
 of his father very soon after that child has come of age is always 
 jealously regarded by the Court. 
 
 As was laid down by Lord Ptomilly, ]\I.li., in Hoghton v. 
 Hogliton (c), and quoted with approval by Lord Hatherley, L.C., 
 in Turner v. Collins (d), " two things are required to be proved 
 by a parent setting up a deed in such a case : first, that the deed 
 was the real and actual deed of the child, and was intended by 
 the child to have the operation which it has ; and, secondly, that 
 that intention was fa lily produced." 
 
 Now, the relation of fatlier and child is snoli ihat iiillucnce is 
 
 Gift or volun- 
 tarj' settle- 
 ment from 
 child to 
 father. 
 
 {b) L. R. 2 P. & D. 408; Brett, J., and 
 Baron Pigott concurred. 
 
 (c) 15 Beav. 278. 
 
 (d) L. K. 7 Ch. 338.
 
 liKLATIoN T(» DONOi;. 481) 
 
 assumed, as belwcou ilanii. it is imt assunu'.l ilial siicli inllu.'iico 
 is unduly exorcised; but it docs lie on tlie fjitlu-r, if lie lakes any 
 l)on('lil under a t^ift or voluntary selllemeni, tu piove the ri;^dit('ous- 
 ness of Iho transaction; and if lie fails lu do so, tliat gift (jv 
 settlement will be set aside {c). 
 
 In Turner v. Collins (/), a son under twenty-two years of ft;^n, Tttmtrx. 
 and then considerably in debt, without any indejjendent advice, ^ ""'""■ 
 executed a deed by which he gave to his father's second wife 
 and her dauglitcr successive estates for life in two reversionary 
 interests to which he was entitled, and also gave his father a power 
 of appointment, in the event of his marrying a third wife, over 
 that one of these two reversionary interests, which he derived 
 from his mother's father. It was jiroved that the. transaction was 
 pressed on by his father, though the son understood what was 
 going on. Lord Hatherley, L.C., held that, if proceedings had 
 been taken in time, this deed could not have been supported 
 against the son. 
 
 In Kem2)soii v. Ashhcc (//) a young lady scarcely o\'cr twenty- Krmpson v. 
 
 ••11 CI- ■ Anhbee. 
 
 one years or age joined her stepiather in executing a bond as 
 surety for the repayment by liiin of £G0O payable at the end of 
 six years, but she received no consideration for this. She was at 
 the time living in her stepfather's house, and had no independent 
 advice ; she had an income of only £1!)5, and executed the bond 
 at the request of her stepfather. It was held by the Couit of 
 Appeal that, if she had taken proceedings witliin a reasonaWe 
 time, the bond could have been set aside. 
 
 So if a gift or voluntary settlement is made by a child to or r.ift orvolun- 
 in favour of his father, soon after coming of age, while such child ^icixt l.ycliil.1 
 is not entirely emancipated from the father's control, aUh(.ugli ^'fJJj'J'^^^^i^lJ'" 
 
 of npc. 
 
 (e) So gifts were set aside in Carpenter Gift'. 417; Chambers v. Crahhc, 34 Boav. 
 
 V. Ileriot, 1 Ed. 338 ; Haves v. Wjiatt, 457 ; Berdoe v. Dawson, 34 Ifcftv. G03 ; 
 
 3 Bro. C. C. 15G; Heron v. Heron, 2 Atk. Bainhrifjf/e v. Jiroime, 18 Cli. D. 188; 
 
 IGU; Younff v. Peachy, 2 Alk. 254; and see Eversley, Doni. Kcl. 578 ct scci. ; 
 
 Hernc v. Her7ie, Barnard". Cli. 430 ; Cock- Story, Eq. Jiir. 12th cd. s. 309 ; Pnllmk, 
 
 vu/ V. Pratt, 1 Ves. 401; Baler v. Cont. 4th cd. 5; Kerr, Fraud & Mis. 
 
 Brndlen, 1 Pe G. M. & G. 597 ; Hof/hton 2nd ed. 155. 
 
 V. Hof/iiton, 15Beav. 278 ; Bur;/\. Oppen- (/) L. R. 7 Ch. 329. 
 
 heim'i'o Beav. 594; Davies v. Davies, 4 (g) L. R. 10 Ch. 15.
 
 490 WHO STAND IN CONFIDENTIAL 
 
 there may be no direct evidence of any undue pressure by the 
 father, yet the Court will infer pressure and undue influence from 
 such a state of circumstances, and that gift or voluntary settle- 
 ment' may be set aside, at least as against the father, if impeached 
 by the child within a reasonable time. To support such a deed 
 the father must shew the child executed the deed of gift or 
 voluntary settlement after having had independent advice, with a 
 full knowledge of its contents, and a free intention of giving to 
 the father the benefit the deed or voluntary settlement conferred 
 upon him (Ji), 
 
 Bainhriggew Thus in Bahibrifjgc V. Broume (^), where a daughter aged 
 twenty-five, usually living in her father's house, but at the time 
 she executed the deed staying with her aunt, and two sons of the 
 respective ages of twenty-four and twenty-two years, students at 
 universities, who executed the deed when at home in the presence 
 of their father and mother, by deed charged their reversionary 
 interests under the marriage settlement of tlieir parents with 
 payment of certain moneys due by the father, such deed was held 
 void as against him. 
 
 Giftorvolnn- The same principles apply to the case of a person who has 
 meut^by child received a gift from a child to whom he has placed himself in 
 lr;r,S. loco parents. 
 
 Archery. In Arch cr y. Hudson (Jc) a niece, two months after she came 
 
 of age, and after she had entered into possession of her property, 
 joined as surety for her uncle in signing a promissory note for 
 £500 to secure a debt due from liim. She had been brought up 
 by him, and at the time she signed the note was living in his 
 house. Lord Langdale, M.E., held that the uncle stood in loco 
 parentis to her, and set aside the security as obtained by his 
 undue influence. 
 
 "When gift or But although in such a case the influence of the father over 
 settlement by ^^^^ chM is assumcd, yct if only a proper influence is exercised, 
 
 child on father 
 
 is upheld. (/j) Bainhr'ujfje v. Broivne, 18 Ch. D. jHussoj, 1 Ball & 15. 233; Beadcy v. 
 
 188. Mufjrath, 2 Scii. & L. 31 ; Dctlmarr v. 
 
 (i) 18 Ch, D. 188. jiletropolitan and Provincial Bank, 1 II. 
 
 {Ic) 7 15cav. .051, S. C. 5G4; Osmond & 'M. G41 ; Bspcij v. Lake, 10 Hare, 2G0. 
 
 V. Fttzroy,o I'. Wnis. 120; Dawson y. See Eversley, Dom. IJcl. 581.
 
 RELATION TO DONOR. 491 
 
 for tlic Ijonefit of tlic child, ;iihl iu)t for the inlvaniui^i' of tlio 
 fiitliur, tlie gift or vuluiilarv si'tllcnioiiL will Itc uiihcltl (/). So 
 Turner, L.J., said in Wrujlil v. Vfoidcrplauh- {m) : "Tin' law on tlic 
 subject is well settlnl. A child may iiiakc a <,Mlt to a ]»arciit, 
 and such a gift is good if it is not tainted by parental inlluenci'. 
 Wlien the parental inlluencc is disproved, or that intlumce has 
 ceased, a gift from a child stands on the same footing as any 
 other gift." 
 
 It is conceived that the principle upon which these cases have Sumopriiuij.lo 
 been decided would apply equally to a gift or voluntary settle- !!r'!.oiunun' 
 ment made by a child under similar circumstances to or in favour ^?*.',',''""'"^ ^ 
 
 •^ tluhl to 
 
 of his mother («). moiher. 
 
 This class of cases must, however, be carefully distinguished Family re- 
 from those in which the transaction really is in the nature of a ^phelT*'"'^ 
 family arrangement, being a resettlement of property between 
 father and son. The Court always looks with favour on such 
 resettlements, and disregards the parental iniiucnct' in reference to 
 them where there is no other consideration or element in the case, 
 and, if the resettlement is reasonable and for the benefit of the 
 family, will uphold it, even if the father takes some benefit (o). 
 
 Of course this equitable doctrine of parental inlluencc has no Gift or voUm- 
 application to the case of a gift h}/ a parent to a child, or a ment by 
 voluntary settlement made hj a parent in favour of a child, ^s vi"nd as^ily 
 Such gift or settlement is as valid as if it had been from one o"*^ «/'"•■"'£" *« 
 
 o another. 
 
 stranger to another (v). 
 
 The Court has always regarded with jealousy any transaction Gift or vohm. 
 
 1 j^ 1 1 1 T *"'■}' settle- 
 
 in the nature of a gift or voluntary settlement made hy the wde nimt l.y wife 
 
 to or in favour of her husband (q) ; and such gift or settlement ^° •'""l'""''- 
 
 (l) Blacldjorn\. Edgdey, 1 P. Wms. JIartoppx. IIartopp,2\V,(ia.\.2-)<:)\ Baher 
 
 606 ; Kinchant v. Kinchant, 1 Bro. C. C. v. Bradley, 7 De G. M. & G., per Turner, 
 
 369, 374; Tendril v. Smith, 2 Atk. 8G ; L.J., 020; Fane v. Fane, L. R. 20 Eq. 
 
 Jenner v. Jenner, 2 D. F. & J. 359, 375 ; 098 ; ante, pp. 265 et scq. 
 
 and see Blunden v. Barker, 1 P. Wras. (/;) Beanland v. Bradley, 2 Sni. & 0. 
 
 639-640; A'lW/v./iTni//, 3 Jur.(N.S.) 609. 339; May v. May, 31 Beav. 81, 87; 
 
 (m) 8 De CI. M. & G. 146 ; and see Pollock, Cont. 4th ed. 569. 
 
 Mitchell V. Homfray, 8 Q. B. D. 592, (7) 8ee the remarks of Urd llanhvickc, 
 
 per Lord Selborne, L.C. L.C., in Griyshy v. Cox, 1 Ves. 217; 
 
 (h) See Evcrsloy, Dora. Rcl. 578. Atlcins v. Essex, 14 Ves. 642 ; Field 
 
 \,>) Iloyhton v. Iloyhton, 15 Beav. 278; v. Soiclc, 4 Euss. 112 ; ante, p. 488.
 
 492 WHO STAND JX CONFIDENTIAL 
 
 will 1)0 set aside on proof tliat the Inisband has oxerted any 
 improper influence over his wife to induce her to make it. 
 
 So a promissory note obtained from a wife, by the undue 
 influence of lior Inisband, as a security for his debt, cannot be 
 enforced by a creditor of his wlio takes it with notice of that 
 influence (r). 
 
 So it was held that a gift by an illiterate man to his wife of 
 all his property for her separate use could not be enforced by her, 
 because he was not proved to have well understood what he was 
 doing (s). 
 
 Such cases have been of somewhat rare occurrence ; but as by 
 virtue of the Married Women's Property Act, 1882, a married 
 woman has a separate legal existence as to property acquired by 
 her since December 31, 1882 (i), they may now more fref[uently 
 occur. 
 
 It seems probable that the Court would now hold tlie burden 
 of proof lay on the husband or person who supports such gift or 
 voluntary settlement («) ; and not, as formerly was the case, on 
 the wife or the person Mdio sought to impeach it (r). 
 
 The same principle has been applied to a gift or voluntary 
 settlement made by a woman to or in favour of the man to whom 
 she was engaged to be married (v:), or by a woman whose marriage 
 was void in favour of her supposed husband (,r). 
 
 Giftorvolun A gift or voluntary settlement made l)y a cestui que trust to 
 jnenUrom 01" ill favour of his tiiistee, wliile tliat relation exists, is voidable 
 cestui que ^^ ^.|^g option of the cestui que trust, until he has deliberately and 
 
 trust to •■- -■• 
 
 trustee. ^yitli fuU knowledge elected to abide by it. This is only another 
 
 special case of the general principle as to gifts or voluntary 
 settlements made to or in favour of persons who, at the time of 
 
 (r) SavrjuineAti v. jVessiter, I.. T. Dec. (r) Sec fh-if/sby v. Cor, 1 Vcs. 217; 
 
 12, 1885, p. 93. Nedly v. Nc(U)/, 5 D. G. & Sra. 377. 
 
 («) Price V. Pi-Ue, 1 De G. M. & f J. 308. {>'■) Patjc v. Home, 1 1 Beav. 227, 235-6 ; 
 
 (J) 45 & 40 Vict. c. 75, fs. 2, 5, 25. Corhclt v. P.rocI:, 20 Uoav. 524, S. C. 
 
 (w) Carhett v. Brocl; 20 Beav. 530, 531 ; James v. Holnm, 31 L. J. (N.S.) 
 
 S. C. 531 ; Couhon v. Alison, 2 I). F. & Ch. 5G7. 
 
 J. 524; Parfitt v. Lawless, L. R. 2 P. & (x) Coulson v. Alison, 2 D. F. & J. 
 
 D. 408 ; ante, pp. 484, 485. 521.
 
 nKLATluX TU DUNOli. VJ'.) 
 
 such yii't or vuluniary .settlement, occupy a ivnjidad'ud or J'uhi- 
 ciary position to the donor (//). 
 
 With regard to gifts made to, or vohintary .settlements njade in r.ifi or volun- 
 favour of, .solicitors ])y their client.s the Court lias alway.s taken I,St%''client 
 a very strict view. So lung as tlie relation of .solicitor ;ind client ?'"";'.'','"",'''i 
 subsists, the solicitor cannot by way of gift take a benefit from '■«'"t'o» ««'»'«• 
 his client (5). This rule of law has been held to be necessary 
 for the safety of society, and to guard the client against what 
 Lord Thurlow termed "the crushing inlhience of the .sohcitor" ('')• 
 To set aside a gift or voluntary settlement made by a client to or 
 in favour of his solicitor it is cnoufjh to shew that at the time 
 that gift or voluntary settlement was made the confidential or 
 fiduciary relation of solicitor and client existed (//). So .soon as 
 this fact is proved, the rule of the Court is that such gift or 
 voluntary settlement is absolutely invalid ; it is not open to the 
 solicitor to rebut the presumption of undue influence and to shew 
 the transaction to be a fair one. 
 
 Such gift or voluntary .settlement, however, will lie uiihcM if A\n.cn gift 
 at the time it is made the relation between the i>arties of solicitor getiVciIII'iit'^Ly 
 and client is .severed, so that they .stand as strangers to one *''','!"M" . 
 another. The severance of the relation destroys the possibility valid, 
 of suspicion that inliuence was in any degree exerted by the 
 solicitor in that character to effect the transaction (r). It does 
 not appear to be essential to the validity of such a gift f»r volun- 
 tary settlement that the relation should be for ever severed, but 
 merely that the relation should be completely severed so far at 
 least as relates to that })articular matter. 
 
 This principle is applied very strictly in tlic case of a gift to, or 
 
 (if) Hatch V. jraicJi, Ve.s. lici ; Tu. L. C. 6th ed. 628 etscq. ; Kerr, Friuul 
 
 Hunter v. Atldns, :J My. & K. 11.!; & Mis. 2nd ed. 14.'); Story, Kq. Jur. I'.'lli 
 
 Barrett v. Hartlcji, L. ll. 2 l-:.!. 7S9 ; cd. ss. .310-.3i:{ ; Pollock, Cent. 4th o<J. 
 
 Ellis \. Barker, L. R. 7 Ch. 104; King .')'m; ; but see Be Holmes' JCntaic, .'Ml iff. 
 
 V. Anderson, I. E. 8 Eq. 625 ; ante, 345, 340, commented on in Mitchell v. 
 
 p. 486. Jfumfrai/, 8 Q. 15. D. 592 ; Partltt v. 
 
 (z) Tomsoii V. Jtuhjc, .'i Drew., per JaiwIcss, L. K. 2 P. & 1). 468. 
 Kindcrsley, V.C, 314-316, and c.isus (a) Welles \. Mitllh ton, \ Cox, lU. 
 
 there cited; Hunter v. Atkins, Z My. & {h) Tonison v. Jiulije, 3 Drew. 315, 
 
 K, 113; Baker v. Boader, L. IJ. 16 Kq. 316; Morgan v. Mind, 6 Ch. D. 646. 
 49; Morr/aii v. Jlinef, 6 Ch. D. 6.38; (r) Tomxnn v. Judge, 3 Drew. 316; 
 
 notes to Jliifjuenin v. Baselei/, 2 W'h. & Morgan v. Minct, 6 Cli. D. 647, C48.
 
 494 WiiU STAND IN CONFIDENTIAL 
 
 Gift or volnn- voluntary settlement made in favour of, a guardian by liis ward 
 nienUrom "^'cry soon after that ward has attained the age of twenty-one 
 ward to years 01) ; and the principle has been extended even to cases in 
 
 guardian. "^ ^ ^ ' ^ ^ 
 
 which the ward had attained his majority many years before the 
 impeached gift or voluntary settlement w\as made (c). The Court 
 has always regarded such gifts or voluntary settlements so made 
 by a ward with great jealousy, and has based the principle as 
 well on its public utility, as a debt of humanity that one man 
 owes to another, as upon the undue advantage of the ward 
 whicli it presumes is taken by the guardian in his fidiLciary posi- 
 tion (/). 
 
 If, however, the relation of guardian and ward has determined, 
 and the accounts have been fully and fairly settled, a reasonable 
 gift by the ward to the guardian is valid {<j). 
 
 And where the existence of the relation of guardian and ward 
 was not proved, and no influence was exerted by the donee, a gift 
 by an infant aged twenty, a few 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 office and responsibilities of a guardian, 
 although he is not legally so appointed {i). 
 
 Miscclhmeotis There are a variety of other instances in which this principle 
 cas(«s in which j -^ applied, such as the cases of gifts by a nun to her 
 
 jiniuiple lias i l ' <j ./ 
 
 been aiiplitil. 
 
 [d) Pierce v. Wuriiuj, 1 P. AVms. 120; (c) Hatch v. //«<t//,0 Ves. 292 ; Wood 
 
 Ilijlton V. Ifi/lion, 2 Ves. 547 ; and see v. JJotciies, 18 Ves. 127, per Lord Eldon ; 
 
 JJaicson V. Jilasseij, 1 Ball & 15. 2 Hi ; Eversley, Uom. Kel. 782. 
 Ajjlward v. Kearney, 2 13all & 13. 403; (/) Hijltonw Hi/lton, 2 Ves. 548,549 
 
 Crai/ y. Mansfchl, 1 Yes. -619 ; Thoinbcr {,j) llijlton v. Ilylton, 2 Ves. 549; 
 
 V. hheard, 12 Beav. 589 ; Maltla»d v. Hatch v. J/atch, 9 Ves. 296 ; Taylor v. 
 
 Irvinfj, 15 Sim. 4.37; Maitland \. Bach- Johmton, 19 Ch. D. 008, 009; and sec 
 
 liouse, 16 Sim. 58 ; IthodcH v. Bate, L. ]!. The Duke of JTamUton v. Lord Mohuu, 
 
 1 Ch. 252; Eceritt v. Evcritt, L. IJ. 10 1 I'. Wnis. 118; I'iercc v. Warbifj, 1 
 
 Efj. 405; TayJor v. Johmton, 19 Cb. D. 1'. W'ni.s. 121; Wood\. JJowiies,18 Ves., 
 
 603 ; Eversley, Dom. Kel. 777 ct scq. ; per Lord Eldon, at p. 127. 
 Tollock, Cont. 4th cd. 509 et scq. ; Kerr, (h) Taylor v. Johnston, 19 Ch. I). 003. 
 
 Fraud & Mis. 2nd cd. 153 ; Simpson, (/) (hmond v. Fit~roy, 3 P. Wms. 
 
 Infants, 431 et scq. ; Story, Eq. Jur. 13th 129 ; (-n'jHn v. Be Vcuille, 3 P. AVms. 
 
 cd. s^. 317 ct seq. l^^l. "• ; Hylton v. Hylton, 2 Ves. 547.
 
 \ 
 
 UKLATIOX To Do.NOU. Hi J 
 
 convent (/), liy ;i patient tn lii.s doctor (/), liy ;i penitent to lier 
 confessor (m), by any person luuler the inlluence of a spiritual 
 ascendancy in favour of tlie possessor of that ascendancy, whether 
 such possessor be a rehition, 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 delusions, in favour of the jierson who has 
 worked upon those fancies and delusions (q), as by pretending to 
 be a medium, and enabling a lady to hold converse witli the spirit 
 of her deceased husband (r). 
 
 Of course every case in wliicli a person has taken upon himself 
 to assume and exercise the functions which Ijclong to a position of 
 a confidential or fiduciary character is within this principle (s). 
 
 There is one limitation, however, to the application of this Triflins pift 
 general prniciple. A mere trilhng gift to a person who stands m c,„„!,i,„iiai 
 a confidential or fiduciary relation, or a mere trilling lial)ility ['"J^j" 
 incurred in his favour, will be upheld 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 inlluence (0- 
 
 It must be observed that neither the age nor the capacity of Tliis i.rii.tii.Iu 
 the person conferring the benefit, nor the nature of the benefit Jj^lJ^.,',',',',,,,.,^.^ 
 conferred, affect the application of this general principle, ^f^'^i 5onoT''r «i/ 
 and capacity are considerations which may be of great importance nature of girt, 
 in cases where there is no confidential or fiduciary relation ; but 
 they are of little, if of any, importance in cases to which this 
 principle applies. And as to the nature of the benefit, the injury 
 
 (/,) Whjte V. Meade, 2 Tr. Eq. 420 ; {p) Norton v. Belhi, 2 KJ. 28G ; 
 
 MCarthij v. M'CartJn/. 9 Ii\ Eq. iVH), Jlufiucniii v. JJaselei/, 14 Ves. 273, 2 
 
 S. C. 1 H. L, C. 703 ; lie Metcalfe's Wli. & Tu. L. C. 6th ed. 597 ; Nottidgc 
 
 Trusts, 2 D. J. & S. 122. v. rrince, 2 Giff. 246. 
 
 (/) Hunter \. Atlcins, 3 ^ly. & K. 113, (7) Xottuh/e v. Prince, 2 UifT. 240; 
 
 (it supra; Dent v. Bennett, 7 Sim. 53P, Kirwan v. Calleu, 4 Ir. Cb. Rep. 322. 
 S. C. 4 :\Iy. & Cr. 2G9 ; Gibson v. HimseU, (/•) Lijon v. Home, L. I!. 6 Eq. O.V). 
 
 2 Y. & C. C. C. 104 ; Pratt v. Barlcr, 1 (•>•) 1 Bac. Abr. 137, n. ; 3 ibid. 780 ; 
 
 Sim. 7, S. C. 4 Kuss. 507; BiUa<jc v. JIanter v. Atkins, 3 My. & K. 113; 
 
 Southhee, 9 Hare, 534, 540; Mitchell v. Broun v. Kcnncdij, 33 r.cnv. 133, S. C. 
 
 Homfraii, 8 Q. B. D. 587. 4 D. J. & S. 217; Tate v. WHliamion, 
 
 {m) Parfitty. Lawless, L. V..2V. & D. 1- 1!. 1 Eq. 528, S. C. L. W. 2 ("li. 55; 
 
 per Lord Penzance, 468. Midkan>j v. U'dlon, 1 Ball cSc B. 4(»y ; 
 
 (») Sharp V. Leach, 31 Beav. 491 ; Parfitt v. Lawkss, h. U. 2 P. & D. 462. 
 and see Siurrje v. Sturrje, 12 Beav. 229; (0 Bhudcs v. Bate, L. K. 1 Cb., per 
 
 Sercomhe v. Sanders, 34 Beav. 382. Turner, L.J., 258 ; and sco Pollock, Cont. 
 
 {0) Huri-eij V. Mount, 8 Beav, 439. 4tb ed. 590.
 
 49G 
 
 MAKKS OF UNDUE INFLUENCE. 
 
 AVhat iinJiio 
 influence 
 consists in. 
 
 done to the person l)y whom the benefit is conferred cannot depend 
 upon its nature (u). 
 
 As to what amounts to undue influence and fraud, it is evident 
 that no general rule can be laid down. This is a question for the 
 judge to decide upon the circumstances of each particular case (r). 
 
 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 (/''), 
 the improvidence of the transaction (./•), the age of the donor, 
 whether very young or old, or in inflrm health (y), the amount of 
 the gift, and its proportion to the total amount of the donor's 
 property (:), the statement of a flctitious 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 {h), the fact that the eflect of the gift or voluntary settle- 
 ment was not really understood by the donor (r), and the fact tliat 
 
 (m) Ehocles V. JBate, L. l\. 1 CIi. 257, 
 per Turner, L.J. 258. 
 
 (v) Kerr, Fraud & 3Iis. 2nd eJ. Iu9- 
 162. 
 
 (ic) Griffiths V. Jiuhins, 3 INIad. 191 ; 
 Dent V. Bennett, 4 My. & Cr. 2Gy, 273 ; 
 Harvey v. Mount, 8 Beav. 439 ; l\igc v. 
 Home, 11 Beav. 227 ; Sturcje v. >Sttiri/e, 
 12 Beav. 229, 239 ; Thornhcr v. Sheard, 
 12 Beav. 589 ; Cooke v. jAimotte, 15 Beav. 
 243 ; Gibson v. llussell, 2 Y. & C. C. C. 
 204; tSharp v. Leach, 31 Beav. 491; 
 Bhodes V. Bute, L. Iv. 1 Ch. 252 ; Arm- 
 stronfj V. Armstrong, Ir. 11. 8 Fq. 1; 
 King V. Anderson, Ir. E. 8 Eq. 625; 
 Turner v. Collins, L. B. 7 Ch. 329; 
 Moxon V. Fugne, L. 1!. 8 Ch. 881; 
 Kemj^son v. Ashbee,Ij. 11. 10 Ch. 15; 
 Bainbrigge v. Browne, 18 Ch. D. 188. 
 
 (x) Bridgman v. Green, "NVilni. 58, 
 62, S. C. 2 Yes. 626; Brideaux v. 
 Lonsdale, 1 D. J. & S. 433 ; Harreg v. 
 Mount, 8 Beav. 439; t^harp v. Leach, 
 31 Beav. 491; Mara v. Bug, W. N. 
 (1872) 127 ; Coutts v. Acworth, L. II. 
 8 Eq. 558 ; WoUaston v. Tribe, L. 11. 9 
 Eq. 44; LJvcritt v. Kccritt, L. R. 10 K(i. 
 405; Armstrong v. Armstrong, Ir. \\. s 
 Eq. 1 ; Turner v, Collins, L. B. 7 Ch. 
 329 ; and sec Beatson v. Beutson, 12 
 bim. 281 ; Bage v. Home, 11 Beav. 227. 
 
 (//) Griffiths V. Bobins, 3 Mad. 191 ; 
 Wright V. Broud, 13 Ves. 136 ; Anderson 
 v. Elsworth, 3 Giff. 154 ; Bridcau.v v. 
 Lonsdale, 1 U. J. & S. 433 ; Eceritt v. 
 Eccritt, L. K. 10 Eq. 405 ; Ivempson v. 
 Ashbee, L. R. 10 Ch. 15; Bainbrigge v. 
 Browne, 18 Ch. 1). 188, ante, pp. 488, 
 489 ; Gibson v. Busscll, 2 Y. & C. C. C. 
 204. 
 
 (s) Bridgman v. Green, "Wilm. 58, 
 S. C. 2 Ves. 626 ; Jihodes v. i>«<f, L. li. 
 
 1 Ch. 258 ; but see ante, p. 461. 
 
 («) Bridgman v. Green, Wiini. 58, 
 S. C. 2 Ves. 626 ; Gibson v. Bnsscll, 
 
 2 Y'. & C. C. C.204; 11 //se v. Lambert, 
 16 Ir. Ch. Rep. 378 ; AS'Afoy v. Leach, 31 
 Beav. 491 ; Hughes v. iScanor, 18 W. R. 
 108, 1122 ; and see ante, p. 267. 
 
 {b) Young v. Beachg, 2 Alk. 254. 
 
 (c) Huguenin v. Baseleg, 14 Ves. 300; 
 C'oo/.e V. Lumotte, 15 Beav. 243 ; BiUage 
 V. Southee, 9 Hare, 534; Price v. iVitr, 
 1 Ue G. M. & G. 308; Anderson v. 
 Elsworth, 3 Giff. 154; tSturge v. iSlurge, 
 12 Beav. 229; iyoH v. Home, L. R. 
 6 Eq. 655; Cou^/.s v. Acworth, L. J!. 
 
 8 Eq. 558; WoUaslun v. J/v'6c, li. R. 
 
 9 Eq. 44 ; Kempson v. Ashbee, 1j. 15. 
 
 10 Ch. 15; Bainbrigge v. Browne, 8 
 Ch. D. 188.
 
 rXDri; INFLUENCE AS To WI1,LS. 4'.»7 
 
 there is no power of revocation in the deed, lunl tliat lliis omission 
 has not been brouglit to tlie notice of the donor (d). 
 
 In cases where a c»infidciili;il (.r ti(hi(iarv ruhitiiin existed IfiiconfiJen- 
 
 between the parties at tlie time {\\v. .^ift m- vohiiitary settlement exihUjm"" 
 
 was made, the Court always pays especial regard to the question P|'/^';'")J„|'J'* 
 
 how the intention of the donor was produced ; and considers K'^<^ j" P^o- 
 
 . JuccJ. 
 
 whether the circumstances shew that all that care and providence 
 
 was placed round the donor, as against those who advised him, 
 
 which, from their situation and relation with respect to him, they 
 
 were bound to exert on his behalf (r). 
 
 The influence which is undue in the case of a "ift or V(jliintarv I'liduc in- 
 settlement made inter vivos is very ditlereut from that which is -willH. 
 re(|uired to set aside; a Mill (/). 
 
 The undue influence which is adef|ual(! to set aside a will nnist 
 bo such a pressure as to ovt-rpower the volition without con- 
 vincing the judgment ; so that the testator's will, or the part of it 
 impeached, is not the record of the testator's volition, but of some 
 other person ((/). To render intluence legally undue there must 
 be coercion (//). 
 
 The natural influence of persons who hold a confidential or 
 fiduciary position in regard to the testator may lawfully l)e exerted 
 to obtain a will or legacy, so long as the testator thoroughly 
 understands what he is doing and is a free agent (/). 
 
 Undue influence in the case of a will is never presumed what- r.unlcn of 
 
 , , ,. proof f;fii<riillv 
 
 ever may be the position of tlie person wlio receives the l>enent. on iktsou 
 In general, the burden of proof of undue influence lies on the "nfl'uence!'"'^"" 
 person who alleges it (/.:), but to this rule there is one exception. 
 
 (tZ) Post, pp. 490 ct seq. iff) ''^I'l!- v. *Sc7/fe;//e, Itj Jiir. DdO; 
 
 (e) Per Lord Eldon in Jhujncnln v. HM v. Hall, L. \\. 1 V. & D. 481 ; 
 
 Baseley, 14 Vcs. 3U0 ; Armstroiuj v. Farfitt v. Lmrless, L. W. 2 P. & D. 462, 
 
 Armstrovij, Ir. K. 8 Eq. 134; Turner v. 47(1; and see JJoi/sc v. Jlonsboroinjh, 
 
 ColUns, L.K 7 Ch. 529, 3'Sd; Jia!iihrif/ge H. L. C. 48,40; Williams v. Ouiulc, 1 
 
 V. Browne, 18 Ch. D. 188 ; Toi/lor v. Hagg. E. 581. 
 
 Johnston, lU Cli. D. (iOS-GUD ; ante, (//) W!ii;/rorc v. Wiiir/rorr, II P. I>. 
 
 p. 483. 81. 
 
 (/) HhuJsony. Wadherin,o Ue C. .M. (i) Parjitt v. Laivlm, L. K. 2 P. & D. 
 
 & (x. 301, 311, 313 ; Bairorth v. Murrintt, 400, 470. 
 
 1 3Iy. & K. (143 ; rurjitt v. JauvIchs, L. 1\. (/) Jioiisc v. llosshnroiiijh, (', H. L. C, 
 
 2 P. & V>. 462 ; but see Wulkvr v. fSmith, per J.ord (Jranwortli, 4l» ; ParjUt v. Lmc, 
 SO Ucav. 304. kss, L. K. 2 P. c<; D. 47<'.
 
 498 UNDUE INFLUENCE A^ TO WILLS. 
 
 A person who takes a benefit under a will wliicli he has been in- 
 strimicntal in preparing or obtaining has thrown on him the onus 
 of shewing the righteousness of the transaction (I). 
 
 What nnist It must also be proved that the will ov legacy was obtained by 
 
 be proved. mgaus 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 will may be set aside, wholly or in part only, on the gi'ound 
 innlk°'^ of undue influence or fraud (->). The grant of probate, not re- 
 called, is conclusive proof that the will is the true will of the 
 testator, and after such grant the will cannot be set aside on the 
 ground of fraud or undue influence. 
 Exclusive The Probate Division of the High Court of Justice has ex- 
 
 of Probate'^ clusivc jurisdiction on the question whether a will or any part of 
 Division. it vvas obtained by fraud or undue influence (2^) ; and such question 
 shoidd be raised when probate is applied for. 
 
 Itulesasto It is coRCeived that the foregoing principles api)ly to cases 
 
 undue in- ^yherc tlic will or legacy has been obtained either by fraud or liy 
 
 tiuence and o j m ^ 
 
 fraud whether undue influence. Traud may or may not be a species of undue 
 
 the same. 
 
 influence. Undue influence to invalidate a will means coercion, 
 
 but fraud includes misrepresentation, which may consist as well in 
 
 a mere concealment as in a positive misrepresentation of fact (q). 
 
 Power of The view the Court takes of the question, whether a voluntary 
 
 revocation. settlement is voidable if it does not contain a power of revocation, 
 
 is different according as the settlement is impeached by persons 
 
 wlio claim adccrschj to the settlor, or is impeached by the settlor 
 
 or persons who claim under him (r). 
 
 (0 Agliwdl V. Lomi, L. 1{. 2 P. & D. S. C. 7 L. E. Ir. 18 ; Allen v. JI'Fherson, 
 
 477 ; Fulton v, Andreics, L. K. 7 H. L., 1 H. L. C. 19L 
 
 per Lord Hatherley, 472; //<Yya?-/</v. 7u«<7, Q>) Allen v. Jl'Pherson, 1 H. L. C. 
 
 5 L. Pv. Ir. 249, S. C. 7 L. R. Ir. 18. 191 ; 2IJelu!sJi v. Jlilton, 3 Cli. D. 37 ; 
 
 (m) Jones v. Godrich, 5 Moo. P. C. 40; and sec Theobald, Wills, 3rd cd. 05 ; .lud. 
 
 rarjitl. V. Lawless, L. 11. 2 P. & D. 462 ; Act, 1873, s. 34. 
 
 Wimjrovc v. WhKjrocc, 11 P. D. at p. 83. (7) Sec Parjitt v. Lawless, !>. P. 2 P. 
 
 («) Boysc V. Jiossborotiijh, II. L. ('. & D. 470, 471 ; Boijse v. JlosshoroiKjh, (i 
 
 51; Lon(jford\. I'urdun, 1 L. I!. Ir. 81; H. L. C. 48, 49; Meluish v. Milton, 3 
 
 and see Kerr, Fraud & Mis. 2nd cd. 297 Ch. D. 27. 
 
 et seq. ('') J-^ntlon v. 2hom2yson,2^^Ch.D.,liCl• 
 {o) Ilefjart// v. Kuifj, 5 L. 11. Ir. 249, Cotton, L..T., 283.
 
 POWERS OF IM:V()<A'I'|(>.\. -lUU 
 
 If it lie impeaclied by a crcilitf.r {s), or a i.milia.scr (0, wlm ..f wi.cn Mttlc 
 course claim adver.sely to Uie seltlc.r, the L'.mrL con.sitler.s wUviUn- Z!au7\,v 
 the provisions in llio vuluntary settlement are vroDer, havin" ^■'"''""r^'"''"- 
 
 . . II' '^ iiig (idnrichj 
 
 regard to the position of the settlor ; and iVuni this ]M.iiii ,,t' vit-w lu »«ttlor 
 the Court considers a power of revocation in sucli a settlement as 
 a great mark of fraud against third perstms (//). 
 
 It was formerly held thai the inerc al)sence of a power of by BottW ..r 
 
 lUg 1 
 
 revocation in a voluntary settlement was almost an adeipiate C'll^Ucr 'E.' 
 
 ground of itself for setting that settlement aside as against the 
 settlor or persons who claim under him, as procured l»y fraud or 
 undue inlluence, of which the absence of this i)Ower was regarded 
 as an almost certain sign. So Lord Hardwicke said : " No jwwei- of 
 revocation being reserved in a voluntary conveyance hatli 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 sufli- 
 cient for the purpose " (?,;). 
 
 In Toher v. Tohcr (vj), however, a voluniary settlement without Tol.crv. 
 power of revocation, executed liy an aunt in favour of her nejihew, 
 and impeaclied by her as procured by the undue inlluence of her 
 nephew, was upheld on the ground that it was intended to be 
 irrevocable. Lord Justice Turner there laid down tlie ]irinciple 
 that the absence of a power of revocation was a cireumslance tu 
 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. 
 
 This principle was followed in rkillips v. MuUiuf/s (./■), where a p/,iii,ps v, 
 young man of improvident habits, and only twenty-two years of " " "'^'' 
 age, was induced to make a voluntary settlement wiihout ])owerof 
 revocation of a part of his money, which he afterwards impeached 
 
 («) Ante, pp. 76, 111. Jivcritl, L. 1!. 10 Kq. 405; MounlJ'urd v. 
 
 (0 Ante, pp. 200 ct sc(i. Keenc, 19 W. R. 708 ; llcnslmU v. Fcrc- 
 
 (h) Didtoii V. Thomjisoii, 2?, Cli. D. da;/, 21 \V. 11.2-10 \ J foran \. .Uaninilm:, 
 278. 15 L. IJ. Ir. 471 ; anil sec XaiiiKi/y. U'il- 
 
 (y) Philips V. rhillpts, Coxc, MSS. Hams, 22 Beav. 452 ; Furi<haw v. WiUlii, 
 B. 13. 18; -And sec Jlutjucniuv. Uasclc!/, 30 Beav. 243 ; Anderson v. JJUirorlli, 
 14 Vcs. 296 ; T/wnililll v. Evans, 332, as 3 Ciiff. 154 ; ^Sharp v. J^ac/i, 10 W. U. 
 stated in the Index, tit. Fraud; Contts 878; Dav. Tree. .3rded. vol. 3, 6% ct seq.; 
 V. Aarurth, L. K. 8 Eq. 558; WoUastoii Kerr, Fraud & Jlis. 2nd cd. 1.5K-1C2. 
 V. Trlhe, L. E. 9 Eq. 44; £vcriU v. (n-) 31 Beav. 029, fcf.C. 3D. J.&b.4S7. 
 
 (.v) L. B. 7 Ch. 244. 
 
 K K 2
 
 500 POWERS UF EEVUCATIUX. 
 
 on tlie ground that he did not understand its nature. The 
 settlement was uphekl, a ])o\ver of revocation in the circumstances 
 being useless. Lord Hatherley, L.C., pointed out that whether 
 there sliould 1)e a power of revocation or not must depend upon 
 the cu'cumstances ; and tliat it could not be laid down as a 
 general rule that such a deed would bo voidable unless it contained 
 a power of revocation. 
 
 Hull V. Hall. The authorities on tliis point were carefully reviewed, and 
 Tolccr V. Tol-cr {ij) followed, liy James, L.J., in the case of Hall \. 
 Hall {z), where liis Lordship said : " The true rule is that which 
 was laid down by Lord Justice Turner in Tokcr v. Tolccr (a), that 
 the absence of a power of revocation is a circumstance to be taken 
 into account, and is of more or less weiglit according to the other 
 circumstances of each case " (h). 
 
 This view has been also recently followed with ai)pro\al by the 
 Court of Appeal in Ireland in Arinstrong v. Armstrong/ (c). 
 
 Was the The Court considers in each particular case whether the 
 
 tlemeni'thr " Voluntary settlement was the free determined act of the settlor, 
 "ul''r'°^ anil, if upon the evidence sucli appears to liave been the case, 
 the (Jourt will uphold the settlement and not enter into the ques- 
 tion whether it contains provisions which were not proper to be 
 inserted in such a settlement. 
 
 It is not the province of a Court of justice, said Jessel, M.ll., 
 in Button v. Thompson (d), to decide on what terms or conditions 
 a man of competent understanding may choose to dispose of his 
 property. If he thoroughly understands what he is about, it is 
 not the duty of a Court of justice to set aside a settlement which 
 he chooses to execute, on the ground that it contains clauses which 
 are not proper. 
 
 The question, therefore, in each case is, did the settlor really 
 understand the elTect of the voluntary settlement he executed ? 
 
 (.//) 3 D. .J. & S. 487. (b) L. E. S Cb. 4.']8 ; Henrij v. Anu- 
 
 (z) L. K. 8 Ch. 430. ulrum/, 18 Cli. D. 008. 
 
 (a) 3 D. J. & f<. 487, 4'Jl. {c) Ir. ]!. S Iv,. ], 4.j. 
 
 {fl) 23 Ch. D. 281 ; but sec I'/dlUps v. MalUiujs, 1.. i;, 7 Ch. al p. -lis.
 
 iuo in- 
 llucnco. 
 
 POWERS (»F HKVOCATIO.N. 501 
 
 Tt i,s from tliis ]i(iiiit of view only Llml tl»o omission of the Alwncoof 
 ]M)\vcr of ivvocaiioii liecoincs mnterial, mul may ho a reason for iSTJ""!!' 
 Rcttiiio- sucliscttlciiunn aside. It man be cvick'ncc that the settlor S^^J 
 did not really uuderstaud wliat he v/as doing, and so of undue in- 
 fluence ((■); hut whellier it would Le so or not would of course 
 depend ujiou all the circumstances of the ciise. Si. it would bo 
 material if it was proved that ihe settlor did not intend an irrevo- 
 cable settlement, that the settlement was not intended in the event 
 which actually happened (/), or if the settlement itself were such, 
 or made under sucli circumstances, as to l)e unreasonable and 
 improvident, ajjart finm any (juestion f)f undue iulluence (.y). 
 
 So a voluntaiy settlement without a ].o\ver of revocation has VolunUry 
 been upheld against the settlor, although the solicitor who l>re- Sli''wiir.I.M7' 
 pared the deed never called the attention of the settlor to the fact pow*-'"" 'i'" 
 
 . . revocation. 
 
 of its omission, or advised its insertion (h). So an irrevocable 
 voluntary settlement made by a man of almost all his property 
 when about to engage in liusiiiess on the Stock Exchange was 
 upheld against him, Ijeeause the object of that deed was to 
 protect his wife and children, and the insertion of the jiowcr >>[ 
 revocation would have been inconsislent M-ilh this (/). 
 
 So where it is proved that the settlor intemli'd to make an 
 irrevocable voluntary settlement, the absence of a power of I'cvoca- 
 tion is immaterial (/.) ; as where the object of the settlement was 
 to protect the settlor against the importunity of his relations (/), 
 or to prevent property from devolving on i)articular people {in), 
 or to])r(»tect the settlor, who had only just attained his majoritv, 
 against liis own extravagant and improvident habits {n). 
 
 Where a testator had executed a voluntary declaration of trust 
 l)y which he had given his wife a pow^r of ap]iointment, and had 
 
 (<?) Tolcv V. Toher, 3 D. J. & S. 41)1 ; (/) Jfcunj v. Annslrony, IS Cli. D. 
 
 Button V. Tliompson, 23 Cli. I)., per CG8. 
 
 .Tessel, M.IT., 281 ; and sec Mara v. licui, (/•) //«« v. IlaU, L. R. 8 Ch. 437, 438, 
 
 W n' C187') Vl ^'^^ ' Arimtiwiff v. Anustron;/, Ir. IJcp. 
 
 (f) Xannei/ v. Williamn, 22 Iteav- 8 Eq. 1. 
 
 452 ; ForsJunr v. Welb>/, m Beav. 243. (0 J''-octcr v. (inf,;/, 21 W . I!. 2»... n. 
 
 (r/) IfaU X. Hall, L. K. 8 Cli., per ('") ^^O'Uj v. Doncjan, 21 W. i;. 
 
 Lord Selborne, L.C., 440. 880. _ 
 
 (//) Tol-er V. Tolcer, 3 D. J. & S. 487, (") Philips v. Mnlluign, L. h. 7 Cli. 
 
 492 : Hall v. Hall, L. R. S Hi. 430: and 244, 248; Bdl v. Thowpson, W. N. 
 
 see Iloran v. Macmahon, 10 I., l!. Iv. 471. (1878) 121.
 
 502 
 
 WHO CAN SET ASIDE 
 
 Probate duty 
 when payable. 
 
 Effect of 
 undue in- 
 fluence or 
 fraud on 
 nianiage 
 settlements. 
 
 Who can set 
 aside voidable 
 deed. 
 
 kept it imder liis control, and at his death tlie deed could not l>e 
 found, the Coiut would not infer that the lost deed contained a 
 power of revocation (o). 
 
 It may be mentioned that by tlie Customs and Inland Revenue 
 Act, 1881 O), if a life interest, or an absolute power of revocation, 
 is reserved to a settlor who dies on or after June 1, 1881, in a 
 settlement of personal estate, such personal estate will be liable 
 to probate duty. 
 
 A marriage settlement will not be set aside on the ground of 
 undue influence or fraud as against a party innocent of that undue 
 influence or fi-aud (q). 
 
 The general rule, that a gift or voluntary settlement obtained by 
 undue influence or fraud is voidable at the option of the donor, 
 applies, however, to all the limitations in a marriage settlement 
 which are voluntary (r). The volunteer stands in the same 
 position as if he took under an instrument wliich contained no 
 limitation for value. 
 
 The right to set aside a deed voidable on the ground of undue 
 influence or any of the other causes noticed above may be 
 exercised by the donor's executor (s), by his devisee (t), by his 
 heir (u), by his residuary legatee (v), or by his trustee in bank- 
 ruptcy {ic). 
 
 The representatives of a donor cannot after his death set aside 
 a gift or voluntary settlement made by liim which if he had lived 
 he himself would not have set aside (a) ; but of course if the 
 donor has complained of the transaction, and has in his lifetime 
 started proceedings to annul it, his representatives will be treated 
 as standing exactly in his place, and such deed may be set aside 
 even as against the representatives of the donee (i/). 
 
 (o) In re Booher, 34 W. K. 346. 
 
 (>) 44 Vict. c. 12, 8. 38 (2) C. 
 
 {q) Barrow v. Barrow, 2 Dick. 504 ; 
 Kevan v. Crawford, G Ch. D. 29 ; ante, 
 p. 91. 
 
 (r) WdlaHton v. Trlhc, ].. K. 9 Eq. 
 44; Maunxell v. Maunxill, 1 L. P.. Ir. 
 529, 539; ante, pp. 342, 358. 
 
 («) Hunter v. Athins, 3 My. & K. 113; 
 21cmiitford v. Keene, 19 W. Pi. 708. 
 
 (t) Gresley v. Mousley, 4 De G. & J. 78. 
 
 (u) Holman v. Lynes, 4 De G. M. & G. 
 270; Anderson X. JiJlsirortli, 3 Giff. 154. 
 
 (u) Long v. Donegan, 21 AV. R. 830; 
 Coutts V. Acworth, L. R. 8 Eq. 558. 
 
 (»•) Ford V. Olden, L. K. 3 Eq. 4G1. 
 
 (./•) Mluhell V. Homfray, 8 Q. B. D. 
 591, per Lord Selbonie, L.C. ; and see 
 Wright V. Vunderplant,^ De G. M. & 
 G. 133. 
 
 (//) PhilUpson V. Kerry, 32 Ccav. G23, 
 S. C. G37.
 
 VOIDABLl!: DEED, AM) WHEN. bV'3 
 
 It seoms, liowcvcr, tliai tlic CoiuL will not soL asiilf a ilci-il Thinl person 
 whitli is voidablo on any dC these t-vouncls at the instance of any '''""'"*■ 
 
 fliin/ jxTson will, sets up such ground (:). 
 
 This pvincipU', that a ,i;il"t or voluntary settlement made to or Principle 
 in favour of a person who occuiaes a confidential or lidu.iary T"'""*"?''/''^ 
 position in relation to the donor is voidable at the oi.tion of ( hat ^'"' ■■'■'"''"" 
 
 T P 1 i« over. 
 
 donor, ot course does not apply if, at the time the gift or volun- 
 tary settlement is made, that relation has cniirchj ceased, and the 
 
 donor is no longer subject to its influence {a). 
 
 The diiliculty is in such cases lliat altliou.uh the relniion may 
 have actually ceased, yet, as the person who once stood in that 
 relation to the donor still retains the knowledg^e he so acquired, 
 he does not by merely giving up his ofhce at once divest himself 
 of his confidential or fiduciary character {h). 
 
 When a relation of confidence is once established, ciiher some wiiat is proof 
 positive act or some complete case of abandonment nnist be shewn iJlf cci'se'j" 
 in order to determine it. The mere fact that the relation is not 
 called into action is not suflicient of itself to determine it, for 
 this may well have arisen from there having been no occasion to 
 resort to it (r^). 
 
 It does not appear to have been decided whether, if the conii- ^^\^■^^i relation 
 dential or fiduciary relation has merely ceased in relation to the resp,!ctV"r"" 
 
 particular uift or voluntary settlement, the gift or voluntary "merely u< 
 ^ . '' " fiac re ? 
 
 settlement will be upheld, or whether it must have ceased in all 
 respects (d). 
 
 The Court will not allow third persons, who claim as Nolunteers, Third pcreons 
 to take any benefit under a gift or voluntary settlement declared bcn.-iit umK-r 
 void between llio i)aitics to it on the ground of fraud or "i-'hie f^j^'^.^J'^.,"^,'^""' 
 
 nicnt void 
 
 (s) Poll. Cent. 4th ed. 594; and see (i) See Car(er v. raliner, S CI. & F. bctwceu tlio 
 
 1)1 re Metcalfe's Trusts, 2 D. J. & S. 657, 705; Be Boltnes' J'Jstatf, 3 CJiir. Parties. 
 122 ; Larrett v. Bank ofEiujland, W. N. 345, 340. 
 (1886) 47. (c) Mocks v. JJate, L. U. 1 Ch. 259, 
 
 (a) Huguenm v. Baseleij, 14 Ves. 273, 260 ; and see MitvhcU v. J/om/ray, S 
 299 ; likhards v. French, 22 L. T. (N.S.) Q. B. D. 587. 
 
 329; Tatex. W'dlicumon,!,. Yx. 2 (SW. bb, {d) Toimon v. JinUje, 3 Drew. 316; 
 
 65 ; Mitchell v. Homfray, 8 Q. 13. D. Modes v. Bate, L. R. 1 I :b. 259, 260 ; 
 587; Kerr, Fraud & Mis. 2iid ed. 330, ante, p. 493. 
 ante pp. 484, 488.
 
 504 WHO CAN SET AHlDll 
 
 iuUuence, although such third persons \Yere in no way pnrtios to 
 the fraud or undue influence (c). 
 
 So a person taking a lease granted by the lessor to his agent 
 with notice of the existing relation has the same 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 relation 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 ((/). 
 
 Against whom Where the donee stands in a confidential or fiduciary relation 
 of undllrir'' to the donor, the inference of undue influence operates against 
 fluence ^|^g persou who is able to exercise that influence, and also against 
 
 operate ? -c ...''. 
 
 every person who claims under him witli notice of the equity 
 
 thereby created, or with notice of the circumstances from wliicli 
 
 the Court infers the equity (h). 
 
 This inference of undue influence does not, however, operate 
 
 against any other person. So it would not operate against a 
 
 person who is not shewn to have taken with notice of the cireum- 
 
 • stances under which the gift or voluntary settlement was made (i). 
 
 So a payment to a creditor of the father voluntarily made by 
 his dau<Thter six months after she came of age, to whom knowledge 
 of undue influence exercised by the father on his daugliter could 
 not be imputed, was upheld (/.•). 
 
 A person who is a bona fide purchaser in tlie first instance for 
 
 (e) Bruhjman v. Green, Wilm. 58, Beav. COS ; Serconibe v. tSandem, 34 
 
 64-5, S. C. 2 Ves. 626; Hufjuenhi Beav. 382; and see ArcUjlasse v. Mus- 
 
 V. Baseley, 14 Ves. 273 ; Scholefield v. cJiainj}, 1 Vern. 237 ; liolfe v. Gregory, 
 
 Templer, Joh. 155; ASmith v. Kai/, 7 34 L. J. (N.S.)Ch. 274; ]Vi/.ie v . Lambert , 
 
 H. L. C. 750; Modes v. Bate, L. 11. 1 10 Ir. Cli. Rep. 378 ; Kcnipson v. Atthhee, 
 
 Ch. 258. L. R. 10 CIi. 15. 
 
 (/) Molonu V. Kcrnan, 2 D. & War. (A) Bainh-igfje v. Broinie, 18 Ch. D., 
 
 31 40-41. per Fry, J., 197; and nee Kempson v. 
 
 \f/) Bhoden V. Cool:, 2 Sim. & St. 488; Aslihee, L. R. 10 Cli. 21. 
 
 3Iaitland \. Irviiuj, 15 Sim. 437 ; Mmt- (i) Bainl/n't/ge v. Broirne, 18 Ch. I)., 
 
 land V. Backhouse, 16 Sim. .58, S. C. 03 ; per Fry, J., 197. 
 
 Archer v. Hudson, 7 Beav. 551 ; Bid.er {k) Thornier v. Sheard, 12 Beav. .'iSO ; 
 
 V. Bradley, 2 Sm. & (iiff. 531, S. C, and see Corhetl v. Brock, 20 Beav. 524, 
 
 7 De C. M. & G. 507 ; Espey v. Lake, S. C. 531 ; Bcntley v. Mackay, 31 Beav. 
 
 10 Hare, 200; Jkrdoe v. Dnv-son, 34 14:i, S. C. 4 D. F. & .F. 270.
 
 VOIDABLH DKKD, AM. WIIKX. 505 
 
 valuable coiisi.Icmiiun wiihouL notice, if tlie (•(HisidtTatiuii be not 
 a debt already »hie, is protocted (/) ; and sd of course is a boiul 
 lide luircliaser for vabie without notice from ilic donee (m). 
 
 It api)ear.s doulilful wbetber a gift or vohuilary sctlleineut ran 
 be set aside, on the ui'ound of undue inthicuce, if tbc iulhu.'iicc lias 
 beeu exercised, /luf by tbe person \vho olitains tbe beiielit, l)Ul by 
 a third person who derives no benefit whatever (/;). 
 
 lu the application of the foregoing i>rinciplcs iheri; is no dis- 
 tinction l)et\veen the ease of a person mIio himself exercises a 
 direct undue influence, and of a person who makes himself a party 
 with the person wlio exercises tliat undue iutluence (o). 
 
 A gift or voluntary settlement originally voidable on the (Jiftor volnn- 
 ground of undue influence or any of the oilier causes noticed mStT.ow 
 above (i>), may hv confirmed and rendered unimpeachable by the *•■""''""''''■ 
 
 donor in either of two ways. 
 
 1. The donor may confirm the transaction by his subseijuenl 
 acts, whether inter vivos, or by his will. 
 
 In Crouic v. Ballard {q) Lord Thurlow said : " If a gentle- By act inter 
 man 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, knowing that a bond is bad, will give a 
 new bond, that will maintain the possession of the right of the 
 holder of the bond, and this act shall be said to be a confirmation ; 
 hut nut any ad, done under the injlicoicc of the former transaction, 
 and the ojnnion that the hand is (jood." 
 
 In Muxon v. Payne (r), James, L.J., laid down the principles 
 by which the question of conhrmation of any voidable trans- 
 action was examined by the Court, To uphold such transaction 
 
 (/) Blaclde v. Clarl; 15 Beav. 595, Espoj v. JaiIc, 10 Hai-o, 2tJ0: ll>c v. 
 
 GOl ; and see Bainhr'Kjcje v. Browne, 18 Lambert, IG Ir. Cli. 379 ; and see Kemp- 
 
 Ch. D. 199. son v. Aslihee, L. II. 10 (Jii. 15. 
 
 (m) Greenalade v. Bare, 20 Beav. 284; (/>) Cann v. Canii, 1 P. Wms. 72.3, 
 
 Corbett v. Brad', 20 Beav. 524, 5:50, 727 ; Cole v. Gibson, 1 Vf. 'to:i, Ml : 
 
 S. C. 531. ^Sttimj) V, Gab;/, 2 De Ci. M. & (J. 023; 
 
 (ii) Wi/cheriei/ v. Wi/cherleij, 2 Eden, .Jarratt v. Aklam, L. U. 9 Ivj. 4(53; Shh- 
 
 175; Jlenllci/ v. Maclean, 31 Beav. 143, deman v. Mackenzie, 1 J. & II. 013; 
 
 !S. C. 4 1). F. & .1. 279. ante, p. 490. 
 
 (o) Ardglasse v. Bill, 1 Vcrn. 2.38; (7) 3 Bro. C. C. 117. 
 
 ^rj L. 11. 8 (Jl). 881, 885.
 
 50f3 VOIDABLE DEED, 
 
 there must be full knowledge of all the facts, full knowledge of 
 the equitable rights arising out of those facts, and an ahsolufc release 
 from the undue influence hy mecms of ichich the frauds were ijrac- 
 iised. To make a confirmation or compromise of any value the 
 parties must be at arm's length, on equal terms, with e(pial 
 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 pressure, executed a new bond 
 for the same purpose, tlie 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 invalidity 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 {v.). 
 
 Of course, where a person confirms a portion of a deed, with 
 nothing more, that operates as a confirmation of the whole trans- 
 action (?;). 
 or by Will. A gift or voluntary settlement originally voidable may also be 
 
 wholly or in part confirmed l)y the donor's will, whether the 
 confidential or fiduciary relation has ceased before the death of 
 the donor (■?'.'), or still subsists at his death {x), unless the will is 
 merely part of the same scheme {y). 
 Byacquie- 2. The donor may also confirm the transaction by mere 
 
 acquiescence, without any positive act of confirmation (c). 
 
 («) Kempson v. Aslihec, L. V,. 10 Cli. {-■) Milncr v. Ilaracood, 18 Ves. 259, 
 
 15 ; ante, p. 489. 277; Jarratt v. Aldam, L. R. 9 Eq. 
 
 [t) Cochbuj V. Pratt, 1 Ves. 401; 463. 
 
 Wood V. Doivnes, 18 Ves. 122, 128 ; {w) Mitchell v. Homfrmi, 8 Q. B. D. 
 
 Bo<M V. (yiirkn, 1 Ball & B. 330, 339, 587 ; and see Bizzey v. FUglit, 3 Ch. D. 
 
 and cases there cited ; Dunhar v. Tre- 2G9. 
 
 denucclc, 2 Ball & J5. 304, 317 ; .S'awr^ (./) Stump v. Gabu, 2 Do G. M. & 
 
 V KiiKj, 5 n. L. C. 027 ; Mitchell v. Horn- G. 023. 
 
 frcni, 8 Q. B. D. 587. {y) Waters v. Tliorn,^ 22 Beav. 547 ; 
 
 (m) M'ruiht V. Vanderplanh, 8 De G. Lyon v. Home, L. R. 6 Eq. 655. 
 
 M & G 147 • Mitchell V. Ilomfray, 8 (z) Wright v. VanderplanU, 2 K. & 
 
 Q ■]. U 5.J1 J. 1, S. C. 8 De G. M. & G. 14G-7. 
 
 scence.
 
 HOW CONFIRMED. 50] 
 
 Acciuiosconcc in a trau.sacLiun iinpeaclKiLle on the ^touikI of 
 igiiorauce of liglits, mistako, or iiiisapprclu'iision, after a full 
 knowlcHlo'o of those rin-hts lias Imvii nl,i;,ii„.,|, ur ihe piTsnii who 
 could have set aside tlu; transaction has l.econio awan- <.f his 
 mistake, will conlinn the transaction and render it unimpeach- 
 able (((). 
 
 Again, a gift ol)tained l.y fraud or un(hu-, iulhience caniK^t 1m; 
 set aside by the donor, if, after he has become aware of the frau.l, 
 or after the influence by which the gift was obtained has censed, 
 or the confidential or fiduciary relation has tei-niinated, 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 acquiescence as a 
 defence to prove the facts from which it can be inferred (d). 
 
 Delay where it does not operate as a statutory or positive bar Delay wlion 
 operates simply as evidence of assent or acquiescence (>). In '^ '"^" 
 considering the question of mere delay two most imjiortant cir- 
 cumstances are, the length of the delay, and the nature of the 
 acts done during the interval. The question is always one of the 
 circumstances of each particular case, and no more precise rule 
 seems possible (/). 
 
 In general, no lapse of time, however great, will protect the 
 parties to a fraud which is clearly proved (//). 
 
 In special cases mere lapse of time has been held under the 
 
 (a) Hogldon v. ITogldon, 15 Beav. SiddaU, ,3 I). F. & .T. 77, per I/jril ("anip- 
 
 278, 314; Life Association of Scotland bell, L.C. 
 
 V. Siddall, 3 D. F. & J. 74 ; Earl Beau- (e) Life Association of Gotland v. 
 
 chcnn]) v. Winn, L. E. G II. L. 234, 235 ; Siddall, 3 D. F. & .1. 72. 
 
 and see Kerr, Fraud & Mis. 2nd ed. 332 (/) Lindsai/ Pdroleum Co. v. Ilurnt, 
 
 et seq. L. R. 5 P. C. 241, 242 ; and Erlamjer v. 
 
 {h) Wriffht V. Vanderplanl.-, 2 K. & J. Xew Somhrero Phosphate Co., 3 App. 
 
 1, S. C. 8 be a. M. & G. 133, 141, 148; Cas. 1279, per Lord Blackburn ; see 
 
 Blacjrave v. lioiith, 2 K. & J. 509, S. C. Kerr, Fraud & Mis. 2nd ed. 332 ct 
 
 8 D. M. & G. C20, G213; O'JJrien v. seq. 
 
 Lewis, 4 Giff. 221. (r/) Bandon v. Becher, 3 CI. & F. 479; 
 
 (c) Moxon V. Payne, L. R 8 Cb. 881, Bowen v. Erans, 2 H. L. C. 257, 282; 
 
 88(3. and see Hatch v. Hatch, 9 Ves. 292 ; and 
 
 ((/) Life Association of Scotland v. Turner v. Collins, I.. 11 7 Cb. 342.
 
 508 VOIDABLE DEED, 
 
 circumstance.s sullleieni lo juvvoiit a deed lieing set aside on llio 
 "round of fraud, or undue inlluence, or nf the existence at llio 
 date of llu' deed (if a confidential 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 transaction com- 
 plained 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 ha\'ing been 
 lost, and the position of matters materially altered, Sir (1. J. Turner, 
 V.C., dismissed the bill, saying (/) : " louder these circinnstances I 
 think I should not be going too far in holding that this bill ought 
 to be dismissed tijion the ground of length of time only." 
 
 In Turner v. Collins (k), a deed of gift from a son to his father 
 made in 1855, but not impeached Ijy the son till 1869, although 
 he had complained of it and had taken advice in 1862, was 
 upheld, except as to a particular power which was strtick 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 (I). 
 
 And delay is a bar when (hiring the inters^al the rights and 
 liabilities of others have l)een varied (m). 
 
 Delay when lUtt lapsc of time will not prevent relief where the infiuence, 
 
 not a bar. jjy an undite exertion of whieli the gift or voluntary settlement 
 was obtained, exists until the action is brought. So delay is no 
 bar when, having regard to all the circumstances of the case, it 
 is not \mreasonable. In Kcmpson v. Afihher (n) a young lady 
 in 1859 joined her stepfather in a bond as Ids surety to mature 
 in six years. In 1 8GG, under pressure from him, slie joined in 
 
 (//) See Grealeij v. Mousley, 4 De Ci. & (/.) I.. W. 7 Ch. 8-.>9 ; ante, p. 489. 
 
 J, 95-96. (0 JilfiH >■">'« "■■ Jiouth, 2 K. & .T. .'>09, 
 
 '(/) In neaihn v. Kliu/, 9 Hare, 499, S. C. 8 De G. :\I. & G. (I'.'O; Tiinipr v. 
 
 533 ; and see Wrif/ht v. Vnmlerjilank, 2 ColUm, L. R. 7 Ch. 341-:{42. 
 K. &.T. t, S. V. 8 De G. M. & G. 133, (m) Jiuhjiraij v. Xcirstcad, ',] D. I'. & 
 
 140-7, 149; Clanricarde v. Henninfj, 30 J. 483-484. 
 lieav. 175. (") L. 1{. 10 Ch. U'l ; ante, p. 489.
 
 iloW CUNFIU.MKIJ. j(j«j 
 
 cxeculinu- ;i new l.ond as his surely for llic sum tlicn due itM<l 
 arrears of iinnvsi. In J 872 active; |irnccr(lin-.s wnYa Jird taken 
 against lier, mIicu slu- :U niic- tiled a Inll to imjieacli the houds, 
 wliich were liehl void aoaiust her. And eovrrLure is uidy in any 
 ease not witlu'n the IMarried AVi mien's riojMTly Ad, Jbhi', an 
 excuse fur delay {<>). 
 
 Mere delay matters little or nothin,n- so Iou.l^ as ihe ]M>.sitinn nf 
 all the parties to the transaction is not in any sul)stantial way 
 altered, wlictlicr l)y delay, or hy anyiliiiiL^r d,,,,,^ dui-ing the 
 interval {j>). And of course delay is immaterial so Ion;.; as the 
 person delaying does not know his rights, or is ignorant of the 
 fact that the transaction can be impeached (7). To lose a remedy hy 
 laches or delay, it is, if not universally, at all events ordinarily 
 necessary that there should he sullicient knowledge of the facts 
 constituting the title to relief (/■). 
 
 (o) Hatch V. ITatrh, 9 Ves. 292; V'aod v. Domnci, 18 Ves. 122, l:)(l; 
 
 IVollastoii V. Tribe, L. Vx. 9 Eq. 44. But Boche v. O'Brien, 1 IJall & B. 330, 342', 
 
 Bee now 45 & 4(5 A'ict. c. 75 ; Lutrc v. Fox, wlierc a decil confirmed hy a Hiibsuqueiit 
 
 15 Q. B. D. Gi)?. ilieJ was set aside after tliirty-lbur years ; 
 
 {p) Wollaston v. Trihc, L. E. 9 ]■](]. J)'Arc;j v. JfJrq/, 1 Hayes & .1. 115; 
 
 44, 50 ; Ridgwaii v. Xeiostmd, .3 1). ]•'. & Murse v. Itoijal, 12 \gs. 'M.\, 374 ; Life 
 
 J. 485; Lindsaij Petroleum (t*. v. Hard, Assurance of tScolland v. !<iddall, 3 1 ». 
 
 L. K. 5 P. C. 239-240; Kiu,j v. Ander- Y. & J.5 8; Sug. V. & P. 14tlicd. 252-3. 
 son, I. 11. 8 Eq. 615. (,•) Lindga;/ Petroleum Co. v. Hurd, 
 
 {(fj Voclcimj V. Frutt, 1 Ves. 4Ul ; L. 11. 5 P. Cat p. 241.
 
 PART VI. 
 
 MISCELLANEOUS POINTS, PRACTICE UNDER THE STATLTES 
 OF ELIZABETH, AND COSTS,. 
 
 CHAPTER I. 
 
 MISCELLANEOUS I'OINTS AND I'RACTICE. 
 
 As was decided by Lord Eldou {</), the Court will not restrain u s.-tiIor n. iihcr 
 man who has previously made a voluntary settlement of real [^^.["''111!^ 
 property from selling it to a purchaser; nor, on tlie otlier "*''; ''''t,"^ ** 
 
 ^ uiulcr 27 
 
 hand, will it in general help him to frustrate his own deed {h). ^''z- c 4. 
 If, however, the purchaser l)e willing to complete the purcliasu 
 on having a good title shewn, as he can, by so doing, remove 
 all objection to his title as regards the voluntary settlement, 
 it seems that the Court will, in this exceptional case, enforce 
 speciiic 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 tliat instrument, order specific 
 performance of a contract to sell for value against an unwilling 
 purchaser (</). 
 
 In such cases the Court remains neutral; it will not imjjede tlie 
 sale whereby the vendor seeks to get rid of the voluntary settle- 
 ment, nor will it assist liini in doing so. The reasons \\\\y the 
 Court will not in general enforce, on Ijelialf of the voluntary settlor, 
 
 (rt) PuUcrtoft V. Pulcertoft, 18 Vcs. Eoujller, 40 L. T. (N.b.) 12G, S. ('. 11 
 
 84; Barton V. Vanhajthuyscn , 11 Hare, L.T. (N.S.) 711). 
 
 131 ; lio'iher v. Williams, L. li. 20 Eq. (c) Peter v. Nicolh, L. 1,'. 11 Eq. ?.0l ; 
 
 218. Ery, Sp. Pf. 2ndc{]. 17G, 177. 
 
 (b) Clarice v. IViUott, L. R. 7 Ex. 318 ; (</) Clarlr v. Willolt, L. 11. 7 Ex. 318 ; 
 
 General Jleat Supphj Association v. Eiy, Sp. J'f. 2nJ ccl. 176, 177.
 
 51i2 SPECIFIC PERFORMANCE 
 
 a contract for sale of that ]>ro})erty, arc these : it uill not help 
 him to avoid his own deed, and a vendor has no right to insist 
 on a purchaser making his title good by accepting it (c). 
 
 And the Court will not interfere actively against a volunteer 
 through the medium of a person claiming only through him who 
 created the voluntary settlement (/) ; for the voluntary convey- 
 ance is void only as against a purchaser. So, in general, a pur- 
 chaser alone can induce the Court to lend its aid in removing it, 
 and the settlor cannot enforce the specific performance of the 
 contract ([/) except as against a willing purchaser (//). 
 
 So a purchaser of property the subject of a voluntary settlement 
 lias Ijeen held entitled to recover back his deposit from the 
 vendor (0- 
 
 Seulor cannot And where the seiLlur made a subsequent mortgage of the land 
 
 settlement hy ill Consideration of moneys to he then afterwards advanced, it was 
 
 ^ ^^^ g held that declarations or admissions, implied or expressed, of the 
 
 mortgagor, were not admissible as evidence after the mortgagor's 
 
 death that money had actually been advanced upon the moit- 
 
 gage (/.). 
 
 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 comprised 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 (/). 
 
 Can creditors The questiou lias been raised, but not decided, in Johnson v. 
 of deceased ^(v/r/jT? O'l), whether the creditors of a voluntary settlor after his 
 
 settlor enforce J \ /> " _ 
 
 specific ^ death stand in a better position than the settlor did, so as to be 
 able to compel specific performance of a contract for sale entered 
 
 (e) Clarle v. WlUott, L. E. 7 Ex. 313. Sug. H. L. 153 ; Doe v. Wclber, 1 Ad. 
 
 (/) Per Lord Hatherley in Dolphin v. & E. 733 ; Rosher v. W'dUaim, L. 11. "20 
 
 Aylicard, L. E. 4 II. L. 480, 502. Eq. 218 ; Fry, Sp. Pf. 2nd ed. 17G, 177. 
 
 (r/) Smith V. Clarhnid, 2 i\Ier. 123, 127, {h) Pdrr v. Mcolh, L. I!. 11 Ex. 391. 
 
 where Sir W. Grant acted upon the (/) Clarke v. Willoff, L. P. 7 Ex. 313 ; 
 
 opinion lie liad previously expressed in General Meat Stipplji Association v. 
 
 hurU V. Dairson, IJolls, March 1805 7.'w#er,40 L.T. (N.S.) 126, S .C.41L.T. 
 
 (.MS.)-, Sug. V. & P. 14th ed. 720; (N.S.) 719. 
 
 Johnwn v. Leijurd, 3 Mad. 283, S. C. (/.) Doe v. Wehla; 1 Ad. i*i; ]■:. 733, 
 
 T. & It. 281 ; and see Jlintoa v. Hintdii, 710 ; ante, p. 2 Hi. 
 2 VcK. 631-3 : Ducenport v. Jlisl<oj,p, {I) WalLs v. U'attx, 21 W. 1.'. (;23, 
 
 2 y. & C. C. C. 451, S. C. 1 I'hil. 098 i (w) 3 Mad. 283, S. C.T. & 1!. 285, 
 
 performance ?
 
 UNDER 27 KLIZ. C 1. 513 
 
 into ])y the settlnr. Tl is coiiccivo.I that, as their rights ar'j those, 
 and those only, of the settlnr, and a.s the Court would not assist 
 him to avoid his own deed, they could not eonipd s].eeilir per- 
 formance of such a con tract. 
 
 But, on tlie other hand, spccilic peri". .nuance r.f an ar'roement ''"ntrnct of 
 to sell property previously the subject of a voluntary settlement, [."'V.'.rj":"! 
 will be ordered at tlie instance of the purcliaser (//). S.. an 
 equitable mortnagee's title will be enforced (o), even though he 
 entered into the contract with notice of the settlement (/y), and 
 though the settlement was supported by meritorious considera- 
 tion {q), and as against a legal estate vested in parlies deriving 
 under voluntary limitations in a marriage settlement (/•). So a 
 decree has been made tliough the settlor was a feme covert (.s); 
 and althougli tlie 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 performance unless of 
 of a contract for the sale to him of leasehold property, whether the *^'"*''"'''^''' 
 only property, or merely a part of the property, comprised in a 
 settlement; for such settlement, so far as regards the leasehold 
 property comprised in it, is not voluntary (//)• 
 
 Where the vendor bought the property from the original settlor, 
 
 (n) Leach v. Dean, 1 Ch. Eep. 78, 172, where the decree is given, p. 180 ; 
 
 and see the decree L. E. 1 Ch. 461 ; Lister v. Turner, 5 Hare, 2H1, where 
 
 Parry V. Cawar(len,2'D\ck. MA; Willats there was a contract to execute a legal 
 
 V. Bushy, 5 Beav. 193 ; Dahlng v. mortgage with power of sale, and tlic 
 
 Mldrnper, 26 Beav. 568 ; Currie v. Kind, property was ordered to be sold ; sec ft 
 
 1 My. & Cr. 17, S. C. 5 L. J. (N.S.) Ch. Hare, 293; Seton, 4th ed. 1374. 
 169, where the decree is given; /Stack- (p) JjucUe v. Mitchell, 18 Ves. 100; 
 
 pooh v. >Staclpoole, 4 D. & War. 320, Buttcrfield v. Heath, 15 Benv. 4(iS. 
 352-3; BucUe v. Mitchell, 18 Ves. 100; {q) Parry v. Cau-ardcn, 2 Dick. 541 ; 
 
 Lister V. Turner, 5 Hare, 281, 291 ; tShaw v. Standish, 2 Vern. 327. 
 Posher v. Williams, L. E. 20 Eq. 213. (r) Johnson v. Lcfjard, 3 Mad. 283, 
 
 For the form of a decree enforcing (at S. C. T. & E. 281 ; tStaclpoolc v. >Stacl- 
 
 the suit of a purchaser) an agreement 2^oole, 4 D. & War. 32t), 352. 
 to buy property the subject f)f a previous («) Buttcrfield v. Heath, 15 Beav. 408 ; 
 
 vohintary settlement, see Seton, 4th ed. ante, p. 284. 
 
 1374; and for decree against vendor (who {t) Pulvertoft v. Pulrertoft, 18 Ves. 
 
 liad made a voluntary settlement of the 92; Metcalfe v. Pidrertofl, 1 V. & 1'.. 
 
 estate) saving the rights of an absent 180, S. C. 2 V. & B. 200; 2 Spence, 
 
 claimant under the settlement, sec Currie Eq. Jur. 289. 
 
 V. Nind, 5 L. J. (N.S.) Ch. 172, and (u) Marsh \. Earl GranriUe, 2\C\\.D. 
 
 Willats V. Busby, 5 Beav. 200. 25 ; Li re Lulham, 32 W. R. 1013, S. C. 
 
 (o) Ede V. knmoles, 2 Y. & C. C. C. 33 W. K. 788 ; ante, p. 258. 
 
 L L
 
 514 
 
 SPECIFIC TERFORMANCE. 
 
 afiainst 
 subsequent 
 purchasers 
 iVom biiu. 
 
 Parties to 
 notion for 
 ppecitic per- 
 forniance. 
 
 Permanent 
 improvements 
 when allowed 
 for. 
 
 on a resale he can compel a purchaser from lam to complete the 
 purchase, although tlie title depends on the invalidity of tin' lirst 
 settlement (v). The reason of this seems to he that the Court 
 acts on the presumption that the original settlement has not 
 been made good by matter ex post facto (w). 
 
 The general rule in an action for specific performance of a con- 
 tract is that all the parties to the contract are the only necessary 
 parties to the action (.c). 
 
 "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 persons beneficially interested under 
 it (if). The ground of this is that no purchaser of property subject 
 to a settlement alleged to be voluntary would take the title with- 
 out being satisfied that the settlement was void against him : it 
 would otherwise be difficult to effect any sale of property com- 
 prised in a voluntary settlement; so that not to allow the 
 volunteers to be made parties would go far to destroy the effect 
 of the statute (z). 
 
 In granting relief against a person in possession under a title 
 which is only constructively fraudulent, the Court will reimburse 
 him for any permanent improvements (a), whether the relief is 
 granted in favour of a creditor or a purchaser. Ihit in cases 
 where the conveyance is actually fi-audulent, such reimbursement 
 will not be made (h). In America relief is given in similar cases 
 to creditors, subject to the same lialjility to reimburse a person in 
 possession under a title which is only fraudulent by construction 
 of law (r). 
 
 (v) Currie v. Kind, 1 My. & Cr. 17 ; 
 Butterjicld v. Heath, 15 Beav. 408 ; Fry, 
 Sp. Pf. 2nd ed. 391. 
 
 {ic) Fry, Sp. Pf. 2nd ed. 391. 
 
 (x) Mole V. timith, Jac. 490 ; Tasler 
 V. Small, 3 My. & Cr. C3, overruling 8. C. 
 6 Sim. 625 ; Fry, Sp. Pf. 2nd ed. G2, 73, 
 70, 80; In re Lulham, 32 W. P. 1013, 
 S. C. 33 W. E. 788. 
 
 (j/) Ilolford V. nolfard, 1 Ch. C;i. 
 217; W'dlats v. Bushy, 5 Beav. 193; 
 Lister v. Turner, 5 llaro, 281 ; Buckle 
 V. Mitch'll, 18 Ves. 100; Duldnfj v. 
 
 WJnjmper, 26 Beav. 5G8 ; Fry, Sp. Pf. 
 2nd ed. 72; but see Fletcher v. Kctte- 
 man, 40 L. J, (N.S.) Ch. G24 ; liosher v. 
 Wmams, L. R. 20 Eq. 210. 
 
 (z) Towncnd v. Taker, L. P. 1 Ch. 
 44G, 457. 
 
 («) Mhie v. Gouf/h, 1 Ball & B. 444. 
 See Murrai) v. Pulvier, 2 Sch. & Lcf. 
 474, and cases cited in Wh. & Th. L. C. 
 Cth ed. vol. 1, 209, 210. 
 
 (b) Ketiney v. Broiene, 3 Ridg. 518 ; 
 iStrattonv. Murphy, 1 Ir. P. Eq. 3G1. 
 
 (r) Piunip. Fr. Con v. (Anier.), 2iid td. 
 599, GOO.
 
 EVIDENCE OF DEBTS UNDER 13 ELIZ. i'. 5. 515 
 
 TliG question as to what evidcnco of consick'ratioii not nu-n. Evi.icnc. of 
 tioned ill a deed is admissible in support of it as a traiisacti.,u '""'''''"""" = 
 for value has been already discussed (>/). So als<. th. .jucstion offraml. 
 of evidence for or against a sherifr seisin- or rofusin- to seize in 
 spite of a fraudulent assignment or process of law has been dealt 
 witli (c). 
 
 A schedule of ddjts lilcnl by the settlor in his subsequent insol- Rcl.odnlo fih-d 
 vency is, of course, evidence as against him of those debts, but is '" ""^'*''^"^■^• 
 not evidence against tlie settlecs, and therefore not sunicient to 
 support a decree setting aside the settlement (/). 
 
 The question what is evidence of a debt of thr fimr. a settlement Kvi-l.-nm of 
 is executed is somewhat dillerent from the question who is a i'!i nil"".'"''-, 
 creditor so as to be entitled to imju-ach that settlement under 
 13 Eliz. c. 5. 
 
 For, it must be borne in mind that, althougli a jiarticular 
 creditor may not be able to impeach the settlement; still, if it 
 be set aside at the instance of another creditor, the property com- 
 prised in it at once becomes assets for all the settlor's creditors, 
 and not merely for the particular creditor who successfully im- 
 peached it (rj). So, Lord Cottenham said in Skarf v. Suulbi/ {h) 
 that, in order to take any benefit from having been creditors at the 
 date of the deed, the plaintiffs must allege 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 lieen at tliat 
 time iiidel)ted to others. 
 
 It is not necessary tliat the settlor's liabilities at the time of 
 the execution of the settlement should have then actually ripened 
 into debts in order to avoid it (i). The way in wliich a settlor's 
 liabilities and assets should be estimated has been already dis- 
 cussed (/,). 
 
 It is a general principle of law that fraud is not to be presumed. Rurdm of 
 The burden of proof of debts suflicient to avoid a settlement |^^?n,'.ra" on 
 therefore rests, in general, upon the person or persons who seek to *^'"'^'''"'""- 
 
 {(I) Ante, p. 2GG. (.7) Ante, pi. i. cli. iii. ; post, p. 518. 
 
 (e) Ante, pp. 174 et scq. (//) 1 Mac. & G. 37o-l. 
 
 (/) Townsend v. Westacott, 2 Bcav. (j) Ante, pp. 50, lu. 
 
 340, 345, S. C. 4 Beav. 58 ; Barlhuj v. (/.) In re liidhr, 22 fli. D. 7 J ; nnto, 
 
 Bishopp, 29 ]!eav. 417, 421. pp. 57 ct 6C(i. 
 
 T, L 2
 
 51G INQUIRIES, 
 
 impeacli it. So, where a settlement is iinpoaclied on the grouml of 
 an intent to deieat future creditors, the burden of proof lies on tliose 
 who impeach it (/). 
 
 To this rule, that the burden of proof rests on those wlio seek 
 to impeach the settlement, there are two exceptions. 
 
 The first exception is where the settlor can be shewn to have 
 executed the settlement with a fraudulent intent {m). In this 
 case it is not necessary to prove the existence of any debt at 
 the time the settlement was executed ; 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). 
 
 When A creditor whose debt is subsequent to the settlement and who 
 
 directeTas to brings an action in order to prove antecedent debts, with no 
 settlor's debts, evidence of such debts (except mortgages), will not be entitled 
 
 to an inquiry as to the state of the settlor's circumstances at 
 
 the time of the settlement (q). 
 
 But when Inquiries will, however, be directed where debts are proved, 
 
 properk^n ^^^^ ^7 ^ document whicli is not evidence, as against those 
 evidence. claiming under the settlement (r). 
 
 If proof of one ^^ there is proof of one prior debt (s), or if there is some 
 debt, or some evidence of the settlor having been in embarrassed circumstances 
 
 embaiTass- ° 
 
 {t) Richardson v. SmaJhrood, Jac. 552; {p) Crosaley v. EhcorlJii/, L. R. 12 Eq. 
 
 Ex parte Mercer, 17 (I V>. D. 290. 1G5; Muchatj v. Dmujlas, L. R. 14 Eq. 
 
 (m) In re Pearson, 3 Cli. 1). 807; lOG; ante, pp. 61 et seq., G5. 
 
 ante, p. G8. (7) Lnsh v. M'dldnson, 5 Xea. 384 ; 
 
 (n) Ante, pp. 41, 67. Jlolhivayv. Millard, 1 Mad. 414, 421. 
 
 (o) Toicnsend v. Westacott, 2 Roav. (r) Ton-nsrnd v. Wcstacott, 2 15eav. 
 
 360, S. C, 4 Beav. 58 ; Crossley v. 340, S. C. 4 Reav. 58. 
 
 Elworthy, L, R. 12 Eq. 165; Maclaij (.v) JlicJiardsony. t'i'mallirood,. lac. bi)4 
 
 v. Douf/las, 1j. R. 14Eq. lOG; Ej- parte Shurf w Sonlhij, 1 Mac. & G. 364 
 
 liussell, 19 C'h. D. 588. Jcnli/n v. Vamjhan, 3 Drew. 419, 420 
 
 ante j)p. 39, 50, 51. 
 
 ment.
 
 WIIKX DIKKC'l'Kl). .0] 
 
 at the time the settlement was executed (/), as in tlie ease of 
 Norcutt V. Dodd (u), whcvc tlierc then were tliree executions 
 in tlie house of the .sfttlor, it is sudicient foundation f(.r an 
 inquiry to ascertain llic amount of the settlor's dchls and lia- 
 bilities and the value of liis property at tlie dati; of the settle- 
 ment. And if it appears that at that time ids liabilities exceeded 
 his assets (excluding the settled properly) tlie settlement will be 
 set aside (r). 
 
 Where it appeared tluit at tlic time uf making a voluntary Inquiry at 
 
 volui 
 risk. 
 
 settlement tlie settlor had competent private means, but the j;."'""'^"'-''"''' 
 
 evidence shewed that the affliirs of a firm in which he had long 
 before become a partner were much embarrassed, and less than 
 a year after\vards became bankrujit, it was held that the settle- 
 ment was void under 10 EHz. c. 5 ; but (there being some slight 
 doubt as to the amount and value of the assets when the settlo 
 ment was made) an inc^uiry was allowed the volunteers at their 
 own risk (vf). 
 
 I5ut a mere allegation in the statement of claim, that debts No inquiry 
 owing at the date of the settlement are still unpaid, is not when. ' 
 enough (a) ; and where there was only one debt of snudl amount, 
 and that not clearly proved, and no circumstances to induce the 
 Court to suspect that the settlor was at tliai lime largely 
 indebted, no inquiry was alloweil (//). So, ihr mere fact of a 
 man conveying 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 settlor was 
 indebted when he executed the settlement no in(piiry will be 
 allowed (z). 
 
 The principle is, that where the creditors have the opportunity 
 of proving, and do not prove, the existence of debts at the time 
 the settlement is executed, the action must be disnnssed (a). 
 
 {I) CIn-lsti/ V. Court€nay,13Bea\'.m; {x) Lmh v. ]]'ilk!nson, 5 Vcs. 384; 
 
 and see Taijlor v. C'oencn, 1 Ch. D. 036. Mandcra v. Muiulcrs, 4 Ir. Eq. 434. 
 
 (?() 1 Cr. & r. 100. {ij) Mandcra v. Mandert, 4 Ir. Kq. 
 
 (v) Christy v. Courtenay, 26 Beav. 434 ; ante, p. 50. 
 
 140; Townsendv. irf67«co«, 2 Bcav. 340, (--) Battcrsbcc v. Finriiujlvii, 1 «\v. 
 
 S. C. 4 Bcav. o8 ; ante, p. 57. 186. 
 
 (ir) Denimi v. Titttersull, 18 ].. T. («) Mandcra v. J/<(;i(/. ;>■, 4 Ir. Eq. 
 
 (N.S.) 303. 438.
 
 518 
 
 UNDER 13 ELIZ. C. 5, 
 
 Settlement, of 
 wliich plain- 
 tiff ignorant, 
 coming out in 
 the action. 
 
 Inquiry 
 directed 
 
 though no 
 proof of debt. 
 
 Inquiry as to 
 consideration. 
 
 \Vbo may 
 biing an 
 action under 
 13 Eliz. c. 5. 
 
 When suhse- 
 (juent creditor 
 can impeach 
 bcttlement. 
 
 But it seems that where the action is nut brought for the 
 express purpose of affecting the settlement a different rule 
 applies. Thus, in Kidncij v. Coussinahcr (V), where the suit was 
 instituted in ignorance of the settlement, which came out in the 
 answer, Sir W. Clrant, ]\I.li., directed inquiries, making the following 
 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 Lush v. 
 Wilhiiison (d), cited in support of that proposition, does not 
 resemble this case. In that cause the bill was filed for the 
 express pm'pose of affecting tlie 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 
 tlic bill, instead of giving liberty to file another. But in this 
 instance the creditor, not apprised of the settlement, filed the 
 bill to affect all the devisees; and this settlement came out in 
 the answer, which led to inquiry" (c). 
 
 In some cases inquiry will be directed as to the consideration 
 for a settlement which is apparently voluntary (/). 
 
 As a general rule, any person who is entitled to rank as a 
 creditor may bring an action to avoid a settlement under lo Eliz. 
 0. 5 io). 
 
 A creditor whose debt is contracted suhscquenti// to tlie date of 
 the settlement is in certain cases entitled to impeach it. 
 
 The only reason that a subsequent creditor is allowed to 
 maintain such an action merely on the ground of the settlor's 
 indebtedness, is that, if a prior creditor set aside the settlement, 
 a subsequent creditor would be entitled to participate pro rcUa, 
 so that he has an equity to participate, and may bring his 
 action to enforce tliat equity (//). 
 
 (//) 12 Ves. 13G. 
 
 (c) 12 Ves. 155. {[/) As to wlio are creditor.s, see ante, 
 
 (d) 5 Ves. 384. pt. ii. ch. ii., ch. iii. 
 
 (e) See Ouoch's Case, 5 Kep. 00 a ; (//) Jcnhpi v. Vavfjhau, 3 Drew, at 
 ante, p. IGC. p. 425; and .see ('liamkij v. Jhuinani/, 2 
 
 (/) Jhint V. Jlaunsdl, 1 Dow, 211; Sch. & Lef. 714 ; Story, Eq. Jur. 12th ed. 
 ante, pp. 200 et scq. s. 301 ; ante, p. 01.
 
 WHO MAY i;i;i.\(; action. 
 
 nio 
 
 JUit, as lii.s o.iuiLy caiuiut possibly bo a LeLU-r one tlian Ihat 
 of a ciea[l,a- wliose debt was coiitraeteil l,ufore tlaj .late of 
 tlic settlement, s.. if that antecedent creditor cannot iniiH-ach 
 sucli settlement, neither can the subseciuent cre.litor impeach it 
 m&rdy on account of the settlor's indebtedness to him (/). 
 
 A subsequent creditor can maintain an action to set aside a SuL^oquei.t 
 settlement merely on the ground that it was voluntary and tluit Sfn Z'"^' 
 the settlor was then indebted, so lon<4 as any dubt due at the l"■'"^'^•^' 
 aate ot Uie settlement remains still unpaid at the lime of the 
 issue of the writ. 
 
 This Avas expressly decided in the case of .A /*/////, v. Vaiijhaii (/.•). 
 Sir Pi. T. Kindersley then said (/; : "In cases where a subse- 
 quent creditor liles a bill it occurs to me that much may 
 depend on this (supposing there is no evidence of anything to 
 shew the fraudulent iulenlion but tlic fact <.f the settlor bein^' 
 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 tile a bill, it appears to me tliat a subse([uent 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 subse<[uent 
 creditor, and debts antecedent have been shewn still to subsist, 
 the Court, having its attention drawn to that, has made a decree 
 in favour of the creditor" (jn^. 
 
 This decision has been followed in Fi-icmmi v. P<>ik (h). 
 Sir W. M. James, V.C., there said that Jcnhjn v. Vau;ihan (/•) 
 decided that, if there be at the time of tiling the bill an unpaid 
 creditor whose debt is prior to tlie settlement, a subsequent 
 creditor has exactly the same right to file a bill as ihe jirior 
 
 (/) IMowmj V. Millard, 1 Jlacl. 410; (/) 3 Drew. 425. 
 
 Walker v. Bvrroirs, 1 Atk. 94; Ede v. (/«) Sec >Sl.ar/\. /^oidhi/, ] y]ac. &. (]. 
 
 Kmnoh', '2 Y. Si C. CO. 172,178; Smith 373; Jilchanhoii v. Siualhruod, .Inc. 
 
 V. Tatlon, G L. li. Ir. 32 ; Stoiy, Eq. S.Vi. 
 
 .Tur. 12th cd. s. 3G0 ; Bump. Fr. Conv. («) L. K. 9 Eq. 200, S. C. L. K. 5 «"li. 
 
 (Aniev.), 2ml eil. 312, 314, 317; ante, 538, 540; ante, p. 47; Vrwaky v. hU 
 
 p. 61. irorthij, L. IJ. 12 Eq. 15b; Tuijlor v. 
 
 (/.) 3 Drew. 413. Vvcnen, 1 Ch. D, 030.
 
 520 
 
 UNDER 13 ELIZ. C 5, 
 
 creditor has ; that is to say, the case is to he tried as if the prior 
 and not the subsequent creditor were tlic plaintifi'. 
 
 Can subse- The point has never been expressly decided whether, if all the 
 
 Saiu"^''""* debts due at the date of the settlement are paid before the writ 
 action il all jjj ^j^g action is issued, a subsequent creditor can maintain that 
 
 prior creditors 
 
 are paid? action to Set aside the settlement sim])ly on the ground that 
 the settlement was voluntary, and that the settlor was then 
 indebted (u). It is conceived that, in the absence of any 
 fraudulent contrivance on the part of the settlor to pay off 
 the existing creditors by creating fresh ones (p), 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 sub- 
 sequent 
 creditors. 
 
 Of coui-se, a settlement made by a man not then indebted 
 and not meaning a fraud is good against subsequent cre- 
 ditors (q) ; as is a settlement made by a man not then indebted 
 and not in contemplation of going into trade, even though the 
 settlor should some years afterwards, by a totally new arrange- 
 ment, go into trade (v). 
 
 As the question, whether a settlement is valid or void against 
 creditors, is determined upon considei'ation of all the circumstances 
 at the time it is executed, so it is plain that, if the settlor was 
 not then indebted, no subsequent creditor can impeach it incnl// 
 on the ground of the settlor's subsequent indebtedness to him (.s). 
 
 When no debt A subsequent creditor nuiy, however, impeach a settlement 
 settl'emcnt^and witliout having to prove at least one debt due at the date of 
 subsequent ^j^^ settlement and still unpaid at the time of the issue of his 
 
 creditor can ••■ 
 
 impeach deed, writ in any of the following cases : — 
 
 1. If it can be shewn that the settlement was made with 
 
 (o) Lvah V. WiUdnson, 5 Vcs. 384 ; 
 Jeulifii V. Vaiifj/ian, 3 Drew. 425 ; but see 
 tSinitli V. Tutton, L. E. Ir. 32 ; ante, pp. 
 64 et se(|. 
 
 C;>) Jiicltardsoti v. fSmaUwood, Jac. 
 552; Holmes v. Penney, 3 K. & J. 99; 
 Smith V. Tutton, G L. I{. Ir. 32 ; and sec 
 Hump. Fr. (Jonv. (Amer.), 2nd cd. 315, 
 316. This has been so held in Upper 
 Canada, Collard v. Bennett, 28 Cliy. 550. 
 
 (7) JMowaij V. Ji;ilariJ, 1 :\Iad. 420, 
 421 ; ante, p. 75. 
 
 (r) Machou v. Douglas, L. IJ. 14 Kq., 
 per Malins, V.C., at p. 121 ; JSlory, Eq. 
 .lur. 12ih cd. 8. 358; see Bump. Fr. 
 Conv. (Amer.), 2nd ed. 300, 310. 
 
 (s) See tiedgwiclc v. Place, 25 I-. 'i'. 
 (N.S.) (Amer.) 307 ; Bump. Fr. Conv. 
 (Amer.), 2nd ed. 310; so too in Upper 
 Canadn, Boustcad v. .y/(«?/-, 27 Chy. 280.
 
 WHO MAY BIUXG ACTION. 5'Jl 
 
 express intent to "delay, liinder, or defraud " ////<ov creditors (/): 
 as when, soon after its execution, tlie settlor denudes hiujself of 
 all his remaining property, or the property left out of .settlement 
 cannot be realized when required (//). 
 
 2. If such settlement is made by a man abdiit to enga;,'o in 
 trade, or any hazardous operation, in contempliUiun of possible 
 
 ftiturc indebtedness, with tlie whole or the bulk of his pro- 
 perty (f) ; and even if the settlor had paid all tlehls due from 
 him at the date of the settlement (/'•), or owed no debts what- 
 ever at that date (.?.•). 
 
 3. If such settlement nnist necessarily defeat the subsequent 
 creditor in an action then pending, and was voluntary (y). 
 
 There appears to be no ease in whidi a subseiiuent creditor Sulwqucnt 
 has succeeded in impeaching a settlement for raluahlc consider; i- j'.'rlii'ci.TtTik- 
 
 tion, on the ground of not being made bona, fide, when there were """' *"'"■ ^■•''"*' 
 
 it I lien no 
 
 no debts m existence at the date of the settlement (z). dettH. 
 
 Of course, a creditor mIiosc debt is contracted subsequently to But not if iiis 
 the date of the settlement must not have an interest adverse to '^{XZ ti."''''* 
 that of the prior creditors, for ho cannot maintain an action l'""'"'^'^^'^""- 
 which would, if successful, support his claim at their expense : 
 and a judgment will not be made in his favour unless the 
 effect of it would bo to benefit the prior creditors equally by 
 letting in their claims on the settled property (a). The reason 
 of this is, that the right nf a subsequent creditor to maintain 
 such an action at all, on the ground of the settlor's indebted- 
 ness, depends on that of the creditors at the date of the settle- 
 ment (&). 
 
 (0 Murplqi V. ALraJiam, 15 Ir. Cli. lOG ; ^r;)«>7c7?jwc«, 10 f'li. D.58S; and 
 
 Eep. 371; IVcwe v. Gardner, L. E. 7 sec Bump. Fr. Conv. (Anicr.), 2n'.l cd. 310, 
 
 Eq. 317; lie Clint, L. R. 17 Eq. 115 ; 311; Rmde v. Llciugstunc (Anicr.), 3 
 
 In re Pearson, 3 Cli. 1). 807; Smith v. Johns. Cli. 497, 501. 
 Tatton, 6 L. R. Ir. 32; see Bump. Fr. {>r) Maclean v. Doutjlax, I,. IJ. 11 Ivj. 
 
 Conv. (Amer.), 2nd ed. 308; Story, Eq. 10(1,113. 
 Jur. 12th ed. s. 361 ; ante, pp. G7, 68. (■') In re Pearson, :U li. D. 807. 
 
 ((f) Sjnrett v. WiUoici, 3 D. J. & S. (//) Barlin,/ v. J'/tHhopp, 2<l Beav. 417; 
 
 293; Freeman v. Pope, L. 1!. 5 Ch. 541, Ex parte Mercer, 17 Q. B. D. •JitU; anto, 
 
 544, ante, p. 66 ; Crosslci/ v. Ehcorthi, p. 74. 
 
 L. R. 12 Eq 158, Ex parte liusseU, 19 {-) Smith v. Tutton, 6 L. !•'. Ir. at 
 
 Ch. 1). 588; but sec Smith v. Tatton, 6 p. 43 ; ante, pp. 84 ct (ie.|. 
 L. R. Ir. 32. ("^O Collins v. Jhirtun, 4 Dc Ci. & J. 012 
 
 (r) Machai/ v. Doiujlas, L. 1!. 14 Eq. 'b) Ante, p. 01.
 
 522 UNDER 13 ELIZ. C. 5, 
 
 Action against All action caii be maiutained under 13 Eliz. c. 5, by a cie- 
 
 debtor living t • ■, ^ 
 
 and not ditov against his debtor, though that debtor is living and neither 
 
 an -rup . insolvent nor bankrupt, to set aside 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 account (c). 
 
 Trustee of When the settlor is a bankrupt at the date of the issue of 
 
 bankrupt must , •- . i . i t • i i / x , • 
 
 bring action, the Wilt, the trustee under his hankiuptcy (y ), or the inspector 
 
 under the deed of inspectorship (y), 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 (//). 
 
 In wliat Court The fjuestioii, whether proceedings to avoid a settlement under 
 
 must Inisteo .^.p,.. kiiit i 
 
 in bankruptcy ^'^ ^^^''^- C- ^> should DC taken by the trustee under the settlors 
 settWnt? Ijankruptcy in the Chancery Division of the High Court of 
 
 Justice or in the Court of Bankruptcy (?), is one on which there 
 
 has been some conflict of decisions. 
 
 Before the Bankruptcy Act, 18G0, although it had been laid 
 down that the Insolvent Court was the proper tribunal (A), 
 still there were many cases in which a bill hud been sustained 
 in Chancery after the settlor's bankruptcy by his assignees (l). 
 It was their duty to endeavour to increase the estate for the 
 benefit of creditors, and to inquire into any family transaction, 
 especially between husband and wife, which was liable to most 
 suspicion (//); and, where an official assignee filed liis bill before 
 he had been formally appointed assignee of the baiikrui)tcy, it 
 was held that he had an inchoate right before the bill filed, tliat 
 
 {(■) licese li'iKcr Silver Minivfj Co. v. L, E. 1-i Eq. 190 ; Kcvan v. Cravford, 
 
 Atwell, L. R. 7 Eq. 347 ; Cornish v. CUirl; 6 Ch. D. 29. 
 
 L. R. 14 Eq. 184 ; In re Johnson, 20 CIi. {(j) jHacJM!jv.Dovf/Ias,L.I{.14T.(i.lOC}. 
 
 1). 388, S. C. 51 L. J. (N.S.) Ch. SOS ; (h) Weisc v. Weirdie, L. E. 19 Eq. 171. 
 
 Ex parte Eyre, 44 L. T. (N.S.) 922. (/) See now the Bankruptcy Act, 1883 
 
 (d) Ante, pp. 10, 90. (4G & 47 Vict. o. 52), ss. 92, 93. 
 
 (e) White V. Wilt, 24 "W, E. 727. (A) Sec Ilealhy. Chadwick, 2 Pli. G49. 
 (/) Doc V. Ball, 11 M. & W. [,?,! ; (/) Sec Thompson v. Wchstcr, 4 
 
 Poll V. ro(7/tw«/er, 2 Coll, 70 ; Ware \. Drew. 028; If ore v. Gardner, L. K. 7 
 Oardner,L, 11.7 Eq. 317 ; Kent v. liilctj, Eq. 317 ; ct Kupra. 
 
 CO rerLoid Ilarkwickc in Il'^n^ v. .Shalkt] 2 Vcs. 17.
 
 WHO MAY BllING ACTIUX. 523 
 
 it was perfected Lefore tlie lieuriii-, and that the CuiiiL wnuld nut 
 listen to an objection so purely technical {m). 
 
 Under section 72 of tlic I'.ankruploy Act, 18G(), the jurisdiction 
 conferred on the Court of r.ankiu)itcy was concurrent and not 
 exclusive, discretionary and not to be invoked as of right (n). 
 With regard to the exercise of this judicial discretion, James, L..I., 
 in Ex imrtc Brovm (o), laid down tlie general i)rinciple tliat, when 
 a deed is impugned on the ground that it is void liy the opera- 
 tion of the bankruptcy law, not on a ground Mhich coukl have 
 been available to the bankrupt himself, the case is pre-eminently 
 one which the Court of IJankruj^tcy ought to decide itself, and 
 not to leave to the ordinary tiibunal (o). In such cases as 
 tliosc under 13 Eliz. c. 5, the trustee claims by a higher and 
 better title than the bankrupt himself, as he is a party to the 
 fraud, and therefore cannot himself avoid them {/>). 
 
 This general principle has been followed with a (pudiliaition 
 in cases where deeds were impugned under lo Eliz. c. 5, in 
 County Courts (q). The qualification was that, if either the 
 amount at stake was beyond the ordinary jurisdiction of the 
 County Court, or if serious questions of personal character were 
 involved, the judge ought to decline to try the case, and leave it 
 to be tried by action in the High Court of Justice (q). 
 
 It has been held that the jurisdiction conferred on the High 
 Court in bankruptcy (r) liy section 102 of the Bankruptcy Act 
 of 1883 (-s) is exactly the same as that which was conferred on 
 the old Court of Bankruptcy by the corresponding section 72 
 of the Bankruptcy Act of 18G9 (t), so far at least as relates 
 to proceedings in bankruptcy in the High Court. The exer- 
 cise of the jurisdiction in County Courts is restricted by a jiro- 
 
 (iii) CarricJc v. Ford, L. K. 4 Ch. 247, (7) Ex pari c Armliiif/c, 17 Cb. D. 13; 
 
 251. Ex parte J'ruc; 21 ("li. D. 553. 
 
 (») In re Loicenthal, 13 Q. B. D., per (/) Sec 4G & 47 Vict. c. 52, ss. 02, 03, 
 
 Cave, J., 241; Ex parte Reynolds, 15 and Uankruptcy IJiilcs, 1KS3, 5(E.). Tho 
 
 Q. B. D., per Bictt, L.J., 190. Act of 18H;{ lepciils the Act of 18C9 ; st-c 
 
 (0) U Ch. D. 148; and see Ex parte section 1(30 and sclicdulo 5. 
 
 Armitage, 17 Ch. D. 13. («) /" re Luwentlial. 13 Q. B. D. 238. 
 
 (;)) Ex parte Butters, 14 CIi. D., per (0 32 & 33 Vict. c. 71. 
 James, L.J., 267 ; Ex parte Armita;/c, 
 17 Ch. D. 13.
 
 524 UNDER 13 ELIZ. c 5, 
 
 vision (?/) tlmt any claim not arising out of the l)ankruptcy uliicli 
 might have heen enforced by action in the High Court shall 
 not be tried in the County Court unless either all the parties 
 consent, or, in the opinion of the judge, the value of the money, 
 money's worth, or right in dispute is not over £200. 
 
 In general in The true rule seems now to be that the trustee ought in 
 Court'."^ *"^ general to take proceedings in bankruptcy to avoid a settlement 
 unless there are special circumstances which render it expedient 
 to have the case tried by action in the High Court. If the 
 question is one for a County Court, it sliould only be tried by 
 action in the High Court, if within the provisions above 
 stated (a). 
 
 Wliere the settlor becomes 1)ankrupt during the course of the 
 action, it seems that this is no bar to the plaintiffs continuing 
 that action (v). 
 
 Is a corpora- There appears to be no express decision upon the point 
 loEliz. c. 5? whether a corporation is within 13 Eliz. c. 5, so as to be able to 
 avoid a settlement as fraudulent. 
 
 The preamble of that statute shews that it was meant to 
 extend to " creditors and others " (n-) ; and in law a corporation 
 may, of course, be a creditor. By the operative part of that 
 statute (x), every conveyance is avoided only as against " that 
 Ijcrson or j^ersons, his or their heirs, successors, executors, adminis- 
 trators, and assigns, and every of them," whose rights or remedies 
 are thereby interfered witli. T.ut the statute docs not extend to 
 a conveyance made upon good consideration and Ijonii lide to 
 " any person or persons, or bodies politic or corporate," not 
 having then notice of any fraud (y). 
 
 It is conceived that a coi|)C»ration is within the statute so as 
 to be able to avoid a settlement as fiaudiilciit, because bolli tlie 
 context of the section (c) and the general object of the statute 
 
 («) 4G & 47 Vict. c. 52, 8. 102 (1) ; ante, p. 523. 
 (v) Goldsmith v. Jhisscll, 5 T)e G. M. (<(') Appcndi.x No. I. 
 
 & G. 547, 553; Crosslcj; v. Elwurthy, (x) Section 2 ; ante, pp. G4, 1G3. 
 
 L. K. 12 Eq. 158; Tanqucmj/ v. liovdcs, (.'/) Section (5 ; ante, jip. 7H ct .seq. 
 
 I,. It. 14 Eq. 151 ; and see K. S. C. (1883) (•--) Sec the ubc of the Mord "bucccs- 
 
 ^J^■^\ i7_ sors," Ecction 1.
 
 WHO MAY liiaxcj ACTION'. 525 
 
 seem to require the word jtrr.^un to have its mure extumlud 
 sense (a). 
 
 It seems to liave l)2cn assumed in Li. ir. Mtuhhrrr (h), wli.-iv ^r company? 
 the point was not argued, that a coiniMMy is a cnMlii.ir wiihin this 
 statute; the same arguments apjily huili tu a corporation and lo 
 a company. 
 
 It is also an undccidi'd ]MMiit whcllicr tin; h'(|uidator of an cr li<imJntor 
 unregistered ((') company is \vii hill this statute; it is euu(vived "J,",'!;^,^^'!!'""'*'' 
 that, as lie is in llic ]H.silii.n of a trustee for the creditors of 
 the company of the; ])roi)erty l)elonging to the company at Hh- 
 date of the winding up, he woukl prohahly he lield within it ('/). 
 
 Where (<:) tlie hill was filed after the settlor's death it lias Action not 
 heen argued that the executors, and not the creditors, ought by 'executor "or 
 to file the bill, on the principle that the creditors of A. cannot »''"''»''""'*«'• 
 maintain a hill against the possessors of assets of ?>. in which A. settlor, 
 is interested (/). This is clearly not so (f/), for it is only as 
 against creditors that property fraudulently settled is general 
 assets (h) ; and the settlor's executor or administrator does not 
 represent the settlor's creditors, but the settlor, and against him 
 and his representatives the settlement is binding (i). The same or committee 
 principle applies to the case of the connnittee of a settlor who ° ""''*'*^- 
 has become a lunatic (Ic). 
 
 If the settlor is alive, and not a bankrupt, at the time the action Actions on 
 
 ^ . behalf of wlf 
 
 is brought, it should be by a creditor or creditors on behalf of him- ami all oiher 
 self or themselves and all other the creditors of the settlor (/). WhenVotilor 
 
 is alive. 
 
 If the settlor is dead at the time the action is brought, when settlor 
 
 is) (lead. 
 (o) 2 Inst. 722 ; Maxwell, Stat. 292 ; (g) Ilawes v. Leader, Cro. Jac. 27li ; 
 
 Pharmaceutical Society v. London and Lnsh v. WilLinson, 5 Ves. 3HI ; In re 
 
 Provincial iSupphj Association, 5 App. Maddcrer, 27 Ch. D. 523. 
 Cas. 857; and sec J'uinp. Fr. Cony. («) Heo pp. GO, 70. 
 
 (Amer.), 2nd ed. 494. (/) Sec pp. 403, 404 ct seq. 
 
 (b) 27 Ch. U. 523. (Ic) Culman v. Crohcr, 1 Vcs. .Tun. 100. 
 
 (c) Companies Act, 1802 (25 & 20 Vict. (/) GoUhmith v. IhtsscU, 5 1 )c ( i . M . & (i . 
 c. 89), ss. 203, 204. 547 ; Crossky v. Elworthy, L. IJ. 12 Va\. 
 
 (d) In re Marine Mansions Co., L. II. 103; Mackay v. Douylas, L. I!. 14 Va\. 
 4 Eq. 001, GIO ; Waterhotisc wJamieson, 100; Cornish v. Clarl; I,. H. 14 Va\. 
 L. K. 2 So. H. L. at p. 38 ; i?/«c/.- (t C'o.'s 184; In re Johnson, 'li.) Ch. D. aS'J, 
 Case, L. R. 8 Ch. 202. S. C. 51 L. J. (N.S.) Ch. 503 ; 11. S. ('. 
 
 {e) Lush V. Wilkinson, 5 Ves. 384. Ord. 10, r. 9. 
 
 (./") Ehnslie v. McAulay, 3 Uro. C. C. 
 024.
 
 onginatin 
 sunimons 
 
 52G UNDER 13 ELIZ. C. 5, 
 
 it should be by one or more creditors on behalf of liinisolf or 
 themselves ant! all other the creditors of the deceased settlor 
 for administration of his estate (m). 
 
 If such administration action is not brought bj'- a creditor 
 who seeks to set aside a settlement made by the deceased settlor, 
 any creditor who impeaches such settlement may do so in that 
 action by taking out a summons (n), or by obtaining leave to 
 attend the proceedings under the judgment; and may have in- 
 quiries made as to such settlement (u). 
 
 Whether by It does not appear to have been yet decided whether a creditor 
 
 of a deceased settlor can impeach a settlement of that settlor 
 by an originatinr/ summons {'p). The question whether the 
 settlement is valid or void, it will be observed, is primarily a 
 question between the creditor, the trustees of the settlement, 
 and the parties interested thereunder; and not between the 
 creditor and the executors or administrators of that settlor, as 
 seems contemplated by the order. 
 
 It is conceived, however, that a creditor may so impeach 
 such settlement, as under the Judicature Acts he might have 
 done, by a summons in an administration action {q). Of course 
 the creditor's summons must be on behalf of himself and all 
 other the creditors of the settlor, as in an ordinary action {q). 
 
 This rule appears now to apply even if the plaintiff has a 
 judgment or lien on the property comprised in the deed (/■), or 
 if the deed is impeached as executed in order to defeat the 
 plaintiff's particular debt (s). The Judicature Act, 1875, has 
 not affected the right of a judgment creditor to priority of pay- 
 ment (lut of the assets of an insolvent settlor deceased (t). 
 
 (»?) AfJames v. Jlallett, L. R. G Eq. (»•) Goldsmith v. ItitsseU, 5 De C. AF. 
 
 473; Tai/lor v. Coenen, 1 Ch. D. G3G ; & G. 5^7 ; Jevlyn \. Vaufj/han, Z Drew. 
 
 Mtddleton v. Follock, 2 Ch. D. 104 ; Jn 419 ; Itcesc liiver Silver Mining Co. v. 
 
 »-e J/aJfZever, 27 Ch. D. 523. Atwell, L. I{. 7 Eq. 347; Cornish v. 
 
 («) Middhton V. roUocl; 2 Ch. D. 104 ; Clarhe, L. R. 14 Eq. 184. 
 Jn re llidler, 22 Ch. 1). 74. («) Blenhinsopp v. Blenhinsojyp, 1 Do 
 
 (o) E. S. C. Ord. 55, rr. 3 (a), (g), 10. G. M. & G. 495 ; Adamcs v. Halktt, L. \\. 
 
 (jj) Middleton v. Pollocl^, 2 Ch. D. 104 ; G Eq. 4G8, 473 ; 'ante, p. 72. 
 In re Jiidler, 22 Ch. D. 74; E. S. C (t) Section 10; Smith v. Morgan, 5 
 
 Ord. 55, rr. 3, 5 15., G; and sec J!c C. R U. 337; In re Mctfigi, 20 Ch. D. 
 
 lierheUy, L. E. 19 Eq. 4G7. 345 ; Seton, 4th cd. 815-817. 
 
 (7) l)..nicl, Gtli eil. 991 ; ant?, p. 525.
 
 WHO MAY jmiXCi ACTION. ,'.,7 
 
 A creditor l.y elegit could l.ofore the Judicature Acts sue 
 111 e(inity und set aside a deed fraudulent aj?ain.st creditors, 
 although he could have recovered at law (h), an.l although there' 
 was sullicient to pay him aliunde, and he woidd nut have he.-n 
 delayed l.y an iiii^uiry to that efrect (r). 
 
 It seems that a plaintilt is not prevented iY..iu .M.unnuuing n.i.tifr 
 an action as a creditor because he has an ecpiitahle moit-a^,,. i,y •^;;;'^',''7""' 
 deposit of title deeds and nienioranduni of agreement, ami also '""'"^"" 
 brings such action as a purchaser under 27 Kliz. c. I (in). 
 
 It lias been said by Lord Thurlnw, in Coleinan v. Croker (.;). Creditor nod 
 that in order to take advantage of the statute 13 FbV <• ^ pftnowl.nvc 
 a creditor must put himself in a situation to complain by getting j"-'^ ''''" "" 
 judgment at law for his debt. This has, however, since been '"''^''"' 
 decided, before tlie operation of the Judicature Act, 1873 (y), to 
 be unnecessary ; and a creditor must now simply prove his debt, 
 of which, of course, a judgment is proof, in order to entitle him- 
 self to proceed under this statute. 
 
 So, too, a creditor need not now obtain a charging order (r) 
 on shares or stock comprised in the deed, or a garnishee order 
 on debts, or any lieu on the property therein, lu.r need leasehold 
 property be delivered in execution, in order to entitle such credi- 
 tor to take proceedings under 13 Eliz. c. 5 («). 
 
 A voluntary settlement could not lie impeached as void Cmsn-bill in 
 against creditors hy a cross-bill filed in a foreclosure suit in '"'"■.'■'^■.'"■'""^' 
 
 suit ini]H-ncli- 
 
 whicli tlie original bill prayed that the surplus of the sale of tlie '"^' K«-til<-ii..M,t 
 property, after satisfying the mortgage, might be invested upon mnP' '" '"^ 
 the trusts of the voluntary settlement. Such a ]trayer did nut 
 give the creditors a right to file the cross-bill, wliich was in (Ik- 
 
 ()/) Bennett v. Ilusgrove, 2 Ves. 51; (y/) Section 24; GoUlxmith v. J.'usxih', 
 
 sec LOW It. S. C. Ord. 43 ; Bankruptcy 5 De G. M. & G. 547 ; Jtctui^ liirrr 
 
 Act, 1883 (46 & 47 Vict. c. 52), s. 140. iS'dvcr Minlmj Co. v. Ahcell, I.. 1{. 7 V.>i 
 
 {0) Chamleji v. JJunsaiiy (in II. of L.), 350, 352. 
 2 Sch. & Lef. 714. (r) See Seton, 4th od. 3(»5 et seq.; 
 
 (w) Lister v. Turner, 5 Ilarc, 281 ; R. S. C. Ord. 40. 
 see post, p. 549. (a) 27 & 28 Vict. c. 112; sec Soton, 
 
 (.)•) 1 Ves. Jun. 100; see ColUns v. 4tli ed. 1141-1145; lircnc Hirer .Silver 
 
 Burton, 4 De G. & J. 012 ; Wi;/gins v. Jliniiuj Co. v. Atwcll I.. U. 7 Vai 317, 
 
 Armatrong, 2 Johns. Ch. Ca. 144. 352.
 
 52S DEEDS ONLY SET ASIDE 
 
 nature of a defence to the original bill ; for non constat that 
 there ever Avouhl ho. a surplus ; and, if there were, he who 
 claimed it against the settlement was before the Court, and he 
 should have waited till the existence of the surplus was ascer- 
 tained. Until then it was a purely speculative bill, putting the 
 volunteers to support a settlement when non constat they would 
 ever derive any benefit from it (h). 
 
 Court merely The general i)rinciple on which the Court acts with regard to 
 atide.'^ the remedy it gives to creditors under 13 Eliz. c. 5, in such an 
 
 action, is simply to declare the settlement fraudulent and void 
 
 as against the creditors (c). 
 
 It leaves the creditors to take such other proceedings as may 
 be necessary to enforce their rights against the property the 
 subject of the settlement. 
 
 So Lord Hardwicke said (r?) : " I do not know, in the case of 
 fraudulent conveyances, tliat this Court has ever done anything 
 more than remove such fraudulent conveyances out of the way ; 
 nor any instance of a decree for sale ; but equity follows tlie 
 law, and leaves them to their remedy by elegit without interfering 
 one way or the other." 
 
 This decision has been followed in Eccse liiver Silver Mining 
 Co. V. Atwell ; it was there laid down that all the Court does is 
 to set the deed aside, and leave the creditors to take some 
 independent proceedings if they wish to have execution against 
 the property comprised in the deed (c). 
 
 Ilow far such A Settlement impeached by creditors under 13 Eliz. c. 5, is 
 sctt^lemcnt IS ^^^i^ jg^ig^j^gj yQJj ^^g against creditors. For every other pur])ose 
 
 it is good ; or, if the claims of creditors are satisfied, the surplus 
 
 is bound by the trusts of the settlement (/). 
 
 {h) Mamlers v. Mandtrs, 4 Ir. Va\. (f) L. U. 7 Eq. 347 ; Corviih v. 
 
 434, 440; Jloltlernens v. Himldn, G .Jnr. Clark, L. K. 14 Eq. 184; Kcton, 4lh ctl. 
 
 (N.S.) 928, S. C. affimicd 9U3 ; and sec 13G9-1371. 
 
 nowJud.Act, 1873, 8. 24 (3),andl!. S. ('. {f) Corimh v. Clarh, L. R. 14 Eq, 
 
 Ord. 19 r. 3. 184 ; Tanqueray v. Boiiics, L. R. 14 Eq. 
 
 (c) CorniHh V. ClurTc, L. R. 14 Eq. 184 ; at p. 157 ; Tai/lor v. Cocncn, 1 Cli. D. 030 ; 
 Taylor v. Coenen, 1 Cli. D. at p. 042. Jii re Madderer, 27 Cli. D. at p. .029 ; 
 
 (d) Higyins v. York Buildinys Co., 2 ante, iqi. 08, 09, 403, 404. 
 Atk. 107. 
 
 V(»I
 
 LTNDER STATUTES OF ELIZA iU ill I. 5 2 'J 
 
 So a settlcmont inipoacliod l)ya siibseiint'iil i.urdia.ser mulcr 27 
 Eliz. c. 4, is only declared void as apiainst that jiiircliaser; the 
 sottleinent is only avoided to the extent of tliat purchaser's 
 interest (g). 
 
 So, too, Lord llardwieke, in U'kj'Jui^ v. York lhnld\nii>i Cn. (//), Profit «?. 
 refused to order an account of profits received l.y the; voluntar}' S« /ir* 
 settlor or his grantees since the fding of the hill ; hut see Jilni- '7'"-''";'", , 
 
 o J decreed buck. 
 
 hmsopp V. Blcnhinsopi) (i), where such an i.rdcr was made af,'aiust 
 
 the trustees of the settlement. 
 
 In the same way as to deeds wliicli are franihdent under the Samoa* in 
 statute 27 Eliz. c. 4, the Court siniidy declares them void jus '"' '"''"^ ' ' ' 
 against the subsequent purchaser, and leaves Loth parties to their 
 
 legal rights and remedies. 
 
 It has never been held tliat a purchaser could come into a Cnnccllnii..n. 
 Court of equity to have a voluntary deed delivered up to be 
 cancelled {k). 
 
 If the action be one for specific performance, tlie Cnuri 
 declares the voluntary settlement void as against the subsequent 
 purchaser, and makes an ordinary order for specific jierform- 
 ance (/) ; and trustees under such settlement will in such a 
 case be directed to convey, or concur in conveying, the ]~)roperty 
 to the purchaser, or as he shall direct (//'). 
 
 Where a deed is declared void against creditors, and the if? Kliz. c. 5. 
 
 1 /- -n ^ ■ ^ Fratuiulcllt 
 
 settlor IS not a bankrupt, the Court will not order it to be deed not 
 delivered up to be cancelled if any property passed liy it, 1'"^ t,^ c„',[^i.eiK.|i ;" 
 will direct the trustees or orantees under it to do and (.-oncur in i"^'i«-'';'.v 
 
 ° j)iw»ed liy It. 
 
 all acts necessary for making the property therein comjiriscd 
 available for creditors (n). The reason of this is that the 
 grantees are entitled subject to the rights of creditors, and 
 
 {(j) Dolphin V. Ayhvard, L. 11. 4 II. L. (m) WiUath v. Jjiish,/, 5 Bcftv. 103 ; 
 
 499, 500 ; In re Walhampton Estate, Dahinr/ v. Whimper, 20 Bciiv. 5G8 ; Seton, 
 
 2G Ch. D. 393 ; ante, pp. 208, 404. 4th cd. 1374. 
 
 {h) 2 Atk. 107. («) Bott V. Smith, 21 Tcav. 511, 517 ; _ 
 
 (/) 12 I'.eav. 568, S. C. 1 Do Cr.^l. & G. Beese Bircr Silccr Miiiimj Co. v. Aticcll, 
 
 4G9. L. I!. 7 Eq. 347, 352 ; Cornish v. Clark, 
 
 (k) DelloghtonM. Money, 'L.Vx.lE([.\b^. L. W. 14 Kq. 184; hi re Maddcrcr, 27 
 
 (0 Price V. Jenhim, 4 fli. 1>. 48.'), Cli. D. at )>. 529. 
 
 8. C. 5 Ch. D. 619. 
 
 M M
 
 530 
 
 CANCELLATION OF DEEDS. 
 
 Surplus 
 applicable 
 to uses of 
 settlement. 
 
 Deed when 
 cancelled. 
 
 Recovery. 
 
 AVliere settlor 
 is an outlaw. 
 
 Iveconveyance 
 when 01 dereJ. 
 
 there might be a surplus after paying all the creditors (o). And 
 where a deed is set aside by creditors before all the assets are 
 got in, the Court will consider the assets, when realized, as still 
 subject to the settlement, if there be any surplus after meeting 
 all the settlor's liabilities (^j). 
 
 "Where, however, no property passes or is intended to pass by 
 the deed, or the grantor is bankrupt, the Court will order it to 
 be delivered up to be cancelled, and has full jurisdiction to do 
 so (q). 
 
 Where a deed between several parties is set aside as void 
 against the creditors of one of them, it will bo .set aside entirely, 
 if the effect would otherwise bo to work an injustice to the 
 other parties to the deed, innocent of tlie fraud ; for, if those 
 other parties were not aware of the fraud on creditors, the 
 state of circumstances on which they entered into the contract is 
 altered, and they would be wronged by a partial avoidance of 
 the instrument («), and in such a case the Court can order the 
 deed to be cancelled {t). 
 
 The Court has no power to set aside or reverse a recovery 
 to bar an estate tail because the deed to lead the uses was 
 fraudulent within the statute, for the recovery enures neverthe- 
 less to bar the estates of those in remainder (r). 
 
 "Where a settlor has been outlawed after making a settlement, 
 void against his general creditors, nu property passes at law to 
 the Crown (for the settlement is good against the Crown); and 
 there is, therefore, no need for a creditor, before impeaching the 
 settlement, to obtain a conveyance of the legal estate from the 
 Crown, which only takes subject to existing rights {it). 
 
 As soon as a settlement is declared void against creditors. 
 
 (o) Barton v. Vanhcythuijsen, llllarc, 
 134; CrackneUv.Janson, 11 Ch. U. 14; 
 Shurmur v. tSedyivick, 24 Ch. D. 597. 
 
 {p) French v. French, G De G. M. & 
 G. 95, 103 ; ante, p. 404. 
 
 (q) Burling v. Blahopp, 29 Beav. 417, 
 421 ; Tarleton v. Lithhll, 17 Q. B. 390, 
 414, sec S. C. in Chancery, 4 De G. & 
 Sm. 540; Seton, 4th ed. 1309. 
 
 (r) Tarleton v. Liddcll, 17 Q. B. 390, 
 414, sec S. C. in Chancery, 4 De G. & 
 Sm. 538, 540. 
 
 («) Tarleton v. Liddell, 17 Q. B. 390 ; 
 and see Davidson v. Mussel, 2 Dick. 
 701. 
 
 (<) Tarleton v. Liddell, 17 Q. B. 414. 
 
 (w) Goldsmith v. limsell, 5 De G. M. 
 & G. 547-555.
 
 RECON VEYANCE. j 3 1 
 
 it becomes absolutely void as far as it is impeaclied (r). Whoiv, 
 therefore, a deed is absolutely set aside for fnuid, it is incorrect to 
 order a reconveyance by the person dainiin- under it (//•) ; but 
 where the estate has been conveyed to a third person, as an in- 
 strument, not privy to the fraud, or if tlic deed is set aside ui)on 
 paying so much money, then, till payment, the estate remains, 
 and a reconveyance is proper {.c). 
 
 It seems doulitful whether registration of an action to set aside Ub pendens, 
 a deed appointing real estate to such uses as A. should appoint, 
 and in default to B., as void against creditors of T*. as a lispnuinis, 
 is a sufficient protection to tliem (//). 
 
 The exercise of a power of appointmenl by a delAor in a 
 deed, by whicli the estate is limited to him in default of appoint- 
 ment by him, in favour of a purchaser for value will lie restrained 
 by injunction at the instance of a creditor wlio impeaches tliat 
 deed as void against him (/j). 
 
 The Courts of equity have always had jurisdiction in matters foncurrent 
 of fraud (a), and have always exercised a concurrent jurisdiction emli'ty'^and ° 
 with the Courts of law on these statutes of Elizabeth on '""^ ''" *''? 
 
 xtntutcs of 
 
 fraudulent conveyances. Equity, in fact, " determined touching Elizabeth. 
 charities and frauds long before the making of any statute con- 
 cerning the same " (h), and the principles of decision at law and 
 
 equity must be taken to be the same (e). 
 
 A Court of equity, it has long been settled, could decree a 
 deed fraudulent under these statutes without any trial at law (</); 
 
 (y) Sec O'Connor v. Bernard, 2 Jo. (y) JJeyftts v. lluUocl.-, I.. K. 7 K] 
 
 (Ir.) 654, 698 et seq. 391. 
 
 (?r) Sec Tarlctonv. Liddell, 17 Q. B. («) Sec iSowerb;/ v. Wardrr, 1 Cox, 
 
 390,414; Davidson \. Itussd, 'J Dick. 268; CoU v. WuoUaMon,-! V.WmB. !.'»», 
 
 701; Jlurrai/ v. 31unn, 2 Excli. 538, 156; Stent v. naihti, ibid. 220, 3 III. 
 
 541; Attorney-General v. Majdahn Com. 437,439; Chesterfield wJtinssni, 
 
 College, 18 Bcav. 255 ; Smith v. Ilurst, 2 Vcs. 125, 155 ; Hill v. Lane, L. \\. 
 
 10 Hare, 30; see Seton, 4th ed. 1368, 11 Eq. 215. 
 
 1371 (p) JTunyerford v. Earlc, 2 Vern. 
 
 [x) Per Lord Loughborough in Bates 261-2. 
 
 V. Graves, 2 Ves. 295. See also Stmij} v. (c) Bates v. Grave*, 2 Vcs. Jun. 29.'» ; 
 
 Galy,2 De G. M. & G. 623; Attorney- Adames v. JIaUctt, L. W. 6 % 4G8 ; 
 
 General v. Maydalen College, 18 Bi-av. Bumcl v. Jfaminond, 1 Atk. 15 ; JIMt 
 
 223, 255 ; Vorley v. Cooke, 1 Gifl'. 230, v. JMl, 1 Ccx, 445. 
 
 235-7 ; Tarleton v. Liddell, 17 Q. B. 390, ('/) While v. Jlttmy, Tree. Ch. 13-l.j. 
 408. 
 
 M M 2
 
 532 ACTION UNDER STATUTES, 
 
 and even M'here the conveyance was not to trustees, Lut direct 
 to the volunteers (c), the fraud was as well examinable and 
 triable by an equity judge as by a jury at law, fraud and trusts 
 being almost the only things that tliis Court formerly took cog- 
 nizance of (/) ; and even in cases where the settlement could bo 
 deemed fraudulent at law, a man might come into equity for 
 the sake of further relief (g). 
 
 In BrUjht V. Eijnon (Ji) Lord Mansfield, C.J., said that fraud 
 and covin might in judgment of law avoid every kind of act, 
 and that what circumstances and facts amount to such fraud 
 or covin was always a question of law. Courts of equity and 
 Courts of law had a concurrent jurisdiction to suppress and 
 relieve against fraud. JUit the interposition of the former was 
 often necessary for the better investigating truth and to give 
 more complete redress. 
 
 Where remedy As to cascs Under these statutes where the plaintiff might have 
 atkl^ ^^^ recovered at law, Lord Hardwicke laid it down (/) that, if it 
 was merely a case of constructi^'e or presumed fraud, equity 
 would leave the purchaser to his remedy at law ; but that when- 
 ever the conveyance was attended with actual fraud, though he 
 might go to law by ejectment and recover the possession, he 
 might come into a Court of equity to set aside that conveyance. 
 
 Under Judi- The Chancery Division of the High Court of Justice (/.) had 
 
 action usually ^^^^ following among other business expressly assigned to it by 
 ii./ji.ancery tlie Judicature Act, 1873 (/) :— 
 
 Division. ^ ^ 
 
 The administration of the estates of deceased persons ; 
 
 Tlio dissolution of partnerships, or the taking of })artner- 
 ship or other accounts ; 
 
 The redemption or foreclosure of mortgages ; 
 
 (e) Towncnd v. Toluir, L. E. 1 C'li. (A) 1 Bun-. .^.95. 
 
 446, 458. (/) In Bcnnet v. Mangrove, 2 Ves. 
 
 (/) Leuhener v. Freeman, Freem. Cli. 51-2. See Itamsldre v. Bolton, L. li. 8 
 
 23G-7 ; Prcc. Ch. 105. Eq. 294. 
 
 {tj) White V. ,'iiuiHom, 3 Atk. 411; (/) .Judicature Act, 187.3, ss. .3, 4, 10, 
 
 J'.eniut V. Miisf/rove, 2 Vck. 51, .'jii ; 24, 32; Ord. l(j, Dec. 1880; see Wilson, 
 
 Arundel V. I'lnjijis, 10 Ves. 148. 4tli cd. 42-40. 
 
 (/) Sfctioii 34. See Jicxjcrs v. Jones, 7 < 'It. I), at [>. .399.
 
 IX \\]1A'1' I)1\1S1(»N. 533 
 
 Tlio raisiiic; of yioitioiis nr dlln'i' cliar.Lics (ni Imid ; 
 
 Tlio sale oi' (lisliibuLiun (if llu- proceeds of property huIj- 
 ject to any lifu or cliarge ; 
 
 The execution of trusts, cliaritahlc or private; 
 
 The rectification, or settin*,' aside, or cancelhiti(jn nf deeds 
 or other written instruments ; 
 
 The specific performance of contrails lietwcun vendors 
 and purchasers of real estate, inchiding contracts for leases. 
 
 The partition or sale of real estates. 
 
 The three Common Law Divisions had assigned to tliein all 
 causes and matters pending in their respective Courts at the 
 commencement of the Judicature Act, 1873 ; and also all causes 
 and matters witliin their respective coxhisirc cognizance if the 
 Judicature Act, 1873, had not passed (??i). 
 
 The action must lie Ijrouglit in the Queen's IV'Uch Division, 
 if it was such as formerly would liave Leen within tin- exclusive 
 cognizance of any of the three Common Law Divisions, which 
 are now merged in tlie Queen's Bench Division. 
 
 It is, therefore, conceived that, in general, nn action under these 
 statutes should be hrought in the Chancery Division (//), 
 
 In any other case the plaintiff may choose tlie division in which 
 to Ijring his action (o). 
 
 And where the action is brought witli i he express ]iurpose of Fmu.l must 
 setting aside a settlement, there must lie an allegation in the 
 statement of claim that the settlement was fraudulent {j>'). 
 
 Ill pleading the release of a claim to a litigated estate as a I'lcading 
 valuable consideration to support a deed, it is not necessary to "■ *''"^' 
 shew what was the value or nature of the claim released (q). 
 
 (m) JuclicaUirc Act, 1873, s. S4. U. S. C. Ord. 10, rr. 15, 22; Dar;/ v. 
 
 («) Section iJ-t; sniirn, pp. 522 ct Hcq. Giirrdt, 7 Ch. D. 47.1, 4S0 ; U'nlliv;,. 
 
 (o) Judicature Act, 1873, s. 11 ; K. S. C. ford v. Mutual .St-c/tri/, 5 App. ( 'as. 685 ; 
 
 Qi-j 5^ J. 5. Kerr, Fraud & Mis. 2i;d ed. 425 ct 
 
 (p) liichardwn v. IJorton, 7 IVav. scq. 
 
 112; and see Hohkrncs.i v. L'aidhi, {,j) JHIl \. lUaliop of Erctcr, 2 TannU 
 
 Jur. ^N'.S.) 928, S. C afliiuicd 'JU3; Clt ; aud bcc 11. y. C. Ord. I'J, r. 15.
 
 534 
 
 DEED PART GOOD, PAKT VOID. 
 
 Cretlilor tak- 
 ing benefit 
 not estopped. 
 
 Settlement 
 good in part 
 a'lJ void in 
 part. 
 
 A creditor is not estopped from briugiiig an action to set aside 
 a deed by taking a benefit under other parts of it whicli he does 
 not impeach (r). A deed may be good in part, and as to part 
 fraudulent and void against purchasers or creditors (s), althougli 
 the creditor attempts to upset the whole transaction (t). 
 
 There can be no doubt that some limitations in a settlement 
 may be voluntary and void against creditors or purchasers, while 
 others in the same settlement are on valuable consideration and 
 binding. This is evident from tliu many cases in which it has 
 been decided that limitations to collaterals (unsupported by any 
 consideration besides the marriage) are voluntary, whereas the 
 interests of the husband, wife, and issue are supported by a high 
 and valuable consideration («). 
 
 As hdween the ixtrties 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 {vS). Still, it 
 seems that, where purchasers or creditors are concerned, no regard 
 will be paid to circumstances of that nature ; but any limitations 
 in the deed which, taken by themselves, must be considered volun- 
 tary, will be none the less voluntary and void because they form 
 part of the same agreement {o:). Eeferring to this, Piolle, C.-T., 
 
 (?•) Frtncli V. French, 6 De G. M. & G. 
 95 ; Nealc v. Dmj, 28 L. J. (N.S.) Ch. 45. 
 
 («) Style, 428 ; so also in marriage 
 settlements where the limitations to hus- 
 band, wife, and issue are good, but 
 remainders to collaterals may be volun- 
 tary and void ; sec ante, pp. 342 et soq. 
 
 [t) Ihmcl V. Hammond, 1 Atk. 13, IG, 
 West (t. II.) 530. For form of decree, f-ce 
 Keule V. />»/, 28 L. J. (N.S.) Ch. 47 ; 
 Seton, 4th ed. 1.371. 
 
 {ii) Sec ante, pp. 342, 357 et sc(|. 
 
 (r) Per Lord llardwicke in t^tcpliens v. 
 Trueman, 1 Vcs. 73 ; Pcnn v. Lord Bcdti- 
 more, 1 Ves. 453. 
 
 ("•) Stephens v. Trueman, 1 Ves. 
 
 73 ; Gorinrj v. Xash, 3 Atk. 186, 188-9 ; 
 Vernon v. Vernon, 1 Bro. P. C. 267 ; 
 Lech mere v. Carlisle, 3 P. Wms. 211, 
 222-3 ; JMe v. Lamh, 2 Eden, 292 ; 
 Davenport v. Bishopp, 2 Y. & C. C. C. 
 451, S.C. 1 Phil. 698; C'amphell\. Ingilhy, 
 21 I5eav. 567, S. 0. 1 De G. & J. 393 ; 
 IJrenan v. JJrenan, 2 Ir. R. 2 Eq. 266, 
 321 ; Wollaston v. Tribe, L. P. 9 Eq. 44 ; 
 and see ante, pp. 275, 391, 392. 
 
 (./•) Lane, 22 ; Osgood v. Strode, 2 P. 
 Wms. 245 ; Johnson v. Lcfjard, 3 Mad. 283, 
 S.r'.6 jr. & S. 66 ; Cormiclc v. Trajniud, 
 6 Dow, P. C. 60; ante, p. 342; not- 
 withstanding White V. Stringer, 2 Lev, 
 106.
 
 MARSHALLING. 535 
 
 said {y) " a deed may Ijc fraudulent in ].art, and good in part, 
 and so it was adjudged in the case <>f one Lydal" (z). 
 
 So also in a sale for value, a limitation or arrangement 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 subseriuent purchasers {a) ; but of course it is 
 different where the way in which the money or other consideration 
 was settled fonued part of the consideration for the deed (b). 
 
 The doctrine of marshalling has been ajiplied in favour of Doctrine <.r 
 volunteers in several cases. So estates comprised in one mortgage apjlii J j,',"*' 
 will be marshalled in favour of a voluntary settlement, so as to '"T""^ "^ 
 
 ^ ' VolUDtCCIB. 
 
 throw the debt on the unsettled property (c). So where a man 
 died having partly exercised a general ptnver to charge £2000, and 
 the money raised was held assets for his creditors. Lord Ilardwicke 
 directed the personal estate to be first applied in payment of 
 debts, then the real estate descended, and then the 12000 (li). 
 
 Lut this principle does not, it is conceived, apjily as l»el\veen 
 two volunteers (c). 
 
 And, as it will not be a])]»lied to prejudiee third parties, .so 
 it will not be applied in favour of judgment creditcjrs to the pie- 
 judice of volunteers who claim under a prior voluntary settle- 
 ment. The Court will not interfere actively 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 Contribution 
 a voluntary deed has been carefully discussed in ihe Court of ],p][j",J" ""^^ 
 Appeal in Ireland, in the case of Kir v. Kcr (y), by Lord ()-II;iL'an ^';ij;,*';T' 
 and Lord Justice Christian. 
 
 ((/) Style, 428; and see Edu-ick v. Cli. o? ;//((/(■/» v. ^or, 32 ncnv. 118, com- 
 
 Caillnvd, 6 T. E. 420-1. inented on in Kcr v. Kir, 4 Ir. K. Kq. 15 ; 
 
 (.-) Probably Bcverkji v. flatacrr, 2 Anntri/v. Xcirm(iii,3'M...h{'S.i^.)Vh.7^9. 
 
 Roll. Rep. 305, eited in U'liiti: v. Urul.c, {(f) Baiii'on v. IIVi.v/, 2 Atk. 172. 
 
 3 ]^e\j (3 (f) J]oa::vi(in v. Johiuton, ,3 Sin). 377 ; 
 
 («) Frenchv. French, 6 Dc G. M. & G. but see Loiikis v. U'rltilit, 2 My. & K. 7fi;i. 
 
 95, and ante, pp- 86, 87 ; Xcak v. DoiJ, {/) J^olphin y.Jyliranl, L. R. 4 II. L. 
 
 28 L. J. (N.S.) Cii. 45. 502, 503, 505. 
 
 (b) Walc'jkld\. iJihhov, 1 CiilV. 4(il. (.7) 4 Ir. R. E.]. 15, reversing S. C. 3 
 
 (c) A\h\hjc V. Forbes, L. J. (N.S.) Ir. R. Eq. 48?.
 
 530 CONTRIBUTION. 
 
 Kcr V. Kcr. Ill that casG, 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 covenant for further assurance by K. only, and devised 
 his other estates. Tlie 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 voluntary grantee and certain formal parties 
 for contribution, 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. 
 
 Volunteer The principle upon which the judgments in this case went, was 
 
 aiui\vn]tn tli^t there is no real difference between a volunteer by deed and a 
 
 same position. Y^^l^uteer by will. Each volunteer takes u-hat his benefactor had, 
 
 and as he liad it. A devisee is liaUc to contribute with an heir 
 
 to the discharge of an incumbrance not the debt of the devisor {li). 
 
 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 liabihty to contribution would have existed if the same 
 When not (piestion had been raised between two voluntary grantees (t). It 
 tu oic.i . yfQyx\(\, seem, however, that there would be no liability to contribute 
 if the voluntary deed contained eitlier a covenant against incum- 
 brances or a covenant for quiet enjoyment {I). 
 
 lY'naliies The ord Section of the statute 13 Eliz. c. 5, enacts tliat all 
 
 lai.ler 13 Eliz. ^^_^^ evciy the parties to such feigned, covinous, or fraudulent 
 feoffment, gift, grant, alienation, bargain, conveyance, bonds, 
 suits, judgments, executions, and other things before expressed, 
 and bein,^- ])rivy and knowing of the same or any of them, which 
 shall wittingly and willingly put in ure, avow, maintain, justify, 
 
 (/t) Eyrev. Green, 2 Coll. 527. (/.) Kcr v. Kcr, 4 h: ]!. Ivj. 21, 34; 
 
 (i) Kcr V. Kcr, 4 Ir. 1!. Eij. at p. ?>\.. and sec JlalcH v. Cux, 32 Bcav. 118. 
 
 c. y
 
 PENAL CLAUSES, lloW COXSTllUED. 537 
 
 or (Icfoiul the same as true, &c., or sliall aliun or as.si;,'n any the 
 
 hmds, tenements, goods, leases, or other thin-s before meiitioiiea 
 
 to him or them convoyed as aforesaid, or any jiarL thereof, sliall 
 
 incur tlie penalty and forfeiture of one year's value of the said Forfi-ii ot.o 
 
 lands, tenements, hereditaments, leases, rents, commons, or other Ca" ^'''"*'' "' 
 
 profits of vv out of the same, and tlie whole value of the said Wlx.Ie valuo 
 
 goods and diuttc'ls, and also so much money, as are or shall jj^. '''" K"^- *"■'■ 
 
 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 fraudulent feoffment, &c., to be recovered in a Court of 
 
 record by action of debt, bill, plaint, or information, .^-e. ; and the 
 
 offender, being thereof lawfully convicted, is subjected to half a Half yoar'-. 
 
 year's imprisonment without bail or mainprise. luii-nboiimtut. 
 
 By 27 Eliz. c. 4, s. 3 (I), a penalty of one year's value of the land 27 Ellz. c. 4. 
 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 con\eyauce, &c., under 
 that statute. 
 
 It is a clear and fundamental rule in the construction of statutes The Bf. -it ui.r 
 against frauds that they are to be liberally and beneficially coujarui-d!^" ^ 
 expounded (m) ; and these statutes of Elizabeth, it has frequently 
 been laid down, are to be so construed for the suppression of 
 fraud (ii), in such a way as to repress tlie mischief aimed at and to 
 advance the remedy (0). Still, it has been several times observed 
 that, in considering whether a conveyance is fraudulent within 
 these statutes, the penal clauses are to be taken into considera- 
 tion (2)), so as to narrow their operation. 
 
 It is an undecided point whether this general rule of construction rciml cIjium.«, 
 applies to the penal clauses of tliese statutes. It is conceived, coastniwl. 
 
 however, that those clauses which impose penalties upon persons 
 
 (/) Post, p. 542. 1;J2 ; ante, p. 1 ; Wilbcrforco, Stat. 233- 
 
 (m) Girton v. C'liai»2>nci/s, 1 Bing. 2'.U. 
 201. {o) Ki- parte Pearson, L. I{. 8 f'li. 
 
 ()() Cadofjan v. Kennctt, 2 Cowp. 434 ; 672, 073. 
 Bulloch \. Thome, ¥. lloo. Q,lb \ Pauncc- (/*) Uy Lni\l JI.'insfieKl, in 7)oc v. 
 
 foot V. Blunt, cited 3 Hep. 82 a ; Ilorsman Jtoiit'.alf/c, 2 Cowp. 710 ; ami l^nl Jualico 
 
 V. Gibson, Fortesc. 32-34, Plowd. 30 b; Turner in Ollivcr v. Kiny, 8 Dc CJ. M. & 
 
 Barton v. Vanheijthuysen, 11 Hare, 120, U. 110, 117.
 
 5S8 UNDER STATUTES OF ELIZABETH : 
 
 must be construed strictly {q); and it does not appear to be 
 necessary that the whole of a statute, which is partly remedial, 
 and partly penal, should be construed upon the same principles (?•). 
 
 A person is liable to the penalty, under either statute, if he has 
 been party or privy to such feigned, covinotis, or fraudulent feoff- 
 ment, &c., and if he has wittingly 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 cdso liable to the penalty under 13 Ehz. c. 5 {t). ; 
 so that a sale over to a bona fide purchaser wdll not exempt the 
 parties to a fraud on creditors from the penalties attached to it. 
 
 Penalty only Although Lord Eldon said (w), " It is true the construction put 
 actual fraiul. ^pon both thcsc Statutes is singular ; that a man paying what in 
 other cases is called an obligation of nature, should be considered 
 as within the penalties of these Acts," the case of Mcux v, 
 Hoicdl {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., contri^-ed to delay, hinder, or defraud, 
 the penalty is only directed against " such feigned, covinous, or 
 fraudulent feoffments," &c. 
 
 Constructive fraud, under these statutes, is the result of many 
 judicial decisions, and is an artificial meaning assigned to the words 
 of the statutes, and not their plain and natural meaning (vj). 
 
 In cases of constructive fraud, if the conveyance is voluntary, 
 it is void, but, if not, it is good. It can hardly bo argued that 
 the persons entitled under the settlement would become liable 
 to the penalty by putting in ure or maintaining it for the purpose 
 of deciding a question which they had no other means of ascer- 
 taining — viz., whether the settle nu-nt was voluntary and therefore 
 
 (</) Girton v. CIuiiiijiuci/k, 1 Bing. 2(.)1 ; (t) Not so under 27 Eliz. c. 4 ; ante, p. 
 
 llaidcaslle, Stat. 249 ct seq. ; Nichols v. 637 
 
 Jlall, L. K. 8 C. P. 320 ; JJyl^e v. Elliott, (v) In l\dvcrtojt v. I'ulvertoft, 18 Vcb. 
 
 L. K. 4 P. C. 101. 00-1. 
 
 (r) "NVilberforcc, Stat. 233; and see (r) 4 East, 1, G-7, 11, 3 Com. Dig. 
 
 Bores V. Booth, 2 W. 131. 122G. 207 ; ai;d kcc Ji'oe v. Milton, 2 Wils. 3id 
 
 («) HardcaBtle, Stat. 203-2.55. cd. 358*. 
 
 (if) Ante, jip. ;;j .j, 1 1 ; pf. ii. cli. ii. cli. iii. : pt. iii. cli. i.
 
 INTERROGATORIES. 539 
 
 conslnictively frriiululeiit, or Avlicther they were law fully ciiliikMl 
 uiuU'i' it. 
 
 The same arguiiicnt sei-nis to apj^ly ^vith cvt-ii uiuiv Unxc t.. :i 
 case where the voluntary grantees have hona liile and for value 
 assigned the property. 
 
 The only direct authority on the point, it appears, is to be found 
 in Jones v. BouKer (x), where Sir James J^yre said (//), " Tho 1 :j 
 Eliz. is a wholesome law, plainly penned, and I wonder how artilicial 
 reason could puzzle it. An artilicial 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." 
 
 It has been made a question whether the rule that a defendant f^nn dufcndnnt 
 cannot be compelled to answer interrogatories the replies to which Hwer any in- 
 might expose him to indictment, penalties, or forfeiture (z), applies •*-'"^e"*''"*-" <" 
 
 to cases of fraud under 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 knowledge of the fraud {n), the 
 setting aside a voluntary deed does not necessarily imply that the 
 persons maintaining it were parties or privies to the fraud, and 
 therefore is not within the rule as to compelling answer. 
 
 But the rule is a very strict one — namely, that no pcrso nis 
 compellable to answer any question which has a tendency to 
 expose him to a criminal charge, penalty, or forfeiture (/'). 
 
 The question has twice been raised under I'J VXv/.. c. •'>. In M'irh Wlipther Jo- 
 
 Tt \ii-nn 1 ■ 11 llrl fi'iuljint niii-l 
 
 V. rarhr {<■) the bill alleged an assignment matle by tlie defendant auswcrif thm 
 
 (x) 1 Cox, 288. 
 
 (//) 1 Cox, 294-5. («) FartruJfic v. Gopjt, 2 Amb. 59C ; 
 
 ('^) Clarulfje v. If oar c, hi Ves. 69, ante, pp. 78, 193. 
 
 G6; Faxton v. DoiqjUnf, 19 Ves. 225; [h) Jhirn'xoii \. tS'viitltcole,! Alk. ;y2H, 
 
 Thorpe v. Macaiday, 5 Mad. 229, 231, n. ; 539 ; JJoncytcowl v. Sclicin, 3 Atk. 27G ; 
 
 Pye V. Duiterfidd', 6 B. & S. 829 ; All Maccalhim v. Turton, 2 Y. & J. 186 ; 
 
 husen \. Lahouchcre, 3 Q. V>. D. 658; Ctn'tcd iSlatea of America v. M'Crtu, 
 
 Fisher v. Owen, 8 Ch. 1). 045 ; Lamb L. If. 3 Cli. 83 ; I'eilc, IHscovcry, 48 ; 
 
 V. Munster, 10 Q. 13. D. 110; Ilunnim) and Ece Kr parte Ji'ti/vohh, 20 <'h. D. 
 
 V. WiUiamso)!, 10 Q. B. D. 459 ; Taylor, 294 ; Taylor, Kv. btli cd. 1242 ; and Kerr, 
 
 Ev. 8th cd. 1242 ; Peile, Discovery, 40- Discovery, 154. 
 
 49 ; E. S. C. Ord. 31, r. 6. W 22 Ucav. 59.
 
 540 
 
 UNDER STATUTES OF ELIZABETH 
 
 liable to to Iiavc bet'U a fraudulent contrivance to deprive his creditors of 
 
 crmnnal jiro- 
 
 ceedings, the property comprised therein. The defendant Lv liis answer 
 lorfeitnre'. "'^ referred to the statute 13 Ehz. c. 5, and said that the plaintiff by 
 his bill song] it discovery in respect of a matter which, if true, 
 would render him (the defendant) liable to a criminal prosecution 
 under the said statute, and insisted that he was not bound to 
 answer, and declined to answer, any of the interrogatories. The 
 plaintiff amended his bill by striking out the direct allegations 
 of fraud, and again filed his interrogatories, which the defendant 
 still refused to answer on the same ground. The Master of the 
 Eolls decided that the amended bill was substantially the same 
 as the original bill, and that the defendant could not be com- 
 pelled to answer the amended bill. 
 
 And in an interpleader issue at law (d) between a clainuuit 
 (under a fraudulent bill of sale) and an execution debtor, the judg- 
 ment debtor was called, and asked certain other questions as to the 
 real nature and object of the transaction. On being admonished 
 by Willes, J., that he w-as not bound to answer, as he might thereby 
 criminate himself and expose himself to prosecution (c) under the 
 statute of Elizabeth for conspiracy to defraud his creditors, he 
 declined to answer. 
 
 It is conceived, therefore, that the rule alcove cited applies to 
 cases under these statutes. 
 
 Uiinny.nimn. The case of Buiiu V. Bunn (/), which has been cited as establish- 
 ing the opposite conclusion, does not, it is submitted, sui)port 
 that view, for it was not really a decision upon that i)reci.se 
 point. h\ Bunn v. Bunn (/), two defendants refused to make 
 an allidavit as to documents in their possession, on the ground 
 that if the deed should be proved to be fraudulent under lu 
 Eliz. c. 5, they, as parties thereto, would be lialile to criminal 
 proceedings. The Lords Justices said it liad never been the 
 practice to allow these provisions of either of the statutes of 
 Elizabeth to be made an excuse for resisting discovery ; that 
 the affidavit must be made j and that if any objection was made 
 
 ((/) Micliad V. Gay, 1 F. & F. 409. and sec Ex 2'Orte liajnoMs, 20 CI). D. 
 
 (e) Sec I{e(j. v. Smith, G Cox, C. C. 31 ; 29-4. 
 
 (/) 4 D. J. & S. 31G.
 
 PRODUCTION OF DOCUMEN'TS. j-U 
 
 to prnducG any particular (lociim.'iit, that ol)jcctioii must bo cun- 
 sidcrod thereafter on its merits. 
 
 So in S'lvnnsioii v. Llshma)i(;/), Jessel, M.ll., said that tlie ride 
 as to discovery is the exact contrary to that as to production. You 
 must set out every deed you have in your possession, wlu'thcr you 
 are bound to pro(bice them or not. 
 
 This case of Jhani v. Utoui {/i), it must be observed, docs not 
 decide that production of documents could be enforced if that 
 production rendered the parties liable to criiuina! proceedings. It 
 merely decides that the affidavit as to documents must be made, 
 in an action under those siatutes, even if making it should involve 
 the furtlier question of the right to production and liability to 
 criminal proceedings (i). 
 
 There seems to be no express authority u]»on the point Protluction of 
 whether production of documents can be enforced under these whether ' 
 statutes, if that production would expose the person producing ^J"/"""*^'! '" 
 them to criminal proceedings, penalties, or forfeiture. The case 
 
 of JFchh v. Fad (/.■) shews that it is at least duulitful whether 
 documents can be so protected from production. 
 
 Although if an authority be given to an attorney to effect a Principal not 
 particular purpose for another, that other is bound by any act of for act of* 
 his attorney in effecting that purpose, it being within the .scope °S*^°'' * 
 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 answerable 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 (/). 
 
 " Parties grieved " under these statutes are " creditors and Parties 
 others" (m), subseriuent purcliasers, and trustees in bankruptcy of ^"'"*"' 
 the settlor (?;0- I<^ i^i^}' ^-"C a question whether a corporation or 
 
 {,/) 45 L. T. (N.S.) 3G0, 301. (/•) 5 Ex. D. 100, 112 ; but sec Hill 
 
 (h) 4 D. J. & S. 31G. V. CampheU, L. K. 10 C V. 222. 
 
 (/) See Bray, Discovery, 341. (/) Mcnx v.Jfoirtll, 4 Ea-sl, 1,7. 
 
 (m) Ante, p. 17U; Batcher v. JJanUoii, 4 15. & Ad. 120.
 
 542 
 
 UXDER STATUTES OF ELIZ^VBETH : 
 
 Venue. 
 
 Poulton V. 
 I(7j>e;«a«. 
 
 Whole year's 
 value. 
 
 Forfeit on 
 mortgage, 
 lease, &c. 
 
 Every delend- 
 ant liable. 
 
 though an 
 infant. 
 
 Amount can- 
 not be altered. 
 
 company can be a party grieved, so as to be able to sue for the 
 penalty (n). 
 
 A party grieved within 13 Eliz. c. 5, or 27 Eliz. c. 1, m not 
 a common informer witlun 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 statute 
 27 Eliz. c. l, it was resolved with regard to these clauses — 
 
 That one entire year's profits, which is the penalty of the statute, 
 shall be forfeited without apportionment, as well upon a mortgage 
 as upon an actual sale. So also upon a lease or a petty annuity 
 made by fraud, &c. ; one year's value of the land shall be forfeited. 
 
 That every defendant that is found guilty shall pay a year's 
 value of the land, every one by himself, and not a year's value 
 jointly among them all. 
 
 That the infancy of one of the defendants shall not excuse 
 him of that penalty, he being of sixteen years, and privy to 
 that conveyance, and having justified that fraudulent deed to 
 be made bona fide ; and for that he shall be punished as if 
 he were at full age; and that the penalty cannot be increased 
 or diminished. 
 
 Distinction of Though the statute 13 Eliz. c. 5, only mentions the forfeiture 
 fJitcd" where °^ ^'^ mucli moucy as shall be contained in a fraudulent bond, tliis 
 property real must bc taken to cxtcud to all bonds, interests, judgments, exe- 
 
 and wliLre . . o o ^ 
 
 personal. cutions, or gifts, &c., of pcrsoual property (/•). 
 
 There is a careful distinction between real property, of whicli 
 one year's value in each statute, and bonds, judgments, &c., 
 relating to personal property in 13 Eliz. c. 5, of wliicli Uw wlioh* 
 value or amount, is forfeited. So on a fraudulent alienation of 
 lands the offending parties forfeit a year's value of the land, l»ut 
 not the consideration money named in the conveyance (s). 
 
 {)}) Guardians of St. Leonard's, 
 fS/toreditch, v. Franklin, 3 C. P. U. 377. 
 
 (o) Repealed in part by 11 & 12 Vict. 
 c. 43, B. 36 ; 42 & 43 Vict. c. 59. 
 
 (p) Allen V. /Stear, 2 Cro. Eliz. Ci.'j ; 
 jP//e V. Bounfidd, 6 Q. 15. 100 ; Lewis 
 V. Davis, L. It. 10 Ex. bS. 
 
 (7) Noy, 105. 
 
 (r) See Mcux v. ITovcll, 4 East, 1, 15 ; 
 and sec the words in the bcgiiiiiiiig of llie 
 section, ante, p. 53G. 
 
 (s) Bulclar v. Harrison, 4 13. & Ad. 
 12y, 1 Nev. & M. 077.
 
 PENALTY; IMPRISOX.MKNT. 513 
 
 The penalty, it seems, extends to tlie whole aniount fraudulently Penalty not 
 aliened, and is not confined to the amount of the debt. Thus it ZlHHntof' 
 was said in an old case (0, that if a man be indebted to me in ''"''''•" " 
 £20, and he make a fraudulent deed of his j^'oods of the vahie of 
 £2000, although I be defraudrd but ..f the £20, yet ho shall 
 forfeit the whole value of the goods so conveyed. There a man 
 had made a fraudulent gift of his thirty horses to defraud the oia tcKfcM 
 lords of several manors, of whom he held land of their custonuiry ''"'"'• 
 heriots. On liis death the plaintill', one of th(3 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 tliat the plaintiff should set a price on any 
 one of the thirty horses as the best horse, and demand the vabu< 
 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 by the Crown. 
 
 With regard to imprisonment of offenders. An indictment on imprisonment. 
 the 13 Eliz. c. 5, s. 3, alleged that the prisoners devised and prepared 
 a certain feigned, covinous, and fraudulent conveyance of certain 
 lands, and unkiwfully, fraudulently, &c., did execute the .same 
 conveyance. It was urged in arrest of judgment that the section 
 did not create an indictable offence, and tliat, if it did, an indict- In.liciAlle 
 ment could not be preferred until after a recovery of damages in a ''"''■'"'■*^- 
 civil action, and that this indictment was bad for not stating in Fran.l not 
 what respect the conveyance was fraudulent. ^laule, J., hehl '*'"''■■''■ 
 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 tlie end of tlio penal section ; and that it 
 was not necessary in such an indictment to set out the specific 
 facts which constituted the fraud, and that the words " being How 
 thereof lawfully convicted " mean being convicted thereof before*" 
 some competent tribunal (r). 
 
 (t) Creswell V. Cukes, 2 Leon. 8; and 1 Salk. 31-2, 3 Lev. 354; .S:rivcn, Copy- 
 see Plowden v. Greene, Co. Ent. 162, pi. holds, 5th cd. 267, n. {x). 
 35. {v) Jieg. v. i>iHith, 6 Cox, C. C. 31. Hco 
 
 (») 3 Dyer, 051b. Sec CldllwSantU, alsoP/oirf/cH v.C?rc«H'',Cn.K.nt. lG2,pl.35.
 
 CHArXER IT. 
 
 COSTS. 
 
 Costs under It Ims liceu laid down by the ITouse cf Lords, that the effect 
 Act, 1875. f'f ^^i<^ Judicature Act, 1875, which gives the Court a discretion 
 as to costs, was to repeal all previous Acts which directed costs 
 to follow certain rules witliout leaving the Court a discretion (?/•). 
 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 (.'■), and to direct the payment of costs where any 
 previous statute was silent as to the costs of proceeding under 
 
 it {y). 
 
 Costs under By the Ptules of the Supreme Court, 1883, the rules contained 
 
 1{ S C IS''^ 
 
 ^ ' in and forming a part of the Judicature Act, 1875 (,i), were 
 annulled, and the Fades of the Supreme Court, 1883, were sub- 
 stituted for them {a). 
 
 The costs of and incideut to all proceedings in tlie 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 (/>). This 
 rule is subject to the provisions of the Acts and Piules ; and to 
 two provisoes 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. 
 
 {w) Garnett v, Bradley, 3 App. Cms. 17 Ch. D. 378; lie Lee and JTemhigwoy, 
 
 944 ; and see E.r parte Jlcrccr, 10 Ch. })., 24 Cli. D. 009. 
 
 per JcBsel, M.R., 482. (~) Loiujvutn v. East, ?> C. V. 1)., ) cr 
 
 {x) R. S. C. (1883) Ord. 0.5, r. 1. lirctt, I..J., 150. 
 
 (?/) Kx parte Mercers' Co., 10 Cli. D. {a) W. S. C. (1883), and App. O. 
 
 481 ; Er parte Hospital of t^t. Kathcrinc, {Ji) 3[cCleUun\.MvC'elhni;>'J(:i.T>A'.S).
 
 COSTS. 
 
 545 
 
 Tliis rule aj.plies to all proceedings in tjic llij.li o.urt of 
 Justice ^v]lie]l are not expressly excei)le(l from its operation (r). 
 
 But it (ln.>s not :i],p]y to i)ro(Hr(lings taken in fl.,- Cuunty IJ. S. f.iftM 
 Courts, the costs of Avliicli are still -..vurne.l l.y il„- County t"ro!.;f;'''^ 
 Courts Act, 18G7 (</). Court.. 
 
 But altliough the Court has now a wide discretion as lo costs, Di^crfiion 
 yet that judicial discretion is always exercised upon ccriain fixed r"'"'**** ''''■ 
 ])riiiciplos (r). i: 
 
 I 
 
 Under the old practice as to costs the decisions on the statutes 
 of Elizabeth and in cases in which voluntary deeds were set 
 aside for undue influence afforded ample sco])e for the Court of 
 Chancery to exercise its discretion either in reimbursing tiiose 
 who have been deceived or injured the amount they have 
 expended in obtaining a redress of their wrongs, or in ].unishing 
 those who have acted unfairly, or who, though entitled to relief, 
 have not been entirely free from blame in the matter befoie the 
 Court (/). 
 
 Where a deed is set aside as fraudulent under the statute Coau on.lcr 
 13 Eliz. c. 5 it has been held that tlie utmost the Court can do for ^"^ ^^''' "' ^' 
 the trustees is not to order them to pay costs ((/). 
 
 But trustees have been ordered to pay costs where l»y their 
 conduct the proceedings have been rendered necessary (Ii), or 
 where tlicy have actively supported tin: deed (/), or havi! mad<' 
 themselves accessory to a fraud, as l»y signing a false receipt on 
 the back of the deed (k). 
 
 (c) Suprn. 
 
 (cl) Plumb V. CraJ:cr, IG Q. II D. 40; {(/) Eheij v. Cor, 20 Deav. 0:i; nnJ 
 
 Judicature Act, 1875, s. G7 ; 30 & 31 see Towunend v. Weslacolt, 2 Ikav. 3-tO, 
 
 Vict. c. 142, s. 5. S. C. 4 Ueav. 58 ; A7»fy v. Lutem, S Ilarr, 
 
 (e) See Fane v. Fane, 13 Di. D. 22S; 159; Crosskij v. Flicurtfnj, L. H. 12 F.<|. 
 
 Cooper V. Whiitinijham, 15 ('!i. D. 158 ; ami see decree in ^'urnuA v. r/arit, 
 
 501; Wilmotty. Barher, 17 Cli. D. 772; L. 11. 14 Eq. at p. lUO; and .Morgan & 
 
 Dicks V. Yates, 18 Cli. D. 7G ; The Swan- Wurtzburg. 2nd ed. 300, 402. 
 
 sea V. The Condor, A V. D. 115; Harris (h) Smith v. Drctmer, L. II. 1 K.]. 
 
 V. Petherich, 4 Q. B. D. Oil; Foster 051; Tanqucray v. JJvicUt, L. IL U 
 
 V. Great Western liailway Co., 8 Q. V>. Eq. 151. 
 
 D. 25, R. C. 515; Daniel, Ch. IV. Gthed. (i) Freeman v. Pcype, L. R. 9 Eq. 
 
 11G9, 1170; Morgan & "Wurtzburg, Costs, 200, S. C. L. P. 5 Cli. 538; sfo form of 
 
 2nJ ed. 1-7. decree, Seton, 4th pu. 1309; Mackay \. 
 
 if) See Holmes v. Penney, 3 K. & J. Douglas, L. R. 14 Eq. 100, 123. 
 
 WA; Hale \. Metroiwlitan Saloon Cq.,A (k) Turquand v. Kniyht, 14 Sim. 
 
 Drew. 492. 643.
 
 540 COSTS. 
 
 A plaint iir suing to set asiile the ilcrd may, liy praying a con- 
 veyance by ilu' trustee, and thus irrating liini as a real trustee, 
 elect to give him a claim to costs (/). 
 
 Where there M'as a doubt \Yhether the debts were j trior or sub- 
 sequent to the settlement, the bill was dismissed without 
 costs (?«). 
 
 Where the deed is set aside as frauditlent in an administration 
 action, and the fund which is subject to it is in court, the trustees 
 may, if there is no imputation on their conduct, have their costs 
 jtaid out of it (ii). 
 
 And wdiere the deed is u[)held, the trustees have lieen allowed 
 to take their costs out of the settled funds ('/). 
 
 Trustees of a voluntary settlement will be personally liable to 
 pay the costs of any appeal from a decision as to the validity 
 of that settlement (p). 
 
 Otlier creditors When a deed is set aside by one creditor as void against the 
 let in on con- c^-Qtiitoi^g of the grantor, the other creditors will be allowed to 
 
 tnbuting to o ' 
 
 costs. come ill and take the benefit of the decree on jjaying their pro- 
 
 portion of the costs ; but not otherwise (;/), so that the settlement 
 fund cannot be declared applicable to payment of the plaintiffs 
 debt and interest and his costs of suit, unless he has a lien which 
 would entitle him to be paid in priority to other creditors, if 
 any (/■)• 
 
 Costs paid h\ Golilsmifh V. HusscU (.s) the bill was tiled by the jilaintifr 
 
 S.''"'"^ on behalf of liimself and all the other creditors of the settlor, 
 to impeach a settlement made by him. The deed being declared 
 void, an account was directed as to what was due to the i)laintilf 
 and the other creditors ; and the costs of tlie plaintiff, and the 
 trustees, and the settlor's wife and daughter, defendants, Imt not 
 
 (/) /S'«0!'; V. Hole, V.C. of England, (p) Kr parte nn.ificU, 1',) Cli. D. 588. 
 
 March 1845; Lewin on Trusts, 8th cd. (7) Fldchcr \. t'i'ciUe if, '2 \ inn. 'M ed. 
 
 080. 401, n. 
 
 (m) Mliitev. <Sansom, 3 Atk. 410. (/•) Adamcs v. ITalktt, T.. IJ. 1; Eq. 
 
 (m) In re Turner's Estate, W. N. 4G8, 473 ; ante, pp. 5"J5, 52ij. 
 (1884) 101 ; and see Taijlor v. Cuenen, 1 (.v) 5 Do G. M. & (J. 55G ; Adames v. 
 
 Ch. D. G3G ; Daniel, Cli. I'r. Ctli cd. 123. IMlett, L. R. G Eq. 4G8 ; J'onsford v. 
 
 (o) Kent V. Jiilci/, L. IJ. 14 Eq. 100. WuhuU, AV. N. (18G0) 81.
 
 COSTS. 
 
 547 
 
 those of the settlor, were ordered lo bo jxiid out. of th scttUmcnt 
 funds. V>\\t there it seems the jiroperty Cdininiscd in llic settle- 
 ment was snllicicnt to ].ay all the debts. A iilainlill in such a iviorijj of 
 case will have priority as to his costs of suit. pl«ii»iirr. 
 
 A creditor who, by briuniii-- an a<tinn on Iichalf of himself and (•«.!! 
 
 •or 
 
 all other creditors, has been the means of scttin-' aside a fraudu- •"V"f.'''". 
 
 " risk nllowcd 
 
 lent settlement, and makini;- tlu- proi)erty sul)ject to it available *""" <^o"'*- 
 for the creditors, is entithnl to have his costs taxed as between 
 solicitor and client, and also as between ])arty and party, and the 
 difference ascertained, — the costs of the plaintill" fus between jtarty 
 and party to Ije paid out of the general fund. Out of the 
 remaininii- fund there will be set apart a sum e([ual to tlie amount 
 of tlie del)ts, to be called the creditors' fund, ami I lit! diflerence 
 between the plaintiff's costs, as between solicitor and clitnt and 
 party and party, will be deducted out of that fund, and the 
 remainder of the fnnd apportioned among the creditors, including 
 the plaintiff, in proportion to the amount of their respective 
 debts (/). 
 
 And in Barrack y. 3I'CidIoch («), where a iilainiilf sued f'^r Tobu pivcn to 
 the benefit of the creditors generally, although, under the circuni- {ho'°ij, „„- 
 stances, the settlement was not set aside, it was said that as it 8"cccs^ful. 
 was a very proper case on behalf of creditors to be sifted, 
 althougli that expense could not Ite tlirowii on the jiarties who 
 had explained it (i.e., the settlees), the plaintilf should have his 
 costs if ultimately the estate should not be sullicient to i)ay 
 creditors; because it was a suit by him on liehalf of himself and 
 all other creditors, in whidi lie and all the others would share in 
 the benefit, if any had been derived. The liill was therefore 
 dismissed, with costs against the trustees and the settlees, and 
 (the debtor being dead) the connnon administration decree was 
 made, reserving the cpiestion whether those costs should not 
 ultimately be paid out of the estate, as they should Ix- if the 
 estate proved insolvent. 
 
 The costs of the cestuis que trust under a settlement setcoiuof 
 
 (/) Stanton v. JIaffteU, 1 Keen, Sf^S, M. & (!. 557 ; sec Morgan & Wurtzburg, 
 ollowcd in Goldsmith v. liussell, 5 Do ( 1. -'ml eil. 202. 
 («) 3K. &J. lln, Vl-1. 
 
 N N J
 
 548 • COSTS. 
 
 ccstais que asulo as fraiululont will, wlien tlieir conduct is free from Ijlame, 
 bo tlirown upon the property comprised in it (r) ; but if they 
 actively support the settlement they will he ordered to pay the 
 costs of the action (v:). 
 
 ( "osts given to In a Suit by assignees in bankruptcy, wlierc the circumstances 
 ?mikraptc'v ^^^ ^^'^^^^ ^^ ^° j^^stify inquiry, althougli the settlement is held 
 tailing iu the y^lid, no costs will bc G^ivcn a^-ainst the assignees of the settlor ; 
 
 suit. ' .-5 
 
 for it is their duty to inquire into any suspicious transactions, 
 and to try to increase the estate for the creditors (<r). 
 
 So where the suit was occasioned by the improper conduct of 
 the settlor, although the settlement was uphold, the bill was dis- 
 missed without costs as against the assignees of the settlor (i/). 
 
 But where the answers to a bill filed by assignees to upset a 
 transaction apparently voluntary disclosed facts which shewed 
 that there was a valuable consideration. Sir J, L, Knight Bruce, 
 V.C, upheld the deed and said : " The transaction, however, is 
 such that, as to the costs before the answers were in, I am not 
 disposed at present to say anything ; but after the answers had 
 Not after the discloscd the case, I think that from that time the plaintiffs must 
 pay the costs " (,:). Assignees have less excuse for instituting 
 suits than others who cannot obtain a discovery without suit, as 
 they can force discovery on oath. 
 
 And where the settlor became bankrupt during a suit properly 
 instituted by creditors against liim and the trustees of a settle- 
 ment and properly conducted, the trustee in his bankruptcy, as 
 he had neglected his dut}'" of stopping tliat suit, was held not 
 entitled to be ^laid out of the estate and not liable to pay any 
 costs of the suit subsequent to the bankruptcy (a). 
 
 Costs of trustee Where the trustee of a fraudulent deed was a necessary party 
 to the suit, as tlie trustee of another deed, he was allowed liis 
 
 (r) FonKford v. IF'tV/nf?/, W. N. (18C9) Thompsonv. IVehster, ABtcw. C'28, S. C. 
 
 81; ante, p. 540; Daniel, Ch. Pr. Gth eJ. 4 De G. & J. OuG-7. 
 
 1232. ((/) Kent v. liiletj, L. R. 14 F.q. 190. 
 
 (ii-) Crossky v. Ehcorthj, L. l\. 12 \z) JUt \. Todhunter,^ ^m'. b'il. 
 
 Eq. 158; MacJcay v. JJour/las, L. K. 14 {a) Tanqueray v. Uowleti, L. 11. 14 
 
 Eq. IOC, 123. Eq. 151, 156. 
 
 (j) Hard, V. Shcdlet, 2 Vc3. 17 ;
 
 COSTS. 549 
 
 costs against tlio fraudulent assi;^rnur ; as also was ll.e grantor c.f «,..l thini 
 the annuity wliid, lia.l heen fraudulently assigned, and they were '"''^ 
 hoth to retain so nuieh of their respective costs as the fraudulent 
 assignors could not pay out ..f what M-as due from them respec- 
 tively on account of the annuity {!>). 
 
 AVHicrc an action to set aside a deed is dismissed, uni.roved l'M|.r..v.-.l 
 allegations of fraud will induce the Court to give a defendant his S""'"'"^ 
 costs (r), as between party and party {>J) ■ but relief will nU 
 always be denied because imputed fraud lias not been j.roved ('). 
 
 Where a bill impeached a settlement as void against the riainiiffU-ing 
 plaintiff as a creditor and also as a purchaser, and it being held J^;iw "'' 
 void against him as an equitable mortgagee (purchaser) the '■'^'!'"" '""• 
 defendants contended that the ground of claim that the settle- ""'""^'•'l I'im 
 ment was void against creditors had altogether failed, and that cbarictera. 
 therefore the plaintilf ought t(j pay tlie costs incurred in respect 
 of that claim. Sir J. Wigram, V.C, said (/) that those win. 
 have contended that the plaintiffs equity could not be sustained 
 under the statute 27 Eliz. c. 4, could not with success urge that 
 argument (as to costs) unless they could shew that the claim under 
 the statute 13 Eliz. c. 5, could not be sustained on the present 
 record, or that the evidence in the cause was insufhcicnt to 
 sustain the case. Both of these points were argued. 
 
 His Honour thought that the former should be decided in the 
 plaintiff's favour ; and that the right to sue in this case was 
 established ; and that the evidence, if not already sullicient, was 
 such as would entitle the plaintiff to an opportunity of perfecting 
 it. The question on this point was merely one of costs, and tho 
 evidence being strong there was no ground for distinguishing the 
 costs of tliat part of the suit whicJi was founded on the sUitutc 
 13 Eliz. c. 5, from the other costs. 
 
 (b) Xorciitt V, Do(l(f, f'r. & P. 100, 103. 
 
 (c) Walefield v. Gibbon, 1 Crift". 401, merits and as to costs of Irustoes, S. <". 
 
 412; JiaJcerv. Uradlci/,! DeC!. M. &Ct. h. \l. 7 Cli. 329; Morgan & Wurtzburg, 
 
 597, 627 ; Clinch v. Financial Corpora- 2nd eJ. lOG. 
 
 tion, L. Iv. 5 E(i. 450, S. C. L. II. 4 Ch. (e) Eqwyy.Luhc, 10Hftre,2r,0; linker 
 
 117. V. Bradlcii, 7 Do G. M. & G. 597, 0.27. 
 
 {d) Turner v. Cvllins, L. W. 12 Eq., (/) Lister v. Turner, b Hare, 2Sl, 
 
 per Mulins, V.C, 440; varied on the 291.
 
 550 COSTS. 
 
 Costs where Where ill a suit to set aside a voluntary settlement the relief 
 
 asked is not contested, the Court M-ill order a reconveyance of the 
 property settled, and direct payment of the costs out of the 
 property so settled {(j). 
 
 Costs under "Where a man enters into an agreement to l)uy land knowing 
 
 that it has been the subject of a voluntary settlement, although 
 he can enforce specific performance of the agreement, he is not 
 entitled as of course to his costs of suit ; for he was cognizant of 
 the circumstances connected with the property, and knew that 
 the agreement could not be i)erformed, except through the inter- 
 vention of the Court. In a case of this kind the costs of the 
 })laintili' and of the representative of the surviving trustee of the 
 settlement were ordered to be paid out of a fund previously set 
 apart for the benefit of the settlor (/;). 
 
 In Dalcing v. Whimj^cr (i) on such a decree of specific per- 
 formance, no costs were given against the cestuis que trust of the 
 voluntary deed, and the settlor was ordered to pay the costs of 
 the trustees of the deed, " which were occasioned by his own 
 voluntary act ; " but in a similar case the purchaser has been 
 ordered to pay the costs of the trustees of the voluntary settle- 
 ment (Z). 
 
 So in Fdcr v. Nicolls (/), where specific performance was 
 enforced against a person who had been let into possession 
 as purchaser and had taken a conveyance of the legal estate 
 and had the title deeds, he was ordered to pay the costs of 
 the suit. 
 
 And in a case {m) where spccilic periV)rmaiicc of a contract l»y 
 the settlor for sale of settled jtroperty was refused because there 
 appeared to have been suilicient consideration for the settle- 
 ment, the l)ill was dismissed with costs as against the defend- 
 ant the settlee, and without costs as against tlie defendant the 
 settlor. 
 
 {<)) ThompHon v. MUligan, 18 L. T. (/.:) Fletcher v. Kctloiiav, 40 L. J. 
 
 (N.«.) 800 ; but see J'om/ord v. WUlncU, (X.S.) Cli. 024. 
 W. N. (1809) 81 ; {Uitc, p. 548, note (/;). (/) L. W. 11 Eq. 301. 
 
 (A) ]\Ulat8 V. Bmhi), 5 Beav, 1"J3. (>") Tmncnd v, Tuka; L. li. 1 CL, 
 
 (i) 20 Beav. 571. 440.
 
 COSTS. 551 
 
 Where a vcluiitaiy settlement is set asi.le fur fnuul aiul undue r.-fK ..n 
 inlhu'uce, llu' donees as a general rule will have to pay costs o.ily "^^uVr"^" 
 if tliey support llie deed (u), and of cour.sc if i hey have ru- """*'"• •"• 
 fused reasonable terms (o), and also tliird jiersoiis if ihey sui.port l>.^i.«-», 
 such a o-ift in their favour (j>). Kven a solieitor (y) or other '^'•''^ '*'**''*• 
 third person (/•), if -uilly, not merely of havin- made tlie action 
 necessary liy Ids hhuKk'r, 1)UL of liriii,L; an acting participator 
 in the fraud, may be mulcted in costs, though not a i.ariy to 
 the action. 
 
 The Court has jurisdiction in cases of fraud, ami where a 
 person against whom no relief could otherwise be asked is made 
 a party to a suit on the ground of fraud, it is l)ecause the Court 
 has jurisdiction to indemnify the person injured al the expense of 
 all persons, whether solicitors or not, who have Ijeen acting i)arti- 
 cipators in the fraud, and it can therefore make any party to the 
 fraud pay the costs of the proceedings which have been reJiderud 
 necessary by the fraud in which he has taken pan (>). 
 
 But where a voluntary settlement was ujilicld, the circum- 
 stances appearing very suspicious, the donees had only to pay 
 their own costs (/). 
 
 Where a voluntary deed was set aside on the ground of nnitual 
 mistake, the costs of an infant donee were ordered to lie i>aid by 
 the plaintiffs («). 
 
 But where (v) deeds were set aside for undue inllucnce, and Donor, 
 there were no other charges established against the solicitor who 
 prepared them beyond that he did his best to make the deeds 
 
 (ii) Nvttulfjcv. rfince,2(i]iY.2-[C),211] 75, 7(i ; J/n'jKOiiii v. i:tis,l,>j, II Vch. 
 
 Coolc V. Lamottc, 15 13c;iv. 249 ; Tale v. 27o ; JJara;/ v. Mount, S 1 Vuv. i;t9, -l');} ; 
 
 Willtamtion, L. K. 1 Eq. 528, S. C. L. 11. Bahcrw Louder, L. IJ. 16 ¥ai 49; ('lurk 
 
 2 Ch. 55 ; Muuntfonl v. Kccnc, 19 W. W. v. (llnlwmHl, 7 Ch. D. 9. 
 
 708; BainhrHj<jc\. Broicne, 18 Ch. 1). (/•) PridcaHX\. Lonsdale, \(\\S. \h'>, 
 
 603. 178, S. C. 1 1). .1. & S. 433; llarvoj r. 
 
 (o) Coutts V. Achrorlh, L. li. 8 Eq. 558. Mount, 8 13cav. 4.']9, 453. 
 
 {p) Archer v. Hudson, 7 Boav. 551 ; («) Clurk v. Girdiro<xl, 7 fli. D., per 
 
 Berdoe v. Duvson, ?A lioav. Ofi.'i : Bhodcn .Tames, L..I., 23, dissenting from Baker v. 
 
 V. Bate, L. U. I Ch. 252; ami sec ante, Loader, L. U. 10 Kq, 49. 
 
 pp. 503, 504. (0 Tai/lor v. Johnston, 19 Ch. 1>. ('.03. 
 
 {(j) Bridycmun v. (hxcn, Wilni. .08, («) fihort v. Buhjc, W. N. (187C) 47. 
 
 (r) Lijon V. Home, L. R. Eq. 055, C81.
 
 552 COSTS. 
 
 effectual, and was a friend of tlic principal defendant, the 
 plaintiff, who had by her unwarrantable attacks on him in her 
 affidavits, and by innumerable misstatements, seriously increased 
 the expenses of the suit, was made to pay his costs and her 
 own. 
 
 In Hatch v. Hatch (w), though a deed was decreed void against 
 the defendant (a married woman), no costs were given on account 
 of her husband's misconduct, he being particeps criminis. 
 
 Bill dismissed And if tlicrc was reasonable cause for suspicion, a plaintiff 
 
 without costs. . 
 
 impeaching a voluntary transaction as infected by undue in- 
 fluence will not be made to pay costs, although the bill was 
 dismissed {x) ; where, for instance, an agent has taken a gift 
 from his principal without the interposition of any independent 
 third person (//). 
 
 Trustees. AVhcre trustees of a voluntary settlement do not uphold the 
 
 deed, but act honestly and for the best interest of the settlor, they 
 will be allowed tlieir costs (:) ; or if they maintain the voluntary 
 settlement as representing absent parties who cannot be ascer- 
 tained, for then it is their duty to defend the action (a). 
 
 But if trustees actively interfere to support a voluntary settle- 
 ment, and it is set aside, they will be ordered to pay costs (h) ; 
 and of course this will be the case if they also take a beneficial 
 interest under it {r). 
 
 Where a voluntary settlement is set aside, a trustee, as there 
 is no contract in existence, has no claim to his costs as of right, 
 and therefore cannot appeal from an order giving costs against 
 
 him 00- 
 
 ()/•) Ves. 292,298-9; aiKl see /io///(<o>i 405; PJdUips v. MulHnr/s, L. 1\. 7 C'li. 
 
 V. Jloghlon, 1.0 J5eav. 278, 321 ; Anderson 24-i; Turner v. Collins, L. R. 7 C'li. 320. 
 
 V. J-Jkirorth, 3 CiifT. 154. {'i) Jania v. Couclinian, 29 Ch. 1). 
 
 (x) See Hunter v. Atkins, 3 My. & K. 212. 
 
 113, 157; Klrwan v. CuUcn, 4 Jr. Cli. (/>) Jfara v. na>/, W. X. (1872) 127; 
 
 322, 333; ToJcer v. ToJcer, 31 Ceav. C29, Dutton v. Thompson, 23 Ch. D. 278. 
 
 W. C. 3 D. .J. & S. 487 ; Tuijlor v. John- {r) Irwin v. liofjcrs, 12 Ir. Eq. Itcp. 
 
 ston, 19 Ch. D. 603. 159. 
 
 ((/) Ilarriir. TremenJiecrc, lo X es. -iO. i<f) Button v. Thomjjson, 23 Ch. D. 
 
 (z) Eceria v. Everitt, L. It. 10 Kq. 278.
 
 COSTS. 
 
 bi)-. 
 
 WJicre tl.c V,auk of Kn^land decliucl to pennit a transfer, on 
 the ground of undue mllucnco on tl.c transferor, it was ordered 
 to pay the costs of a motion l.y him u> direct it to pern.it the 
 transfer {e). 
 
 Trustees of a vohmtary deed must, of course, pay costs in an Rrca-hof 
 action to repair a breach of trust (/), unless under very special '^""'• 
 circumstances 0/), although the trusts were created hy tlieir own 
 
 voluntary act of bounty (/;). 
 
 (ISsIh/''" " ^""'' ^-^^''^^'"''^' ^^'- ^^'- ^^■'■'' '' I--1 narchvicko «a,M wa., a cn»o of 
 
 '/A a. ' r • rr , , , °'''''''^ liardsliip, an.l gavo no cohU; and 
 
 /) Sec Lewin on Trusts, ,Stl> c.l. 991. see /.«„/.«,„ v. 7Vr,V. .3 J„r. (N S ) 704 
 
 (9) bcc 6mUk V. i-Vc.cA, 'J All. 2i;j, (/,) /,,,,-,, v. JJrcrclu.,, 10 licav. 220.
 
 ATPEN J) I \ 
 
 Xo. I. 
 
 13 Eliz. c. 5. A.]). 1570. 
 
 An Ad atjaind Fraudidcni Deeds, Gifts, Alunaiions, iCr, 
 
 For ilio Avoiding jind Aljolishing of IV'igneil, covinous luid frauduIcuL 
 Feottments, Gifts, Grants, Alienations, Conveyances, Bonds, SuiUs, 
 Judgments and Executions, as well of Lands and Tenements a.s of 
 Goods and Chattels, more commonly used and jivactised in tliuse Days 
 than hath been seen or heard of heretofore : which FuoHuients, Gifts, 
 Grants, Alienations, Conveyances, JJonds, Suits, Judgments and 
 Executions, have been and are devised and contrived of Malice, 
 Fraud, Covin, Collusion or Guile, to the End, Purpose and Intent, 
 to delay, hinder, or defraud Creditors and others of their just and 
 lawful Actions, Suits, Debts, Accounts, Damages, Penalties, Forfeitures, 
 Heriots, Mortuaries and Reliefs, not only to the Let or Ilinderanco 
 of the due Course and Execution of Law and Justice, but also to the 
 Overthrow of all true and plain Dealing, Bargaining and Chevi.smce 
 between Man and Man, without which no Commonwcnilli or ci\ il 
 Society can be maintained or contiiuieil. 
 
 II. Be it therefoi^e declared, ordained and enacted by tiic Auilio- rr.iu.lul.-m 
 rity of this present Parliament, That all and every Feollment, Gift, ^'o.^'^'J a"'-" 
 Grant, Alienation, Bargain and Conveyance of Lands, Tenements, 
 Hereditaments, Goods and Chattels, or of any of them, or of any J^ea.se, 
 Bent, Common or other Profit or Charge out of the same Lands, 
 Tenements, Hereditaments, Goods and Chattels, or any of them, by 
 Writing or otherwise, and all and every Bond, Suit, Juilgua-nt and 
 Execution at any Time had or madu sithence the Beginning of the 
 Queen's Majesty's Reign that now is, or at any Time liereafter to l>e 
 had or made, to or for any Intent or Purpose before declared and 
 expressed, shall be from henceforth deemed and taken (only as against 
 that Person or Persons, his or their Heirs, Successors, Executoi-s, 
 Administrators and Assigns, and every of them, whose Actions, Suits, 
 Debts, Accounts, Damages, Penalties, Forfeitures, Heriots, Mortuaries 
 and Reliefs, by such guileful, covinous or fraudulent Devices and 
 Practices, as is aforesaid, are, shall or might l)e in any ways disturln-d, 
 hindred, delayed or defrauded) to be clearly and utterly void, frustrate
 
 55G 13 ELIZABETH, C. 5. 
 
 niul of none Eflect ; any Pretence, Colour, feigned Consideration, 
 expressing of Use, or any other Matter or Thing to the contrary 
 notwithstanding, 
 rcnaltj-. Ill- And be it farther enacted by tlic Authority aforesaid, That all 
 
 and every the Parties to such feigned, covinous or fraudulent Feotl- 
 ment, Gift, Grant, Alienation, Bargain, Conveyance, Bonds, Suits, 
 Judgments, Executions and other Things before expressed, and being 
 privy and knowing of the same, or any of them ; which at any Time 
 after the Tenth Day of Jane, next coming shall wittingly and willingly 
 put in Ui-e, avow, maintain, justify or defend the same, or any of 
 them, as true, simple, and done, had or made hotid fide and upon good 
 Consideration ; or shall alien or assign any the Lands, Tenements, 
 Goods, Leases or other Things before mentioned, to him or them 
 conveyed as is aforesaid, or any Part thereof ; shall incur the Penalty 
 and Forfeiture of one Year's Value of the said Lands, Tenements and 
 Hereditaments, Leases, Bents, Commons or other Profits, of or out of 
 the same ; and the whole Yalue of the said Goods and Chattels ; and 
 also so much Money as are or shall be contained in any such covinous 
 Penahies liow and feigned Bond ; the one Moiety whereof to be to the' Queen's 
 recovered, ic. j^jf^jgsty, her Heirs and Successors, and the other Moiety to the Party 
 or Parties grieved by such feigned and fraudulent Feoffment, Gift, 
 Grant, Alienation, Bargain, Conveyance, Bonds, Suits, Judgments, 
 Executions, Leases, Bents, Commons, Profits, Charges, and other 
 Things aforesaid, to be recovered in any of the Queen's Courts of 
 Becord by Action of Debt, Bill, Plaint or Information, wherein no 
 Essoin, Protection or Wager of Law" shall be admitted for the Defendant 
 or Defendants ; and also being thereof lawfully convicted, shall suffer 
 Imprisonment for one Half Year without Bail or Mainprise. 
 Common Rcco- ^^ • ProWded always, and be it further enacted by the Authority 
 veries. aforesaid. That whereas sundry common Becoveries of Lands, Tene- 
 
 ments and Hereditaments have heretofore been had, and hereafter may 
 be had against Tenant in Tail, or other Tenant of the Freehold, the 
 Beversion or Bemainder, or the Bight of Beversion or Bemainder 
 then being in any other Person or Persons; that every such common 
 Becovery heretefore had, and hereafter to be had, of any Lands, 
 Tenements or Hex-editaments, shall, as touching such Person and 
 Persons which then had any Bemainder or Beversion, or Biglit of 
 Bemainder or Beversion, and against the Heirs of every of them, 
 stand, remain and be of such like Force and Effect, and of none 
 other, as the same should have been if this Act had never been had 
 ne made. 
 I'ormedon ^' Pi'ovided ahvaj's, and be it further enacted by the Authority 
 
 aforesaid, That this Act, or any Thing therein contained, shall not 
 extend to make void any Estate or Conveyance, by reason whereof 
 anv Person or Persons shall use any Voucher in any Writ of Formedon, 
 now depending or hereafter to be depending, but that all and every 
 such Vouchers in any Writ of Formedon shall stand and be in like
 
 •11 i:Li/.Ai;r.Tii, c. .j. jjr,^ 
 
 Force an.l EtToct. ns if ll,i.s Act \uu\ novo,- lu-on l.a.l no u.a.lo • nnv 
 Thing ])eforo in this Act ontaincl („ (h.« f.mtrary n(.( withstun.h'n^'. ' 
 
 VI Provided idso, and ho it onactc.l hy (ho Authonty nforcsiii.l, K -IMc. m«Jo 
 That this Act, or any Thing therein contained, sliall not oxtcn.l to ^""J"'"- 
 any Estate or Interest in Lands, Tenements, JleroditamentK, L«u«m, 
 Eents, Commons, Profits, Goods or Chattels, had, made, convoyed or 
 assured, or hereafter to be liad, made, conveyed ..r as.suro.1, "which 
 Estate or Interest is or sliall bo upon good Consi.loralion and UnA fuh 
 lawfully conveyed or assured to any Person or Pei-sons, or Hollies 
 Politick or Corporate, not having at the Time of such Convpyunce 
 or Assurance to them made, any Manner of Notice or KnowliMlgo 
 of such Covin, Fraud or Collusion as is aforesaid ; any Thing before 
 mentioned to the contrary hereof notwithstanding. 
 
 A'^IT. This Act to endure unto the End of <lie First S.-<^;.... ..f .1. 
 
 next Parliament. 
 
 [JTade j^crpetual, 29 Elh. c. 0, § ], 2 ; and S'jc -7 AV/;.. c. I. J 
 
 '>nlinuanc«. 
 
 No. II. 
 27 Eliz. c. 4. A.D. 1585. 
 An Ad ar/cnnst Covcnous and Fimulidcnt Conrcyancfs. 
 
 Forasmuch as not only the Queen's most excellent Majesty, but also 
 divers of her Highness good and loving Subjects, and Podies Politick 
 and Corporate, after Conveyances obtained or to bo obtaineii, and 
 Purchases made or to be made of Lands, Tenements, Leases, Estjites 
 and Hereditaments, for Money or other good Considerations, may 
 have, incur and receive great Loss and Prejudice b}' reason of 
 fraudulent and covenous Conveyances, Estates, Gifts, C!i-!int«, Chai-ges 
 and Limitations of Uses heretofore made or hereafter to l)o made of, 
 in or out of Lands, Tenements or Hereditaments so purchased or to I'mu«liili>nt 
 be purchased ; which said Gifts, Grants, Charges, Estates, l\scs and I,°X' to*"*^ 
 Conveyances were or hereafter shall be meant and intended by the tl.'coirc I'ur- 
 Parties that so make the same to be fraudulent and covenous, of <^*'"<'"» *"'•'• 
 Purpose and Intent to deceive such as have purchased or shall pur- 
 chase the same, or else by the secret Intent of the Parties the samo 
 to be to their own proper Use, and at their free Disposition, coIoui^mI 
 nevei'theless by a fained Countenance and Shew of Wcrds and 
 Sentences, as though the same were made lonA fuh\ for good Causes, . 
 and upon just and lawful Considerations : ' 
 
 11. For remedy of which Inconveniences, and for the avoiding of 
 such fraudulent, fained and covenous Conveyances, (Jifts, Gr;uit,s, 
 Chai-gcs, Uses and Estates, and for the Maintenance of upright and
 
 558 27 ELIZABETH, c. 4. 
 
 jast Dealing in the purchasing of Lands, Tenements and Heredita- 
 ments ; Be it ordained and enacted by the Authority of this Present 
 Parliament, That all and every Conveyance, Grant, Charge, Lease, 
 Estate, Incumbrance and Limitation of Use or Uses of, in or out 
 of any Lands, Tenements or other Hereditaments whatsoever, had or 
 made any Time heretofore sithence the Beginning of the Queen's 
 Majesty's Reign that now is, or at any Time hereafter to be had or 
 made, for the Intent and of pui-pose to defraud and deceive such 
 Person or Persons, Bodies Politick or Corporate, as have purchased 
 or shall afterwards pui'chase in Fee Simple, Fee Tail, for Life, Lives 
 or Years, the same Lands, Tenements and Hereditaments, or any Part 
 or Parcel thereof, so formerly conveyed, granted, leased, charged, 
 incumbred or limited in Use, or to defraud and deceive such as have 
 or shall pui'chase any Rent, Profit or Commodity in or out of the 
 same, or any Part thereof, shall be deemed and taken only as against 
 that Person and Persons, Bodies Politick and Corporate, his and 
 their Heirs, Successors, Executors, Administrators and Assigns, and 
 against all and 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 con- 
 sideration, the same Lands, Tenements or Hereditaments, or any 
 Part or Parcel thereof, or any Rent, Profit or Commodity in or out 
 of the same, to be utterly void, frustrate and of none EfTect ; anv 
 Pretence, Colour, fained Consideration, or expressing of any Use or 
 Uses to the contrary notwithstanding. 
 Parties to frau- III. And belt further enacted by the Authority aforesaid, That 
 JeyTncS"" ^^^ ^^^^^ ^""^^^^ *^^® Parties to such fained, covenous and fraudulent 
 avowing same. Gifts, Grants, Leases, Charges or Conveyances before exj^ressed, or 
 being privy and knowing of the same or any of them, which after 
 the Twentieth Day of Ajn'il next coming shall wittingly and willingl}' 
 put in use, avow, maintain, justify or defend the same or any of 
 them, as true, simple and done, had or made, bond fide, or upon 
 good Consideration, to the Disturbance or Hindrance of the said 
 Purchaser or Purchasers, Lessees or Grantees, or of or to the 
 Disturbance or Hindrance of their Heirs, Successors, Executors, 
 Penahy. Administrators, or Assigns, or such as have or shall claim any Thing 
 
 by, from or under them or any of them, shall incur the Penalty and 
 Forfeiture of one Year's Value of the said Lands, Tenements, and 
 Hereditaments so purchased or charged ; the one Moiety whereof to 
 be to the Queen's Majesty, her Heirs and Successors, and the other 
 Moiety to the Party or Parties grieved by such fained and fraudulent 
 Gift, Grant, Lease, Conveyance, Incumbrance or Limitation of Use, 
 to be recovered in any of the Queen's Courts of Record, by Action 
 of Debt, Bill, Plaint or Information, wherein no Essoin, Protection or 
 Wager of Law shall bo admitted for the Defendant or Defendants ; 
 Impiisoumcnt. and also being thereof lawfully convicted, shall sufter Imprisonment 
 for One Half Year without Bail or Mainprize.
 
 27 i:mz\i;i:tii, c. i. 553 
 
 IV. Providod also, nn.l I,r it o„ac(..,l l.v tl.o A..(l.<.rit v afoivsai-l, < • nvr-v^nr. , 
 That this Act or any Thin- tli..mn containo.l shall not oxton.l or": 
 
 bo constnicd to iniprach, dotVat, make void or frustrate any Convoyanco " 
 Assignment of Lease, Assurance, Grant, Cliai-re, Unso, Khtato', 
 Interest, or Limitation of Use or Uses, of, in, to or out of any 
 Lands, Tenements, or Ileroditaments, ]ierotof(.ro at any Time hail 
 or made, or hereafter to I..- had or made, upon or for /■'ooil Con- 
 sideration and hondjide, to any person or persons, IJodies rolitick 
 or Corporate; any Thing iieforo mentioned to the contniry lioi-cof 
 notwithstanding. 
 
 V. And bo it further enacted by the Authority aforesaid, That if IjinJi. fin.t 
 any Person or Persons have heretofore sithcnee tla* Heginning of tho ^""*V>>'*' *'''' 
 Queen's Majesty's lleign that now is, made or hereafU-r shall n.ako i:!!i'r.T ''^-, 
 any Conveyance, Gift, Grant, Demise, Charge, Limitatif)n of list. "•"' "^''^ ' 
 or Uses, or Assurance of, in or out of any ].ands, 'J'enements or gKt'ili.''" 
 Hereditaments, with any Clause, Provision, Article or Conditicjn of 
 Eevocation, Determination or Alteration, at his or their V>'i\\ or 
 Pleasure, of such Conveyance, Assurance, CJrants, Limitations of 
 
 Uses and Estates of, in or out of the said Lands, Tenements, 
 or Hereditaments, or of, in or out of any Part or Parcel of them, 
 contained or mentioned in any Writing, Deed of Indenture of such 
 Assurance, Conveyance, Grant or Gift; and after such Conveyance, 
 Grant, Gift, Demise, Charge, Limitation of Uses or Assurance so 
 made or had, shall or do bargain, sell, demise, grant, convey or charge 
 the same Lands, Tenements or Hereditaments, or any Part or Parcel 
 thereof, to any Person or Persons, Bodies Politick and Corjioratc, 
 for Money or other good Consideration paid or given (the said Fii-st 
 Conveyance, Assurance, Gift, Grant, Demise, Charge or Limitation, 
 not by him or them revoked, made void or altered, according to the 
 Power and Authority reserved or expressed unto him or them in and 
 by the said secret Conveyance, Assurance, Gift or Grant,) That then 
 the said former Conveyance, Assurance, Gift, Demise and Grant, as Firet Contcr- 
 touching the said Lands, Tenements and Hereditaments, so after °"*^° ^ 
 bargained, sold, conveyed, demised or charged, against the saiil Bar- 
 gainees, Vendees, Lessees, Grantees and every of them, tlieir Ilcii-s, 
 Successors, Executors, Administrators and Assigns, and against all and 
 every Person and Persons which have, shall or may lawfully claim any 
 Thing, by, from or under them or any of them, shall be deemed, taken 
 and adjudged to be void, frustrate, and of none EfVect, by Virtue and 
 Force of this present Act. 
 
 VI. Provided nevertheless, That no lawful Moitgage made or to l>e Mortpa!:rr» 
 made bond fide, and without Fraud or Covin, upon good Consideration, '"wfull v lunii.-. 
 shall be impeached or impaired by Force of this Act, but shall stand in 
 
 the like Force and Effect as the same .should have done if this Act had 
 never been had nor made; any Thing in this Act to the contrary in 
 any wise notwithstanding. 
 
 VII. And be it further enacted l)y the Authority aforesaid, That all
 
 5G0 
 
 ELIZABETH, C. 4. 
 
 Statute Mer- 
 chant, &c. to 
 be entered. 
 23 H. 8. c. 6. 
 
 Fee. 
 
 Statute not 
 entered, void 
 against Pur- 
 chaser. 
 
 Clerk not en- 
 tering, or not 
 endorsing 
 Statute. 
 
 Penalty. 
 
 Clerk of Re- 
 cognizances. 
 
 Fee. 
 
 the whole Tenor and Contents of all Statutes Merchant and Statutes of 
 the Staple, hereafter to be kno-wledflrod, shall within Six Months next 
 after such Knowledgiug, be entered in the Othce of the Clerk of 
 Recognizances, taken according to the Statute made in the Three and 
 twentieth Year of the Reign of the late King Henry the Eighth, by the 
 shewing forth of the said Statute Merchant or Statute Staple so know- 
 ledged unto the said Clerk ; which said Clerk of the Recognizances shall 
 enter, or cause to be entred, the same Statutes into a Book for that 
 purpose to be provided and safely kept by him, taking Eight Pence and 
 no more, for eveiy such Entry. 
 
 VIII. And be it further enacted. That if the Party to whom any 
 such Statute Merchant or of the Staple shall be knowledged, his 
 Executors or Administrators do or shall not within Four Months next 
 after the Knowledging of any such Statute, bring and delivei-, or cause 
 to be brought and delivered, unto the said Clerk, or his Deputy or 
 Deputies for the Time being, all and every such Statute and Statutes 
 as shall be so knowledged to him or to his Use, whereby and to the 
 intent that the said Clei-k, his Deputy or Deputies, may take and enter 
 a true Copy thereof ; that then every such Statute Merchant and of 
 the Staple not so entered shall be void, frustrate and of none Effect, 
 against all and every such Person and Persons, and Bodies Politick and 
 Corporate, their Heirs, Successor.^, Executors, Administrators and 
 Assigns only, as shall, after the Knowledging of the said Statutes or 
 any of them, purchase for Money or other good Consideration, the 
 Lands, Tenements or Hereditaments which were liable to the same 
 Statute Merchant or of the Staple, or any Pait or Parcel thereof, or 
 any Rent, Lease or Profit of or out of the same. 
 
 IX. And if the said Clerk, or his Deputy or Deputies for the Time 
 being, shall not upon such Shewing and Delivery unto him or them 
 of any Statute jMerehant or of the Staple, enter or cause to be entred 
 the same in his said Book within the said Time of Six Months, and 
 also endorse upon every such Statute so by him entred, the Day and 
 Year of his said Entry, with his or their own Name ; that then every 
 such Clerk failing or defective in that Behalf, shall forfeit and lo.so 
 for every Statute ]\Ierchant and of the Staple so brought unto him or 
 them, and not entered and endorsed, or caused to be entred and 
 endorsed as aforesaid, the Sum of Twenty Pounds ; the one Moiety 
 whereof to be to the Queen's Majesty, her Heirs and Successors, and 
 the other Moiety to him or them that will sue for the same in any 
 of the Queen's Courts of Record, by Actions of Debt, Bill, Plaint or 
 Information wherein no Essoin, Protection or Wager of Law shall 
 be allowed. 
 
 X. And be it further enacted by tlie Authority aforesaid. That no 
 Clerk of the said Recognizance shall or may take, for or in respect 
 of any Search to be made for or concerning any Statute Merchant 
 or of the Staple so to be entered as aforesaid, above Two pence for one 
 Year's Search, and so after the Rate of Two pence for every Year and
 
 11ILL8 OF SALH ACT lS7,S. 5GI 
 
 not abovo, upon Pain to forfeit and lose in llic PaHy or Parlies {ji'ifvcd PchaIij-. 
 
 thereby, Twenty Times ns much ns lio shall take contrary to tlio tnio 
 
 Meaning of tliis Act, to bo reeoverecl in any (if the Queen's Maj«-sty's 
 
 Courts of Eecord, by Action of Debt, IJill, Plaint or Infornialion, 
 
 wherein no Protection or Wa«,'er of l^aw Khali b(> allowed. This Act Continuanco. 
 
 to continue for the Space of T(>n "N'ears. and from (henct fMrtli unto (he 
 
 End of the Parliament then next followiuL,'. 
 
 XI. Provided always, Tliat this Act, nor any Thin^,' tliercin con- AMumnco of 
 tained, shall extend or be construed to make L'ood any I'urchase. rJi-ant. j-"'"'*' '.'••• , 
 
 T /n -r. /•, (• • n T ' 1 r., ' kaUd, in wlint 
 
 Liease, tnari:;e or J^roht, ot, ni or out ot any Lands, lenements or c«»c not iii«»le 
 irereditanients heretofore madt^ ^ oid, defeated or undone, by reason K<^- 
 of any former Conveyance, Grant or Assurance, so as tho Pai-ty or 
 Parties, or their Heirs or Assii^ns, which have so defeated or niado 
 void the same, were in actual Possession the First Day of this present 
 Parliament, of or in the said Lands, Tenements or llereditaments, 
 whereof or out of which any such Purchase, (Jrants, i^easo, ('harj^o 
 or Profit was made. 
 
 XII. Provided that tliis Act, nor any Tluui,' thei-ein contained, sliall Star Chamber. 
 extend in any Hort to restrain or impaii- the Jurisdiction, Power or 
 Authority of the Court of Star ('liainlior. [Slar CltamJi' r uhuliahil 
 
 IG Car. 1, c. 10.] 
 
 \2Iade 2icr2')etual, 39 Ell:, c. 18. §§ 01, o2.] 
 
 No. III. 
 
 41 & 42 Vict. c. 01. 
 
 An Ad to consolidate and amend the law for 2^revcn(in(j Fratuh 
 uiwii Creditors hy Secret JJllls of Sale of J'ersomd Chattels. 
 [22nd Jubj 1878.] 
 
 Whereas it is expedient to consolidate and amend the law relatiiii,' to 
 bills of sale of personal chattels : 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal :uid 
 Commons in this present Parliament as.sembled, and by the authority 
 of the same, as follows : 
 
 1. This Act may be cited for all purposes as the Bills of Sale Act, Short title 
 
 1878. 
 
 2. This Act shall come into operation on the lii->t day of January 
 
 o o
 
 5G2 BILLS OF SALE ACT 1878. 
 
 Commence- one thousand eight hundred and sevonty-nino, which d;\y is in this 
 °^^"*- Act referred to as tlie commencement of this Act. 
 
 Api.lication «>• This Act sliall appl)' to every bill of sale executed on or after 
 
 "' '^^^- the first day of January one thousand eight hundred and seventy-nine 
 
 (whether the same be absolute, or subject or not subject to any trust) 
 
 wliereby the holder or grantee has power, either with or witliout 
 
 notice, and either immediately or at any future time, to seize or take 
 
 possession of any personal chattels comprised in or made subject to 
 
 such bill of sale. 
 
 Interpretation 4. In this Act the following words and expressions shall have the 
 
 ot terms. meanings in this section assigned to them respectively, unless there 
 
 be something in the subject or context I'epugnant to such construction ; 
 
 that is to say : 
 
 The expression " bill of sale " shall include bills of sale, assignments, 
 transfers, declarations of trust without transfei', inventories of 
 goods with receijit thereto attached, or receipts for purchase 
 moneys of goods, and other assurances of personal chattels, and 
 also powers of attorney, authorities, or licenses to take possession 
 of personal chattels as security for any debt, and also any 
 agi-eement, 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 secuiity thereon, shall be 
 conferred, but shall not include the following documents; that 
 is to say, assignments for the benefit of the creditors of the 
 jierson making or giving the same, marriage settlements, transfei's 
 or assignments of any ship or vessel or any share thereof, trans- 
 fers of goods in the ordinary course of business of any trade or 
 calling, bills of sale of goods in foreign parts or at sea, bills of 
 lading, India warrants, warehouse-keepei's' certificates, Avarrants 
 or orders for the delivery of goods, or any other documents used 
 in the ordinary course of business as proof of the possession or 
 control of goods, or authorising or purporting to authorise, either 
 by indorsement or by delivery, the possessor of such document to 
 transfer or receive goods thereby represented : 
 
 The expression " personal chattels " shall mean goods, furniture, 
 and other articles capable of complete transfer by delivery, and 
 (when separately assigned or charged) fixtui'es and growing crops, 
 l)ut shall not include chattel interests in real estate, nor fixtures 
 (except trade machinery as hereinafter defined), when assignetl 
 together with a freehold or leasehold interest in any land or 
 Iniilding to which they are aflixed, nor growing crops when 
 assigned together with any interest in the land on Avhich they 
 grow, nor shares or interests in tlie stock, funds, or securities 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 l)y virtue of any covenant
 
 BILLS OF SAU: ACT 1 87^. 5C3 
 
 or ngroomont or «{' tlio custom of tlic country oti^'lit not to l.o 
 
 removed iVom nny lann w liciv the s;i arc nt llio time of nmkinjj 
 
 or givinif ol" sucli hill u\' s;ilo : 
 
 Personal diattcls shall l»o dccmcil to lie in tlio "apparent possesxion " 
 of the ]HMM)ii uiiikiiii;- or i,'ivin<j; a bill of sale, so lonif as they 
 remain or arc in or upon any house, niill, warehouse, hnililin;,', 
 works, 3'aril, land, or other premises oofiuiiied hy him, or are uwsl 
 and enjoyetl l)y him in any place whatsoever, notwithstandinf,' that 
 formal possession thereof may have })een taken hy or ;,'iven to any 
 other person : 
 
 " Prescribed " means prcscribeil by rulr> made under the pronsions 
 of this Act. 
 
 5. From and after the commencement of this Act trade machinery Application 
 shall, for the purposes of this Act, be deemed to be personal chattels^ uaiU' 
 and any mode of disposition of trade machinery by the owner thereof macliincry. 
 which would ho a bill of sale as to any other personal chattels shall 
 be deemed to be a bill of sale within th(> meaninir of thi< Act. 
 
 For the purposes of this Act — 
 
 "Trade machinery " means the machinery used in or attached \o 
 any factory or woi-kshop : 
 
 1st. Exclusive of the 'fixed motive powers, such ;ls the water- 
 wheels and steam engines, and the steam boilei-s, 
 donkey enf^ines, and other fixed api»urtenances of 
 the said motive powers; and, 
 2nd. Exclusive of the iixed power machinery, such as the shafts, 
 wdieels, drums, and their fixed appurtenances, which 
 transmit the action of the motive powers to the other 
 machinery, fixed and loose ; and, 
 3rd. Exclusive of the pipes for steam, gas, and water in the 
 factory or w^oi'kshop. 
 
 The machinery or effects excluded hy this section 
 
 from the definition of trade machinery shall not 
 
 be deemed to be personal chattels within the 
 
 meaning of this Act. 
 
 "Factory or Avorkshop " means any premises on which any mantial 
 
 labour is exercised hy way of trade, or for purpo.'^-s of gain, ia 
 
 or incidental to the following purposes or any of them; that 
 
 is to say : 
 
 (a) In or incidental to the making nny article or part of an 
 
 article ; or 
 {h) Tn or incidental to the altering, repairing, ornamenlinc, 
 
 finishing, of any article ; or 
 (c) In or incidental to the adapting for sale any article. 
 
 G. Every attornment, instrument, or agi'ecment, not being n mining Ccrtixm in- 
 lease whereby a power of distress is given or agree.l to.ln^ given hy "f"'"^"'" 
 ' - 2
 
 5G4 
 
 BILLS OF Sx\LE ACT 1878. 
 
 giving powers 
 of distress to 
 be subject to 
 this Act. 
 
 Fixtures or 
 growing 
 crops not to 
 be deemed 
 separately 
 assis^ned when 
 the hind passes 
 by the same 
 instrument. 
 
 Avoidance of 
 unregistered 
 bill of sale in 
 certain cases. 
 
 any person to any other person by way of .security for any present, 
 future, or contingent debt or advance, and whereby any rent is 
 reserved or made payable as a mode of providing for the pa}-ment 
 of interest on such debt or advance, or otherwise for the purpose of 
 such security only, shall be deemed to be a bill of sale within the 
 meaning of tliis Act of any personal chattels which may be seized or 
 taken under such power of distress. 
 
 Provided, that nothing in this section shall extend to any mortgage 
 of any estate or interest in any land, tenement, or hereditament which 
 the mortgagee, being in possession, shall have demised to the mortgagor 
 as his tenant at a fair and reasonable rent. 
 
 7. No fixtures or growing crops shall be deemed, under this Act, 
 to be separately assigned or charged by reason only that they are 
 assigned by separate words, or that power is given to sever them from 
 the land or building to which they are affixed, or from the land on 
 which they grow, Avithovit otherwise taking possession of or dealing 
 with such land or building, or land, if by the same instrument any 
 freehold or leasehold interest in the land or building to which such 
 fixtures are affixed, or in the land on which such crops grow, is also 
 conveyed or assigned to the same persons or person. 
 
 TJie same rule of construction shall be applied to all deeds or 
 instruments, including fixtures or growing crops, executed befoi'o 
 the commencement of this Act and then subsisting and in force, 
 in all questions arising vtnder any bankruptcy, liquidation, assignment 
 for the lienefit of creditors, or execution of any process of any court, 
 which shall take place or be issued after the commencement of 
 this Act. 
 
 8. Every bill of sale to which this Act applies shall be duly attested 
 and shall be registered under this Act, within seven days after the 
 making or giving thereof, and shall set forth the consideration for 
 which such bill of sale was given, otherwise such bill of sale, as 
 against all trustees or assignees of the estate of the person whose 
 chattels, or any of them, are comprised in such bill of sale under 
 the law relating to bankruptcy or liquidation, or under any assign- 
 ment for the benefit of the creditors of such person, and also as 
 against all sheriffii' officers and other persons seizing any chattels 
 comprised in such l)ill of sale, in the execution of any process of 
 any court autliorising the seizure of the chattels of the person by 
 whom or of whose chattels such bill has been made, and also as 
 against every person on whose behalf such process shall have been 
 issued, shall be deemed fraudulent and void so far as regards the 
 property in or right to the possession of any chattels comprised in 
 such bill of sale which, at or after the time of filing the petition 
 for bankruptcy or liquidation, or of the execution of such assignment, 
 or of executing such process (as the case may be), and after the 
 expiration of such seven days are in the possession or apparent 
 possession of the person making such lull of sale (or of any person
 
 i51LI,S OF HALi: ACT 1 87S. 5G5 
 
 against wlinin (ho ]ii'occ'S.s has issuotl vintltT uv in tlio i-xccution t.f 
 which such liill li.is Ixen made or given, iw the ciiso may Ik-). 
 
 9. Where a sul)sequent bill of Siile is executed within <>r on lin' Avoi.lnnco 
 expiration of seven days after tho execution of a prior unregihteix-*! |j„!,'|j'^ ,"JJ,' 
 bill of sale, and comprises all or any part of tho pei-sonal ci»att4'Irt bilU of mU*. 
 comprised in such prior bill of sale, then, if such subseciueut bill 
 
 of sale is gi\en as a security for the same debt as is wcured by 
 tho prior bill of sale, or for any part of such debt, it shall to tho 
 extent to which it is a security for the same debt or part thereof, 
 and so far as respects the personal chattels or part thereof comprihed 
 in the prior bill, bo absolutely V(jid, uidess it is proved to tho 
 satisfaction of the Court having cognizance of tho cnso that tlio 
 subsequent bill of sale was bona tide given for the purpose of correcting 
 some material error in the prior bill of sale, and not for tho purpose 
 of evading this Act. 
 
 10. A bill of sale shall be attested and registered under this Act M..i,...f 
 
 in the following manner : r'.'pj'"''"""? 
 
 ° bills ot imlc. 
 
 (1) The execution of every bill of sale shall be attested by a solicitor 
 
 of the Supreme Court, and the attestjition shall state that 
 before the execution of the bill of sale the ell'ect thereof has 
 been explained to the grantor by the attesting solicitor : 
 
 (2) .Such l)ill, with every schedule or inventory thereto annexed 
 
 or therein referred to, and also a true copy of such bill and 
 of eveiy such schedule or inventory, and of every attestation 
 of the execution of such bill of sale, together with an alVKlavit 
 of the time of such bill of sale being made or given, and of 
 its due execution and attestation, and a description of the 
 residence and occupation of the person making or giving 
 the same (or in case the same is made or given by any 
 person under or in the execution of any prwess, then a 
 description of the residence and occupation of tho pei-son 
 against whom such process issued), and of every attesting 
 witness to such bill of sale, shall be [.resented to and the 
 said copy and affidavit shall Ijc tiled with the registnir 
 within seven clear days after the making or giving of such 
 bill of sale, in like manner as a warrant of attorney in any 
 personal action given by a trader is now by law mjuix-ed 
 to be filed : 
 (3) If the bill of sale is made or given subject to any defeasance 
 or condition, or declaration of trust not contained in tho 
 body thereof, such defeasance, condition, or .ledamtion shall 
 be deemed to be pjut of the bill, and shall be written on 
 the same paper or parcliment therewith l)eftn-e the registm- 
 tion, and shall be truly set forth in the coi.y fde.l under 
 this Act therewith and as part thereof, otherwise the 
 registration shall he void.
 
 5G6 BILLS OF SALE ACT 1878. 
 
 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 registration respectively as regards such 
 chattels. 
 
 A transfer or assignment of a registered bill of sale need not be 
 registered. 
 Renewal of 11, The registration of a bill of sale, whelher executed before or 
 
 registration, .^f^g^, ti^g commencement of this Act, must l^e renewed once at least 
 every live years, and if a period of live years elapses from the registra- 
 tion or renewed registration of a bill of sale without a renewal or 
 further renewal (as the case may be), the registration shall become 
 void. 
 
 The renewal of a registration shall be eflectod by filing with the 
 resisti-ar an affidavit stating the date of the bill of sale and of the 
 last registration thereof, and the names, residences, and occupations 
 of the parties thereto as stated therein, and that the bill of sale is still 
 a subsisting security. 
 
 Every such affidavit may Ite in the form set forth in the Schedule (A) 
 to this Act annexed. 
 
 A renewal of registration shall not become necessary by reason only 
 of a transfer or assignment of a l)ill of sale. 
 Form of 12. The registrar shall keep a book (in this Act called '■ the 
 
 register. register") for the purposes of this Act, and sliall, upon the Jiling of 
 
 any l)ill of sale or copy under this Act, enter therein in the form set 
 forth in the .second schedule (H) to this Act annexed, or in any other 
 prescribed form, the name, residence, and occupation of the person by 
 whom the bill was made or given (or in case the same was made or 
 given by any person under or in the execution of process, then the 
 name, residence, and occupation of the person against whom such 
 process was issued, and also the name of the person or persons to whom 
 or in whose favour the bill was given), and tiie other particulars shown 
 in the said schedule or to be prescriljed under this Act, and shall 
 number all such bills registered in each year consecutively, according to 
 the respective dates of their registration. 
 
 Upon the registration of any affidavit of renewal the like entry shall 
 be made, with the addition of the date and number of the la.st previous 
 entry relating to the same bill, and the bill of sale or copy originally 
 tiled shall be thereupon marked with the number affixed to such 
 affidavit of renewal. 
 
 The registrar shall also keep an index of the names of the gruntors 
 of registered bills of sale with reference to entries in the register of 
 the bills of sale given by each such grantor. 
 
 Such index shall be arranged in divisions corresponding witli (lir 
 letters of the alphabet, so that all grantors whose surnames begin with 
 the same letter (and no others) shall be comprised in one division, 
 but the arrangement within each such division need not be strictly 
 alphabetical.
 
 BILLS OF SALE A< T 1878. 5G7 
 
 13 TliG masloisr.f l),,. Snp.vuH. Cmi.I <.f .Ju.linitiiro ntUu-hcd to The repitrnr. 
 the Queens J'.eucli JHvision of tlio Jli-1, Court of Justice, or such 
 other ollicers as may fur the time heiu- ho lussi-nea for this purposo 
 under the provisions of the Supremo Court of Ju.licaturo Act«, 187:J 30 & 37 Vict 
 and 1875, shall bo the re-istrar for the imri.oses of (his Act,.iiul .my ..n.- !, ^1^ . ... 
 of the said masters may perform all or any of tiuMluti...s (,f tho n-gi.strar. c^7V' '* 
 
 14. Any jud-e of the lli-h Court of Justice, on l,oin^' satisHod that HcctilicMion 
 the omission to register a bill of sale or an ailidavit of renewal thereof «fffg'«««''-- 
 within the time prescribed by this Act, or tho oini.ssion or niissU-.te- 
 
 ment of the name, residence, or occupation of any pei-son, was iicci- 
 dental or due to inadvertence, may in his discretion order hucli 
 omission or misstatement to bo rectilied by tln' iiis.'i(i<.ii in tho regist*.'!' 
 of the true name, residence, or occupation, or by exlendin;,' the tiino 
 for such registration on such terms and conditions (if any) as to 
 security, notice by advertisement or otherwise, or a.s to any other 
 matter, as he thinks fit to direct. 
 
 15. Subject to and in accordance with any rules to l)e made under Kntrj of 
 and for the purposes of this Act, the registrar may order a memo- b*''"''"*-'!*"!. 
 randum of satisfaction to be written upon any registei-ed copy of a 
 
 bill of sale, upon the prcscrilied evidence l)eing given that the del)t (if 
 any) for which such bill of sale was made or given has been satislied or 
 discharged. 
 
 IG. Any person shall be entitled to have an ollice copy or extract fopirs may 
 of any registered bill of sale, and ailidavit of execution tiled 1 1 leiv - ^' '"'"■■"• ^<^' 
 with, or copy thereof, and of any ailidavit filed therewith, if any, or 
 registered atiidavit of renewal, upon paying for the s:ime at the like 
 rate as for office copies of judgments of tho High Court of .Ju.-^tico, 
 and any copy of a registered bill of sale, and afliilavit purporting to 
 be an office copy thereof, shall in all courts and before all arbitratoi-s 
 or other persons, be admitted as priiuu facie evidence thereof, ami of 
 the fact and date of registration as shown thereon. Any pei-son sliail 
 be entitled at all reasonable times to search the ivgister and every 
 registered bill of sale, upon payment of one shilling for every cojiy 
 of a bill of sale inspected ; such payment shall be made by a judicature 
 stamp. 
 
 17. Every affidavit rcrpiired by or for the purposes of this Act may AffiJaviu*. 
 be sworn before a master of any division of the High Court of Ju.^tice, 
 
 or before any commissioner empowered to take affidavits in the Supremo 
 Court of Judicature. 
 
 Whoever wilfully makes or uses any false affidavit for the purpo-ses 
 of this Act shall be deemed guilty of Avilful and corrupt perjury. 
 
 18. There shall be paid and received in common law stamps the I-Va. 
 following fees, viz. : — 
 
 On tiling a bill of sale ....... -■•''■ 
 
 On tiling the affidavit of execution of a bill of sale . . -.v. 
 
 On the affidavit used for the purpose of re-registericg a bill 
 
 of sale (to include the fee for tiling .... on.
 
 568 BILLS OF SALE ACT 1878. 
 
 Collection of 19. Sectioa twenty-six of the .Supreme Couit of Judicature Act, 
 fees under 1875, and any enactments for the time beinrj in force amending or 
 G. 77. s. 20. ' substituted for that section, shall apply to fees under this Act, and an 
 
 order under that section may, if need be, be made in relation to such 
 
 fees accordingly. 
 Order and 20. Chattels comprised in a bill of sale which has Ijccn and continues 
 
 disposition. j-Q jj^j j^iy registered under this Act shall not be deemed to Ije in the 
 o2^ oj \ ict. possession, order, or disposition of the grantor of the bill of sale within 
 
 the meaning of the Bankruptcy Act, 18G9. 
 Kulcs. 21. Rules for the purposes of this Act may be made and altered 
 
 36 & 37 \ ict. fi-ona time to time by the like persons and in the like manner in which 
 38 & 39 Vict. I'ules and regulations may be made under and for the ])urposes of the 
 c- 77. Supreme Court of Judicature Acts, 1873 and 1875. 
 
 Time for 22. When the time for registering a bill of sale expires on a Sunday, 
 
 registration. ^^. oti^e^. j.^y on which the registrar's otiice is closed, the registration 
 
 shall be valid if made on the next following day on which the office is 
 
 open. 
 Repeal of 23. From and after the commencement of this Act, the Bills of 
 
 f7^&18Vict. '^'^'^ ^^*' 1854, and the Bills of Sale Act, 18GG, shall be repealed: 
 0. 36. Provided that (except as is herein expressly mentioned with respect to 
 
 29 & 30 \ let. construction and with respect to renewal of registration) nothing in 
 
 this Act shall affect any bill of sale executed before rhe commencement 
 
 of this Act, and as regards bills of sale so executed the Acts hereby 
 
 repealed shall continue in force. 
 
 Any renewal after the commencement of this Act of the registration 
 
 of a bill of sale executed before the coumiencement of this Act, and 
 
 registered under the Acts hereby I'epealed, shall be made under this 
 
 Act in the same manner as the renewal of a registration mad(.' under 
 
 this Act. 
 
 E-Ktent of 21. This Act shall not extend to Scotland or to Ireland. 
 
 Act. 
 
 Section 11. 
 
 SCHEDULES. 
 
 SCHEDULE A. 
 
 I \A. 7?.] of do swear 
 
 that a bill of sale, bearing date the day of 
 
 18 \inso.rt the date of the bill], and made between [insert the names 
 and descriptions of the parlies in the oriyinal bill of salr\, and which 
 Haid bill of sale [or, and a copy of which said bill of sale, as the case 
 may be] was registered on the day of 
 
 18 [insert date (f reyistration], is still a subsisting .security. 
 
 Sworn, A:c.
 
 I5ILLS OF SALL: ACT 188'J. 
 
 SCHKDIIJ-; i;. 
 
 5C9 
 
 Sttlinll 1 
 
 Satis fivc- 
 
 tioii 
 entered. 
 
 No. 
 
 By wliom (jiven for 
 
 against whom process 
 
 isHuuO). 
 
 Name. 
 
 licsi- 
 donco. 
 
 Occupa- 
 tion. 
 
 To whom 
 givcu. 
 
 Nature of 
 iiiNlru- 
 mcut. 
 
 DaU. 
 
 Datoof 
 
 rcirlklrk- 
 
 Uuii. 
 
 1 DiUof 
 
 riTrl»lm- 
 
 timi uf 
 
 amiUvlt 
 
 i.r 
 
 No. IV. 
 
 45 & IG Vict. c. I:J. 
 
 All Act to amend the Bilk of Scdc Act, 1879. []S(h Atijud 1882.] 
 
 Whereas it is expedient to amend the Bills of Sale Act, ].s78 : ii & 42 Vici. 
 
 Be it enacted by the Queen's most Excellent 31ajesty, hy and with ^- '^^• 
 the advice and consent of the Lords .Spiritual and Temporal and 
 Commons in this present Parliament assemhled, ami hy the authority 
 of the same, as follows : 
 
 1. This Act may be cited for all purposes as the Bills of Sale Act Short title. 
 (1878) Amendment Act, 1882; and this Act and the Bills of Sale Act, 
 
 1878, may be cited together as the Bills of »Sale Acts, 1(578 and 1882. 
 
 2. This Act shall come into operation on the first day of November f'ommenro- 
 one thousand eight hundred and eighty-two, which date is hereinafter '"'^"^ '''^ 
 referred to as the connuencement of this Act. 
 
 3. The Bills of Sale Act, 1878, is hereinafter referred to as ** the Constniction 
 principal Act," and this Act shall, so far as is consistent with the tenor 4i''^4o vi,.| 
 thereof, bo construed as one with the piincipal Act; Ijut unless tiiu c. 31. 
 context otherwise requires shall not Jipply to any bill of sale didy rojji.s- 
 
 tered before tho commencement of this Act, so long as the rciri^tratinii 
 thereof is not avoided by non-renewal or otherwise. 
 
 The expression " bill of sale," and other expressions in tiiis Act, liavc 
 the same meaning as in the princi[)al Act, except as to bills of sale or 
 other documents mentioned in section four of the j)rincipal Act, whidi 
 may be given otherwise than by way of security for the payment of 
 money, to which last-mentioned bills of sale and other documents this 
 Act shall not nj)])ly.
 
 570 BILLS OF SALE ACT 1882. 
 
 r.ill of sale 4. Every bill of sale shall have annexed thereto or ^^-l■itten thereon a 
 
 ^° '^'Y*^! nf schedule containing an inventory of the personal chattels comprised in 
 
 property the bill of sale ; and such bill of sale, save as hereinafter mentioned, 
 
 attached .shall have effect only in respect of the personal chattels specifically 
 
 described in the said schedule ; and shall be void, except as against the 
 
 grantor, in respect of any personal chattels not so specifically described. 
 
 r.ill of sale 5, Save as hereinafter mentioned, a bill of sale shall be void, except 
 
 nnt toaflect .^^ against the grantor, in respect of any personal chattels specifically 
 
 property. described in the schedule thereto of which the grantor was not the true 
 
 owner at the time of the execution of the bill of sale. 
 
 Exception as G. Nothing contained in the foregoing sections of tliis Act shall 
 
 to certain render a bill of sale void in respect of any of the following things ; 
 things. , . i. ^ 
 
 that IS to say : 
 
 (1) Any growing crops separately assigned or charged where such 
 
 crops were actually gi'owing at the time when the bill of sale 
 was executed. 
 
 (2) Any fixtures separately assigned or charged, and any plant or 
 
 trade machinery where such fixtures, plant, or trade machi- 
 nery are used in, attached to, or In-ought upon any land, farm, 
 factory, workshop, shop, house, warehouse, or other place in 
 substitution for any of the like fixtures, plant, or trade machi- 
 nery specilieally described in the schedule to sucli lull of sale. 
 
 Bill of sale 7. Personal chattels assigned under a bill of sale shall not be liable 
 
 with power to ^^ |^g seized or taken possession of by the grantee for any other than 
 seize except m , ~ ,, . ./ o 
 
 certain events the followuig causes : — 
 to he void. 
 
 (1) If the grantor shall make default in payment of the sum or 
 
 sums of money thereby secured at the time therein provided 
 for payment, or in the performance of any covenant or 
 agreement contained in the bill of sale and necessary for 
 maintaining the security : 
 
 (2) If the grantor shall become a bankrupt, or suffer the said goods 
 
 or any of them to be distrained for rent, rates, or taxes : 
 (.j) If the grantor shall fraudulently either remove or suffer the said 
 goods, or any of them, to be removed from the premises : 
 
 (4) If the grantor shall not, without reasonable excuse, upon demand 
 
 in writing by the grantee, produce to him his last leceipts for 
 rent, rates, and taxes : 
 
 (5) If execution shall have been levied against the goods of the 
 
 grantor under any judgment at law : 
 
 Provided that the grantor may within five days from the seizure or 
 taking possession of any chattels on account of any of the above-men- 
 tioned causes, apply to the High Coiut, or to a judge thereof in 
 chambers, and such court or judge, if satisfied that by payment of 
 money or otherwise the said cause of seizure no longer exists, may
 
 BILLS OF SALE ACT 188 'J. 571 
 
 restrain tlie <?ranteu IVoni iviuovin- or M-llin- ll,,- siii.l ,-l,,i(t..l>, or iiiiiy 
 make such other order as may seem just . 
 
 8. Every bill of sale shall be duly attoste.l, an-l siuil i... iv-istoml ni||.,f»..'o 
 under the principal Act within seven dear days after tlio exceulini, •"•-»""1 
 thereof, or if it is executed in any place out of Kn;,dand, then witliiii 1',',' ' 
 seven clear days after the time at which it would in the ordinm-y eourso 
 
 of post arrive in England if posted immediately after the exocutioii 
 thereof; and shall truly set forth the consideration for which it was 
 given; otherwise such bill of sale shall bo void in respect of tli- i.er.soii;d 
 chattels comprised therein. 
 
 9. A bill of sale made or given l)y way of security for the p..yiii.i.i ot l-nnu ni bill 
 money by the grantor thereof shall be void unless nuide in aJcordance "'"'"'•-'• 
 with the form in the schedule in this Act annexed. 
 
 10. The execution of every bill of .sale by the grantor shall Ik; attested Attestation. 
 by one or more credible witness or witnesses, not being a party or iiartie-s 
 thereto. So much of section ten of the principal Act as re<piii-es that 
 
 the execution of every bill of sale shall l)e attested by a solicitor of tho 
 Supreme Court, and that the attestation shall state that before tho 
 execution of the bill of sale the ellbct thereof has been cxpb.iin'd i.. ib.- 
 grantor by the attesting witness, is hereby repealed. 
 
 11. AVhcre the affidavit (which under section ten of the i-.inicip.il I, 
 Act is re(]uired to accompany a bill of sale when presented for registra- '' 
 tion) describes the residence of the person making or giving the ^s-imo " 
 or of the person against Avhom the process is issued, to be in sonic place 
 
 outside the London l)ankruptcy district ;is defined by the J)ankrupt<'y 32& 3.1 Vid. 
 Act, 1809, or where the bill of sale describes the chattels enumerated '^•"'- "• '^• 
 therein as being in some place outside the said London bankrupt<-y 
 district, the registrar under the principal Act shall forthwith and 
 within three clear days after registration in tho principal registrv, 
 and in accordance with the prescribed directions, tnmsmit an 
 abstract in the prescribed form of the contents of such bill of sale t<> 
 the County Court registrar in whose district such i)laces are situate, 
 and if such places are in the district of difTerent regLsti*ai*s to eacli 
 such registrar. 
 
 Every abstract so transmitted shall be tiled, kept and imlexed by tho 
 registrar of the County Court in the prescribed manner, and any i>ers<)n 
 may search, inspect, make extracts from, and obtain copies of tho 
 abstract so registered in the like manner, and upon the like terms as to 
 payment or otherwise, as near as may be, as in tho ca.se of bills of sale 
 registered by the registrar under the principal Act. 
 
 12. Every bill of sale made or given in consideration of any sum llillofMlu 
 under thirty pounds shall be void. t'dtrSj 
 
 Lj. All personal chattels seized or of which possession is taken after {.|j^„p|, ^^ 
 the commencement of this Act, under or by virtue of any bill of 8jdc tn b« rctnoTcil 
 (whether registered befoi-e or after tho commeueement of this Act), ""■ "^'^ 
 shall remain on the premises where they were so .seized or m taken 
 possession of, and shall not be removed or sold until after the expii-;!-
 
 57 -2 BILLS OF SALE ACT IS 82. 
 
 tion of five clear days from the day they were so seized or so taken 
 
 possession of. 
 
 Bill of sale 14. A bill of sale to which this Act applies shall be no protection in 
 
 not to protect i-espect of personal chattels included in such bill of sale, wliich but for 
 
 afjainst poor such bill of sale would have been liable to distress under a warrant for 
 
 and parochial ^he recovery of taxes and poor and other parochial rates, 
 
 ' ', , ^ 15. The eighth and the twentieth sections of the principal Act, and also 
 Repeal of part ,, , ° . , . , . . , , i - , • 
 
 of Bills of Sale all other enactments contained in the principal Act which are inconsis- 
 
 Act, 1878. t,Qnt with this Act are repealed, but this repeal shall not affect the 
 validity of anything done or suffered under the principal Act before the 
 commencement of this Act. 
 Inspection of 1^- So much of the sixteenth section of the principal Act as enacts 
 registered that any person shall be entitled at all reasonable times to search the 
 1 s sa e. register and every registered ):)ill of sale upon i)ayment of one shilling for 
 every copy of a bill of sale inspected, is hereby repealed ; and from and 
 after the commencement of this Act any person shall be entitled at all 
 reasonable times to search the register, on payment of a fee of one 
 shilling, or such other fee as may be prescribed, and subject to such 
 regulations as may be prescribed, and shall be entitled at all reasonable 
 times to inspect, examine, and make extracts from any and every 
 registered bill of sale without being required to make a written appli- 
 cation, or to specify any particulars in reference thereto, upon payment 
 of one shilling for each bill of sale inspected, and such payment shall 
 be made by a judicature stamp : Provided that the said extracts shall 
 be limited to the dates of execution, registration, renewal of registra- 
 tion, and satisfaction, to the names, addresses, and occupations of the 
 parties, to the amount of the consideration, and to any further pre- 
 sciibed particulars. 
 Debentures to 17. Nothing in this Act shall apply to any debentures issued by any 
 which Act not mortgage, loan, or other incorporated company, and secured upon the 
 ^ ''I'P •>' capital stock or goods, chattels, and eflects of such company. 
 
 Extent of Act. 18. This Act shall not extend to Scotland or Ireland. 
 
 SCHEDULE. 
 
 FuliM OF LiLL OF SxVI.i;. 
 
 This indenture, made the day of , between A.Jj. 
 
 of of the one part, and C. JJ. of of 
 
 the other part, witnesseth that in consideration of the sum of 
 £ now paid to A.JJ. hy C.JJ., the receipt of which the said 
 
 A.J!, hereby acknowledges [o7' ivhatever else the consideration may he\ 
 he the said A.Ji. doth hereby assign unto C D., Ids executors, administra-
 
 CASES FKOM (OXi; AND Mi:i.M(Hll MSS. 573 
 
 tors, and assiojns, all and sin-ular t li.- si'Vi-v.A diattrls and tliiiifjK fiptH^i- 
 iically do.soril)ed in tlio sclirdul.- Iht.-I,, ann.'X-.'d, hv way of Hocurity for 
 the paymont of the svun ..f r , a,;,i intorost Ihon^on nt 
 
 the rate of p.r ci-nt. poi- ainium [../• irhntevn' ehe ma;/ /-/• th>- rate]. 
 
 And the said .1. Jl. doth fuithn- ai^Mcc and declare that he will didy I»ay 
 to the said C. D. the principal sum aforesai.l, to.,'ether with (he interejit 
 then diu>, byecpial payments of £ on the day 
 
 "f [or whatever else iiiai/ be the Ntipidnted tiiiUH or time 
 
 ofixiyimnf]. And the said A. li. doth also a<,Tee with tiio said r. D. that 
 he will [liere insert O'rms as to insurance, paipnent of rent, or oth'tintMr 
 which the parties may ayrce to for the maintenance or ,1. i'.„s,,„r. ,,/' //„. 
 securitul\ 
 
 Provided always that the chattels hereby assip^ncl sliail nuL he haljlu 
 to seizure or to be taken possession of by the said ('. 1). Uw anv cause 
 other than those specified in section seven of the JJjlls of Sale Act 
 (1878) Amendment Act, 1882. 
 In witness, itc. 
 
 Signed and scaled by the said A.Ji. in the presence of me, 
 E. F. [fidd icitness's name, address, and descriftiuit I. 
 
 Cases selected from the rcduahlc CoxE AXD ]\lELMOTn MSS.. 
 and 2nihlished hy liermission. 
 
 No. V. 
 
 Stohes V. Stakes. 
 
 .MR. 
 
 Melmotli MSS., Vol. I. p. 20. YMin 1702^ 
 
 The plaintiff and her husband living in some difference, they ngi'ood Articlci of 
 to part, and be was to allow her £20 a year for a scpanite maintenance, wp^ .•;,,> 
 Thei^eupon he entered into articles with two friends of lii-s wife's to pay ^^ \ 
 her £20 a year during so long time as she should live apart fi*om In'm and uj.hclJ. 
 should maintain herself at her own charge, and (he trustees covenanted 
 to save him harmless against all debts that his wife should conti-act 
 during the time that they lived asunder. The husband pai<l the £20 
 a year for some time, but afterwards being sued for a tlebt of liis wifoH 
 (in which action the plaintiff w-as nonsuited and paid the usual c<»sts), 
 he refused to pay the £20 a year, and thereupon the wife preferifd u 
 bill against her husband and the trustees to have an execution of this - 
 agreement, to which the husband put in his answer, and theiY-by con- 
 fessed the agreement, but said that he was willing to receive his wife, 
 and said that if she would come home to him ho would provide for lier, 
 and therefore prayed that the articles might be sot aside. And it waa
 
 574 CASES FROM COXE AND MELMOTH MSS. 
 
 urged in his belialf that to decree a performance of this agreement 
 would be to decree a divorce, vliich this Court woidd never do ; and so 
 my Lord Nottingham refused to do in the caseof Mihlmct)/ v. Mlhlmay [it). 
 But it was answered by the Court that this differs from that case, foi* 
 there was an elopement, but here is a parting by consent, and the husband 
 had put it out of liLs o\n\ 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 th»^ 
 husband should pay the arrears and the g^o^\•ing rent, out of which 
 should be deducted what the suit had cost him over and above the 
 costs received upon the nonsuit ; but the defendant was to pay the costs 
 of this suit. 
 
 Xo. VI. 
 
 y[Y^ Vernon v. Yalden. 
 
 Feb.i4Jl722-3. 
 
 Melmotli MSS., Vol. III. p. 238. 
 
 Declaration of Obligee in a bond gives a declaration of trust declaiming that his name 
 
 trust of bond was used in trust for A., and afterwards he assigns this bond for a 
 
 subsequent valuable consideration to B., who has no notice of the deed of trust. 
 
 assignment for Obligee dies and B. gets administration. The plaintiff, who was 
 
 va uc. ^j^g obligor, brings a bill of interpleader 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 another for a valuable consideration, who has no notice of the first 
 
 a.ssignment, and the second assignee gets in the legal estate from the 
 
 trustee, he shall hold against the first assignee. 
 
 The Master of the Rolls (b) 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 of 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 
 a.ssignment nothing pa.ssed by that, for he had no equitable interest 
 then remaining in him, having before executed a deed of trust, and 
 therefore differs from the case mentioned, where a cestui que tiust, who 
 had an equitable interest in him, makes a first and second assignment 
 of that interest. 
 
 (o) 1 Vcrn. 53. (i) Sir J. .Jckyll.
 
 CASES FROM COXK AND Mi;i.M..T|| M>v. 575 
 
 No vir. 
 
 Barnardlsfoi} v. SinipHon. M.U. 
 
 I>ec. 3, 1720. 
 
 ]\I('liii(.tli, ^'.ll. IV. ]». 2.'',r,. 
 
 The (lefendmt .Simpson havin-r uso.l his wilo witli pvat mii'ltv aii.l A wif.-hnvi..- 
 
 turne.l hor out of doors, sho hhcllod :ij,'ainst him in (ho Spiritiml ('oiirt ''''"•"'■'' 
 
 for a .liyorce for cruelty and a.hiltory ; upon which h,-, hein- s.M^sihh. Srnj'for 
 
 of his fault, employs a friend to niediato a reconciliation, and several " f'-parnJiou 
 
 meetinofs were liad for that puriiose botwoon him an<l sonio frion<U of I^^J"^' ,„. 
 
 the wife, who insisted that a settlement shoidd In- made upon her, mak'Ta'JiiI.-. 
 
 which he agreed to, and accordingly transferred I' 1200 South Sen """"' ^"'' '" "■ 
 
 Annuities to trustees upon trust to permit llus wife to receive the hi'S^ijcrtJ 
 
 dividends during her life for her separate use; wiiich tiiist was doclaroil ''"" "/''<•*'' 
 
 by a deed in writing. '^ ■'!*'' *\ 
 
 •^ *= colubit with 
 
 Upon these terms the wife surceases her suit in tlie >piiiiual Court, Jiim .njain, nnj 
 
 and agrees to cohabit again with her husband, whieli sho accordingly ^l^'ri''"""^ '"'■ 
 
 does, and during such cohabitation the defendant borrows money of the 'I'liiii it n p-«l 
 
 plaintiil" and confesses a judgment for securing it, and tiio wife ha«I '^"'p'*'"'*''''''. 
 
 solicited the plaintiff to lend her husband the money, and to induce the ment not 
 
 plaintiff so to do told him her husband had an estate in .Jamaica, but '^^■' 
 
 took no notice of the settlement of the annuities. J,, 
 
 After this the defendant falls out again with his wife, uses lier ill, '"' 
 and turns her out of doors a second time, upon which she lirings a new ,„',,'. j ^ ^. ■ 
 suit for a separation and obtains a sentence accordinglv. doraiidn bo. 
 
 The plaintiff's bill was to charge the annuities with his judgment and *"', ' 
 to have a satisfaction thereout of his debt. tl. . 
 
 The consideration mentioned in the deed of trust was only tliat of a |.''° V?"4. 
 marriage had and of love and affection of the defendant towards his oiIkt pow! 
 wife, and though it was not mentioned to be for divers other good ^■'*"^'* " **^™ 
 causes, &c., yet the defendant, the wife, was allowed to read proofs to 
 show the annuities were transferred upon another consideration besides 
 what was mentioned in the deed ; which being fully proved, tlie Miuster 
 of the Rolls (c) (though it was insisted for the plaintiil' that if the wife 
 had proceeded in her suit she could only have oljtained a sentence for 
 separation and alimony, which alimony would have ceased upon the 
 cohabiting together again, and the settlement came only in the ixK>m of 
 alimony) was clear of ojiinion that the settlement was made upon a goo«l 
 consideration, and not fraudulent as against the plaintifl", and therefoix? 
 dismissed the bill with costs. 
 
 (c) .Sir J. Jckyll.
 
 57G CASES FROM COXE AND MELMOTH MSS. 
 
 No. VIII. 
 
 Easter term, Stavfii'kl V. MiUcr. 
 
 12 Geo. I. 
 
 182G. Coxc MSS., M. 33G. 
 
 Gift of bonds The bill in tliis case was by the plamtift', as administrator to his 
 
 ami notes by brother, to have a discovery and account of several bonds and notes 
 dehveiy only, . ' . •' 
 
 not good which belonged to the intestate. 
 
 ^j''"™ °"?j'^ 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 being 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 plaintifl', for that the same being choses in action and not 
 assignable in law, notliing vested in the defendant by such gift to take 
 away that right which is in the plaintiff as administrator and repre- 
 sentative of his brother, and this though there was no creditor in the 
 case, for there was no consideration for the gift to suppox't an equitable 
 interest. 
 
 representative. 
 
 No. IX. 
 
 jjjj Cra.clicrodc v. Hcdlam. 
 
 Dec. 12, 1730. 
 
 Melmotli MSS., Vol. V. p. 112. 
 
 A. on Ills mar- One Meadows upon his marriage settled lands to the use of himself 
 ria^e settled fQ^, jjfp^ i\\Q\\ to his wife for life, remainder to the heirs of her body by 
 self for life him begotten, remainder to him in fee. 
 
 remainder to Some time after the marriage Meadows and his wife having several 
 special'^ re- children, they agreed to make a new settlement, and accoi-dingly a fine 
 mainder to was levied, and hy deed they declaimed the uses to Meadows for life, 
 liimselt in Jee. ^j^^^^ ^^ j^j^ ^.jj-^ £^^j, jj^^^ remainder to trustees and their heirs upon 
 
 tUe^elit'on t™*^* to sell, and to divide the money arising by the sale equally 
 A. for life, re- amongst all the children. 
 
 mainder to the Afterwards Meadows mortgages to the iilaintiir, who had notice of 
 wife lor lite, o o i ' 
 
 remainder to the second settlement, and after the death of Meadows and his wife the 
 irustees fosell trustees sell the estate to defendant, who had no notice of the plaintiff's 
 
 and divide 
 
 amongst the mortgage. 
 
 cliildrcii. The plaintiff's bill was that the defendant might redeem his mortgage 
 
 Held not to be ■, p -, i 
 
 a voluntary "^ be foreclosed. 
 
 settlement The question was if the second settlement was voluntary or not, 
 
 .ipinst a pur- ]jqJj^„ made after marriage : for if it was voluntary it was fraudulent 
 
 chaser from A. " . . . . 
 
 and void as against the plaintiff, though he had notice, he being a pur- 
 chaser for a valuable consideration.
 
 CASES FROM COXE AND MELMOTII MSS. 577 
 
 The Mnstor of ilio llolls (,/) was r-l.-arly of opinion that tho pocond 
 settlemont was not vohmlary ; Imt njado upon a <.'oo<l onnKidomtion. 
 
 The wife was tenant in (ail l.ydio lirsl sctth-ujonl, nn.l that oxtnto 
 tail could not be hanvd without li.r consent nn<l hy lior joining' with 
 her husl)and ; and sho contracts with him to l»>vy a line, and l»ar her 
 estate tail in consideration of his ar,M-ocin«r. instead of letting' tlic onUito 
 go to the eldest son, that after their death it should ^'O ainonjtKt nil tho 
 children equally ; and her partui-,' with her estate tail was a <,'0(>d con- 
 sideration for making the second settlement. And lie said that thou^li 
 he did not know that this case had ever l)een detei-mined ; y<'t then* 
 were several cases parallel to it : and particularly mentioned the cnwK 
 where a woman after marriage agrees to levy a fine to bar her dower, 
 and in consideration thereof her husliand makes a settlement upon licr : 
 this will not be voluntary. And he said there was no doul)t hut a man 
 and his wife might contract together, and she may contnict and 1h» 
 I)ound by the medium of a line. And he thought this a very cle;n- (•.■i<.-, 
 and dismissed the plaintili''s liill. 
 
 No. X. 
 HiqcUii V. Watkinson. (e) l- '-'■ 
 
 ^ ^ ^ Nov. 4, 1732. 
 
 Melmotli MSS., Vol. V. p. 300, and see ih. 19G, 22G. 
 
 A sum of money is devised to a woman for life, and after her death to ^ I 
 
 such of her children as should be living at her death. The defendant, ^'j^ ^ ^^^ ■ 
 who was one of the children, becomes a bankrupt in the lifetime of Ids action. 
 mother, and the commissioners assign his contingent interest in tliis 
 money to the jDlaintifTs. 
 
 The bankrupt obtains his certificate and then the mother dies. Tho 
 question was whether this contingent interest was .assignable, an<l 
 whether the bankrupt's share of the money belonged to him or to 
 the creditoi's. 
 
 The Master of the Rolls decreed it to the plaintills, the a.ssignees. and 
 the bankrupt appealed from this decree. 
 
 And now^ it w^as insisted for the assignees that this contingent interest 
 was assignable by the Statute of h>lizabeth which says that the com- 
 missioners may assign all things that the bankrupt may lawfully depart 
 with. Every right, interest, or possibility which a bankrupt may law- 
 fully depart with is vested in the assignees, (tioodwin , " Of Bankrupts," 
 83-4.) Conditions of re-entry have been held to vest in tlie assignees. 
 
 It is no objection to say the defendant during the life (.f his mother 
 had only a mere possibility, for a possibility may be devised (Poll. -I -J). 
 and though it is not assignable at law, yet it may be a.«signed in ecputy, 
 
 ((0 Sir J. Jek}ll. (e) S. C. sub uoiu. Ili'jilm v. ]MUiamson, 3 V. Wnis. 13-.'. 
 
 1' i-
 
 578 CASES FROM COXE AND MELMOTH MSS. 
 
 and so it was determined by Lord Cowper in the case of TlhJiahl v. 
 Diifail {f)i whicli was a devise of a term to one for life remainder to A. 
 and B. during the remainder of the term. A. marries, and slie 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, yet the tissignment was decreed good against the wife, and 
 the decree was afterwards affiraicd 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 liis mother ; and thei-efore, 
 tliough he had but a possil)ility, yet it was such an interest as he might 
 lawfully depart with, and consetjuently is within the words and meaning 
 of the Statute of Queen Ehzabeth. and therefore it was prayed that the 
 decree might be affirmed. 
 
 For the defendant it was said tliai in the case of a devise of a 
 remainder of a term after an estate for life, although it is but a possi- 
 bility (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. E(j[uity considers 
 this as a vested interest. But in our case the portion is uncertain. 
 The bankrupt at the time of the commissioners' assignment might not 
 have been the person that was to take. He might not 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 a thing so con- 
 tingent that it was Avholly uncertain when the person would ever be 
 entitled, could be assigned, even in equity. 
 
 Lord Chancellor (</), after a few days' consideration, afhrmed the 
 decree. He said the certificate did not entitle him to any interest 
 which he had l:)efore. This was an interest although it was contingent; 
 and he laid a great stress upon the words in the Statute, lavfaUy 
 dtpart icith. 
 
 {/) Theobalds v. Dvffoi/, 9 Mod. 1U2. {g) Lord King.
 
 CASES FROM COXE AM> .MLI.MmTH msS. [,70 
 
 No. Xl. 
 
 Wilhcrdi ii V. Jiii,i/)rr. yi jj 
 
 ,, , . May's, 1733. 
 
 Melmotli :\iss., ^^,l. \'. ],. _>:.J. 
 
 Defendant after liis in.'iniago oovonanto.l tliat jCl.'.Od South Soa IncMn,.l..|«. 
 Annuities sliould ])e sold and laid out in lands, to bo settled iii)on lii 
 wife and yo\in,i?oi- childron ; afterwards he oontraots dchts. and assi;;ii> . J. 
 
 over the annuities for satisfaction of debts in a schedule. tore or after. 
 
 Plaintifts being some of the scheduled creditors, In-inj,' their bill to 
 have the annuities sold and the debts paid ; and it was so decreed ; 
 the Master of the llolls (h) without any dilliculty declaring the settle- 
 ment, being after marriage, was fraudulent against the creditors, and 
 that it was not material whether the debts were contracted before or 
 after the settlement. 
 
 No. XTI. 
 
 Anon. 
 
 Coxe MSS., N. 108. 
 
 A feine sole before her marriage deposited her money in her Imperfect gift 
 
 brother's hands, and by articles between them in writing declared "•'"''"«.>■ no* 
 
 ' '' . . " 8iil>j)orteJ. 
 
 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 jier 
 
 issue, and for want of such issue to her brother. After this th(> 
 
 ^eme married, and with her husband brought a bill to have the 
 
 money paid to the husband and, the articles bei/uj rolantur>i, decreed 
 
 accordingly. 
 
 No. XTir. 
 Roch V. Dade. ^^1^.,^ 
 
 Melmoth MSS,, Vol. I. p. 108, I^^l Cowpcr. 
 
 A woman, being seised in fee of lands, man-ies a second husband, A vohmjarj- 
 and before her marriage conveys this estate to him and his heii-s, and frauJulcnt 
 he covenants to charge it with £1000 for the children of the wif ' ^l credi- 
 
 her first husband ; accordingly, after the marriage he settles this ( . ;,...Lailing. 
 
 and charges it with £1000, pursuant to his marriage agreement, and 
 
 (A) Sir J. Jc-kyll. 
 
 r r 2
 
 580 CASES FKO>r coxe axd melmoth mss. 
 
 then entails it upon his own children ; after this he borrows monej- 
 upon bond and dies, and the question was, if this settlement was fraudu- 
 lent against a bond creditor. 
 
 Sir Simon Ilarcourt for the defendant :— In this case the husband 
 was not indebted 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 circumstances 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 inquired 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 there- 
 fore 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 mortgage, 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 voluntary 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 settle- 
 ment against creditor, and to say that an inquiry shall 1)e made what 
 the circumstances of the man were at the time of the settlement is a 
 gi-eat fineness, and cannot be supported on soUd reason ; for may not a 
 man make a settlement to secure his estate against future creditors as 
 well as present 1 
 If tlie personal But now in the case before us there are two powers of revocation 
 e>tateis swal- j^j |^ makes it still the stronger. 1. A power for the man and his 
 lowed up in ° t , i . i i • /i- l j.i 
 
 j.aying amort- wife jointly during the coverture to revoke, so that he has m eitect tlie 
 
 gage, the other power in himself, for the wife is sub jjotestate viri. 2. There is a power 
 come- iiito"th[s for him to revoke if he survives his wife, paying £1000 to his wife's 
 Court and Le children. But I give no opinion. 
 
 stTmnn\°be Serjeant Hooper for the plaintiffs :— We may have a decree to inquire 
 
 room of the into the personal estate, and if it appears the £1000 has been paid out 
 mortgagee, ^ ^j^,^^ ^^^ ^ , stand in the room of the mortgagee, and have a satis- 
 anu have a > j i i c i i 
 
 satisfaction faction out of the real estate ; which was agreed, but afterwanls they 
 out of the real thought it more proper to pay the costs of the day and pay no decree, 
 and so bring the heir before the Court. 
 
 (/) Lord Cowper.
 
 INDEX. 
 
 ACCEPTANCE 
 
 of trusts by trustees, lol-l-jo : sec Trust ; Tuustke. 
 
 ACQUIESCENCE— (.sec Delay ; Laciiks) 
 creditors barred b}', when, 181-185 
 in acts of bankruptcy, 181 
 
 gift or vohintary settlement contirnied by, oOll, 007, 508 
 onus on whom to prove, 507 
 delay evidence of, 507, 508 
 
 ACT OF BANKRUPTCY, 
 
 assignment of whole property, 12, -ioG 
 
 fraudulent conveyance of 2)ro2')erty or any part thereof, 11. 12 ». 
 
 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, 91, 95, 43(j 
 assignment of whole property to secure past debt, 91, 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 BRING, UNDER 13 ELIZ. V. 5, 
 
 any person who ranks as creditor, 518 : sec CREniTOU. 
 
 subsequent creditor when any prior creditor .still unpaid, 518, 519, 520: 
 see SuJiSEQuEXT Ckeditor. 
 whether if all prior creditors paid, 520 
 not creditor, when, 520 
 
 even if no del it due and unpaid, when, 52", 521 
 not if settlement for value and then no di*bt, 521 
 not if action adverse to prior creditors, 521 
 
 creditor, although debtor not insolvent or bankrupt, 522 
 
 not creditor, if a debtor on balance of 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
 
 582 INDEX. 
 
 ACTlOy^— (continued) 
 
 OS i5i;half of self and aix other creditors under 13 ELIZ. c. 5, 
 
 when settlor alive and not bankrupt, 52o 
 
 when settlor dead, for administration of estate, 526 
 UXUER 27 ELIZ. c. t, 
 
 for specific performance, when enforced, 511-513: sec Specific Perfor- 
 
 MAXCE. 
 
 whether by creditors of settlor, 512, 513 
 parties to, 51 i 
 
 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, iSl : see Eectification. 
 
 when. 181, -182 _ 
 
 in Chancery Division, 482 
 
 not a short cause, 482 
 set aside by, for undue infiuencc, when, 483 et seq. : seo Undue In- 
 fluence. 
 
 WILL, 
 
 to set aside, for undue influence, 108 
 
 in Probate Division at time of probate, 498 
 
 ACTUAL FRAUD— (see Fraud) 
 
 must be proved to avoid conveyance for value, 93 ct seq. 
 
 avoids purchase in name of third person under 27 Eliz. c. 4 : 202 
 
 ADMINISTEATIOX, 
 
 action for, assigned to Chancery Division, 532 
 
 after judgment for, executor cannot ])refer creditor, 110 
 
 costs of action for, in discretion of Court, 514 
 
 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 
 costs of, 544 
 
 voluntary conveyance by, void against creditors, when, 166 
 See Executor. 
 
 ADMISSIONS OF ]\IONEY 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. c. 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 , 54 0, 541
 
 INDEX. 583 
 
 AFTER-ACQUIRED PROrERTY, 
 
 when validly assi-ned under Bills of Sales Acts. 185-t, 1878: 160, 
 
 bill of sale as to, how far void under Act 1KH2 : IGl IGJ 
 contract by married woman binds, when, i^b'J ' 
 
 AGENT— (see Pkincii-al; UxNdue I.NrLLLNCK) 
 
 gift to, 48-1- ' 
 
 lease to, third person taking, 50 1 
 
 costs of, 552 
 
 liability of princiiial penally for, when, 5 1 1 
 
 AGREEMENT, 
 
 judgment confessed by, not purchase of land, 11' 
 
 mining, a purchase, ii-JO 
 
 ante-nuptial, written, followed by post-nuptial settlement. 368 369 
 
 written, must be what, :569 
 
 parol ante-nuptial, before Statute of Frauds, 370, 371 : ace Parol Agkee. 
 
 31EXT. 
 
 since Statute of Frauds, 371 
 and part performance, 371-371' 
 and post-nuptial settlement, 375-382 
 when proved by post-nuptial deed, 383 
 
 voluntary, 389 et seq. : see VoLUKXAia" Agueemext. 
 
 enforced only if for value, 389, 39U 
 
 for^ value between A. and B. for benefit of €., when enforceable by C, 
 891, 392 
 
 for separation, when enforced, 301 et secj. : sec Separatiox Deed. 
 ends when, 313 
 
 for future separation void, 312, 469 
 
 imperfect assignment operating as a, formerly, 117, 1-18 
 
 to be judged of at time made, 312 
 
 to reduce promise to writing prevented by fraud of one jKirty, 388 
 
 to sell land not enforced for voluntary vendor, 511, 512: sec SrECinc 
 Performance. 
 
 whether always enforced in toto, 534 
 
 ALIMONY— (sec Separation Deed) 
 covenant against claim for, 301- 
 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 traders, 53 
 
 law as to indebtedness, 50 
 
 test of voluntary settlement, 50, 53, 54 
 
 subsequent insolvency, if unforeseen, will not avoid deed, 53 
 
 valuation of settlor's assets and liabilities at time of settlement, 60 
 
 voluntary conveyance void against creditors good otherwise, »!!' 
 
 in favour of wife or children not therefore void 
 against sub-equcut creditors, 77 
 conveyance for value to defeat execution good, !''J 
 jwwer of revocation a strong mark of fraud, 111 
 on doctrine of Eclwanh v. Horhcii, 120 
 on possession of personal chattels and real property, 113, IIC
 
 584 INDEX. 
 
 AMERICAN 'Lx\.^Y— {continued) 
 UNDER Vo ELiz. c. o — [coutimied) 
 whoever is owner of debt cau enforce it, 168 
 parol ante-nuptial agreement will not set up ])Ost-nuptial settlement 
 
 against creditors, oSo 
 purchase in name of wife, child, third person, 21 
 voluntary settlement of property if removed from creditors void against, 
 
 OO il. 
 
 motive of settlor alone material, -1:5 n. 
 marriage settlement only avoided if husband and wife commit fraud, 91 )i. 
 power of revocation mark of fraud in settlement, 111 a. 
 possession of real estate after sale not a presumption of fraud, when, 11(3 n. 
 creditors and others, who are, 163 
 corporation whether a creditor, 525 n. 
 subsequent creditor can impeach settlement, when, 520 n., 521 n. 
 
 UNDER 27 ELIZ. C. l, 
 
 declaratory of common law, o 
 
 judgment creditor not a purchasei*, 229 
 
 purchaser from other than voluntary settlor not a purchaser, 2 11 
 
 from either fraudulent grantor or grantee, when protected, 1326 
 rights of first purchaser, whether from grantor or grantee, prevail, 
 
 ■S-lS,-o29 
 as between volunteers pi'iority of date confers title, o2'J 
 parol ante-nuptial agreement will not set up post-nuj^tial settlement 
 
 against purchasers, oHo 
 contract may be enforced by a person sti'anger both to it and considera- 
 tion, when, oO'l 
 voluntary covenants enforced against settlor's estate, 101 
 
 agreement not enforced in, oOO n. 
 j^ermanent improvements allowed for when relief given against ]iersou 
 
 in possession, 511 
 voluntary conveyance uphelcl against purchaser with notice, 5, 106 
 
 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, 211, 215, 217, 
 21^8 : see Consideration. 
 
 ANCESTOR'S DEBTS, 
 
 gift by heir void against, 165, 333 
 
 devisee void against, 166, 333 
 
 ANNUITANT 
 
 by general chai'ge not a purchaser, 235 
 
 ANNUITY 
 
 contingent within 13 Eliz. c. 5: 22 
 
 to wife a considei*ation 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, 530, 510 
 
 ANTE-NUPTIAL SETTLEMENT : sec Maiuuaoe Settlement.
 
 iM»i:x. 585 
 
 APPAEEXT POSSESSION-(«co Possession- ) 
 utuloi- Rills of Sale Act, 18.") 1 : l:!t; 
 what utulcr Bills of Siilu Act, 1H7S: l:i(.i, M?, l.jtj 
 when it exists, l.")l 
 when it is excludcil. \.)J. 
 not under Bills of Sale Act, l>3«:2 : loj. 
 
 APPU IXTM E ST— (see Pow kk) 
 
 general, by deed, within 1:'. Kli/,. <•. ,"• : 31, :;;j 
 
 particular power of, not within I:; Kliz. c. o : I'.l, :'.;; 
 
 general, by deed by married woman, not within 1:'. Kliz. c. :> : ;{1 
 
 deed with ]30wer of, lo,st, power of revocation not inforreJ, when. .V)l, .VrJ 
 
 exercise of power of, by debtor, when restrained by creditor, oM 
 
 ASSETS, 
 
 settlor's, nature of, 59 
 
 value of implements of trade how far, GU 
 
 test of, same as under Bankruptcy Acts, o9, GU 
 
 debt due when not, (iU 
 
 valuation of trader's, how made by Court, OU 
 
 must be available at time of settlement, 11, V.\ oi, 59 
 
 goodwill not, 5!*, GU 
 
 plant of business not, GO 
 
 for creditors, property fraudulently alienated is, after death of huttlor, GO 
 
 marshalliug, for volunteers, liU'.', 5:j5 
 
 not against volunteers, 'JU'J n., 5;>5 
 not as, between two volunteers, 535 
 bill for satisfaction of, against voluntary debt of testator, -W 
 ])romise not enforced against, of promisor, '.j'J'J 
 
 ASSIGNEES — (see BANKiiuricv ; Trustek) 
 
 by general words, whether purchasers, i2:>l, "233 
 
 voluntary, of debt now creditors, 1G8 
 
 of lease, purchaser under 27 Eliz. c. 4: 221 
 
 of bankrupt are creditors, 170, 171 
 
 may sue under 13 Eliz. c. 5: 17", 171 
 
 not purchasers under 27 Eliz. c. l : 233, 231 
 
 whether they can defeat a settlement by a sale, 2^13 >i. 
 
 appointed after suit under 13 Eliz. c. 5, comtnenccJ, 522-52-4 
 
 bill of sale void against, 13G : nee Bills uv Sale. 
 
 ASSIGNMENT — (see Act or Baxkrlttcv ; Creditors' Deeds ; Gikt, Whes 
 Complete ; Gexekalixv) 
 of whole property not therefore void under 13 Eliz. c. 5: 11, 12, S)G, 97 
 under 13 Eliz. c. 5. not if bona fide, !»7 
 is an act of bankruptcy, when, 11, 12, !»i, 05, 96 
 to trustees to pay creditors, when within l;> Eliz. c. 5 : 87, 88, 89, 98 
 to defeat particular creditor upheld, ^*^■>, lUG 
 of after-acquired property under Bills of Sale Acts, 160, IGI : ecc Aktek- 
 
 ACQUIKED. 
 
 for illegal purpose not carried out, assignor may recover property subject 
 
 to, 471, 472 
 to trustees to pay debts, 433 et seq. : ecc Creditors' Deeds. 
 by general words not a sale, 231, 233 
 voluntary, what is a complete, 151 et seq. 
 void at law only an agreement in equity, 417, 448 
 of equitable chose in action, 411, 447 et seq. : sen CiiasES IN Actios. 
 of debts and other legal choses in action, 41 1, 412, 417, ioi ot seq. 
 of choses in action under statutes, 41i.>, 411 
 
 ATTEMPTS TO TRANSFER LEGAL ESTATE: sec Girr; Gm, When 
 
 CoMrLETE.
 
 586 INDEX. 
 
 ATTESTATION 
 
 of bills of sale under Act 1878 : l')6, 155 
 1882 : 138, 156 
 by solicitor, 155, 15G 
 by witness, what, 156 et seq. 
 
 ATTOEXET— (.see Solicitor) 
 
 power of, exercised after death of donor, -1-12 
 i;ift of, whether a declaration of trust, 418, iiO 
 power of, not now necessar}'-, when, ■1'56, 157 
 
 ATTORNMENT— (.see Bills of Sale) 
 
 whether, clause in bill of sale now avoids it, 1 10, 1-11 
 
 AUSTEALIA, 
 
 statutes of Elizabeth apply in, o 
 
 BADGE OF FRAUD 
 
 in cases of undue influence, 406, 407 
 power of revocation in voluntary settlement, when, 400 
 absence of power of revocation in voluntary settlement, when, 400 et seq. 
 in coxveyaxck roil v.vluk, 
 generality of gift, 04, 07, 98 
 continuance in possession, 98 : see Possession. 
 secrecy, 09 
 conveyance pendente lite, 99 
 
 by debtor to defeat execution not a, li.»7 
 
 by executor, 107, 108 
 
 by debtor to prefer a creditor not n, K»7 
 settlor taking some benefit, not necessarily a, llO, 111 
 power of revocation, 111 
 
 if for a particular purpose may not be, 112 
 fraudulent marriage, 89 et seq., ;5o2 
 vendor and purchaser must have notice of fraud, 78, 79 
 sale to relation not, 8I-80 
 settlement of purchase-money, 86, 87, 5;J5 
 
 IN VOLUNTARY f ONVKVANCES AGAINST EXISTING CREDITORS, 
 
 amount settled, 55 
 
 all circumstances of settlor at the time, 00, 50, 54 
 
 gift to relative, 56, 57 
 
 indebtedness, 00 et seq. 
 
 insolvency, ■■>9, 41, 42 
 
 nature of debts and assets, 57, 59 
 
 small debt unpaid, :)9, 49 
 
 settlor engaging in trade soon after. 51 et seq. 
 
 IN VOLUNTARY CONVEYANCE AGAINST SUBSEQUENT CREDITORS, 
 
 generality of gift, i)6 
 
 continuance in possession of settlor. Avhen, 67, 70 : see Possession. 
 
 conveyance just before action brought, 71 
 
 by man about to become indebted, 65, 7U, 75 
 after service of debtor's summons, O'J 
 pendente lite, 70, 7:5, 7t 
 just before decision, 70, 71 
 to defeat forfeiture, 71, 72 
 execution, 72, 99 
 sequestration, 72, 7o 
 debt soon due, 7-'> 
 contingent liability, 7u, 74, 75 
 with power of revocation, 76 
 benefit to settlor, whether, 76 
 no reason for settlement, whether, 75
 
 INDEX. 587 
 
 BANK NOTES 
 
 within l:> Eli/, c. o: 2:1 : .sec Cheque. 
 
 BANKRUPT. 
 
 action under 1:J Eliz. c. •"), tlioiigh settlor not, 522 
 settlor, jurisdiction of Hij^h Court as to, ry22--.VJ-|. 
 assii^'uee.^ or trustees of, '>-21 : srr. Assioskes; TlifsTKE. 
 settlor, trnstoo of, a creditor, 170, 171 
 not a purchaser, 2[V\ 
 action against, by trustee, .V22 
 not proper party to action, when, 'dl 
 title of trustee of, higher than of settlor, ".j:^. 
 
 BANKRUPTCY— (.9CC Act of Bankrlttcy) 
 1;] Eliz. c. "), works concuri-cutly with, lo 
 differences between lo Eli/, c. o, and, 1", I I. 12 
 ecjual distribution of assets the priucij)lc of, 1 1 
 vohmtary settlements when avoided by, 12, 12, lO'.i 
 retrospective, when, 4o 
 
 assignees and trustees in, are creditors, 17i-i, 171 : sec Assig.nees; Tki'stf-K. 
 of settlor during action, •J2 I- 
 
 when proceedings by trustee to avoid settlement should be iu Court of, 
 
 :.22-.V20 
 should be iu County 
 Court, o2:i. r.2i 
 when action by trustee to avoid settlement should be iu Cliunccry 
 
 Division, 522-521' 
 jurisdiction of High Court in, nature of, 'i2:) 
 bill of sale void against trustee or assignee iu, lo<j ct seq. : sec Bills Of 
 
 Sale, 
 reputed ownership iu, applies whcu, 127 et seq., 1:55: ace Rkputeo 
 OwxERsnir. 
 
 BARGAIN — (see Ldiitations i.\ Maiiuiage Settlement/ 
 
 between husband and wife consideration for post-nuptial settlement, 
 
 287-292, 294, 295, 296, :!G7 
 between husbaud and wife, whether now consideration for post-uuptial 
 
 settlement, 295, 867 
 marriage contract question of, o52, ;)55-n5S 
 presumption of, when and when not made, 358 ct seq. 
 
 BENEFIT 
 
 retained by voluntary settlor not necessarily avoids deed under 13 Eliz. 
 
 c. 5 : 11, 76, 96, 97 
 secret, fraudulent, 118 u. 
 none intended to grantee, when, -133, 103 
 
 BILL : see AcTiox. 
 
 BILL OF EXCHANGE, 
 
 gift of, 110 
 
 transfer of, by lav/ merchant, 110 
 by statute, 41 U 
 
 BILLS OF SALE, 
 
 object of, Acts only to protect creditors, 136 
 Acts apply only to personal chattels, 13G 
 may be avoided, how, 137, 138 
 duly registered, may bo void against creditors, 137 
 three classes under Acts 1878 and 1882 :^^l:;8_^ 
 unregistered, void against whom, 136, 153, 46-^ 
 
 transaction when possession at once thereby transferred not witbm 
 Acts, 146
 
 588 INDEX. 
 
 BILLS OF SALE— {continued) 
 
 UNDER ACT 18o4, 
 
 requisites of, 136 
 
 successive, 154 
 
 assignments of crops, loU 
 
 description of grantor and witness, 156, 157 
 
 execution wholly avoided, unregistered, 153 
 
 UNDER ACT 1878, 
 
 requisites of, loO, 137 
 
 consideration for, need not be stated before Act 1878 : 141 
 
 whether valuable, 111 
 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, 141-, 145, 146 
 what is a, depends on Act 1878 : 146 
 athdavit, must be what, 156, 157 
 what is due execution of, 157 
 due attestation of, 157 
 
 sufficient or insufficient description of grantor, 157, 158, 150 
 
 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 chattel.';, 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, 
 1 ^'> 
 
 LOO 
 
 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, 151, 155 
 
 transfer of registered, when does and when does not need registration, 155 
 
 registration renewed, when, 155 
 
 attestation of execution of requisites, 155, 156 
 
 after-acquired property, assignment of, when valid and when void, 160, 
 161 
 
 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 valualjle, 111 
 
 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, 138, 139 
 
 void against ail persons if not in accordance with Act, 140, 465 
 
 if void, is so in toto, 1-i^J , 
 
 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
 
 Txnr-x. 589 
 
 BILLS OF SALE-(ro))/;,n(r(?) 
 
 UNDER ACT 1K8-J— (co»7(',tMn/) 
 
 apparent possession not, Lv2 
 
 repntod ownersliip a])plios, l.M! 
 
 execution creditor, 1:'.,S, MO, i:,3 
 
 registration, J .^ t 
 
 execution of reciuisites of, L^(J 
 
 alUJavit, what, required as to, ITit;, i:,7 
 
 after- acquired property-, law of, altm-il, Iiil 
 
 of after-acquired property void, wlien an.l a;,Miiist wmmm,, i.,j, p.j 
 
 vidid iis to existing i>roperty Hpcificiilly do- 
 scribed, \&2 
 by company, lG-2 
 debenture of company, when not, 1G2 
 
 BOND — (see Gift, Wuen Completk) 
 delivery of, 1L5 
 
 gift not complete by, when, 45 1-, 455 
 voluntary, proof of consideration for, 'JG7 
 creates legal debt, :i!i8 
 given to screen from taxes, 17^ ». 
 to bearer, gift of, wbeu, 107, •!■<»« 
 not to bearer, gift of, when, 410, 157 
 East India, gift of, when, 11 1 
 
 BOOK DEBTS, 
 
 assignment of, 115 
 
 assignment of fnture, by bill of sale, IGl 
 
 BREACHES OP TRUST— (see Trustee) 
 
 trustees cannot re-transfer to settlor without, when, 425, 420 
 by voluntary trustees, 460 
 costs of, 55o 
 
 BROTHER— (see Undue Influence) 
 gifts to, 495 
 
 BUILDING AGREEMENT 
 
 when not bill of sale, 148, 149 
 
 CANADA, UPPER, 
 
 statutes of Elizabeth in force in, '■) 
 
 property which can be taken in execution is within 1:5 Eliz. c. 5, in, 2.1 ». 
 English law as to settlements by traders applies in, 5:{ n., GtJ ii. 
 what is indebtedness applies in, 50 
 test of voluntary settlement applies in, 5ii 
 notice to purchaser iu conveyance for vaim- iq'j.Ji. n 
 in, 78 11. 
 law as to express intent to defraud against future creditors in, 30 ». 
 conveyance on meritorious consideration on same footing ns volun- 
 tary in, 5t) n. 
 marriage settlement only avoitled for fraud of parties in, 91 h. 
 payment of existing creditors by creating fresh will not uphold settle- 
 ment in, 520 n. 
 subsequent creditor cannot impeach settlement, when, in, 520 n. 
 judgment creditor not purchaser in, 22 !• n. 
 
 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
 
 590 - INDEX. . 
 
 CESTUIS QUE TRUST— (see Gift, Wiiex Complete; Tkust; TnrsTEB 
 Volunteers) 
 notice of trusts to, 443, 451, 453 
 
 gifts to, unnecessar)', 472 
 uuJue influence of trustee over, Avhen 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, 5-18 
 
 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, 52.7 
 
 CHARITABLE USES, 
 Statute of, 20G 
 
 CHARITY, 
 
 conveyance to public, whether void against purclia.=!er, 205, 206, 217 
 to private, Avhether void against purcliaser, 200 
 to, created 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: sco Leasehold, 
 
 other than real, not within 27 Eliz. c. 4 : 2, 204 : sec Persox.il Chattels. 
 
 personal, what are, under Bills of Sale Acts, 148-150 
 
 what are not. nnder Bills of Sale Acts, 149, 150 
 gift of, how made. 4u7, 408 : see Gift, 
 parol trusts of, 40 1, 444 
 donatio mortis causa of, 409, 410 
 
 CHEQUE 
 
 now within 13 Eliz. c. 5 : 22 
 
 gift of, 41 (J 
 
 now legally assignable, 410 
 
 trust not created by, when, 442 : see Gift, 
 
 donatio mortis causa of, when, 409, 410 : see Donatio Mortis Calsa. 
 
 CHILDREN 
 
 consideration between, and parent in family arrangements, 265 
 equity to settlement extends to, 29i», 300 
 within marriage consideration, 330, 337, :'>41, 34-2-:'46 
 of widow by former marriage, 343, 346. 31-7, 349-351 
 illegitimate, of widow, -.UX 347-349, 351 
 of widower by former marriage, 352, 353 
 illegitimate, of widower, 352, 353 
 of husband or wife by future marriage, 3 1..3, 353-356 
 limitations to, between two valid limitations, 354, 355 
 contract in favour of, in post-nuptial settlement, 392 
 in ante-nu])tial settlement, 392 
 defects in execution of powers sujiplied 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, 488, 489, 490
 
 iN'i»i;x. 
 
 5'Jl 
 
 CRlLp-RE^ -{continued) 
 
 gift or voluntary settlement by, on parent, when voiilttllo l.>, ■ 
 
 tiuan aft»?r coin. 
 
 when uphfl.l, -Wi»-401 
 .-, , on person in loco piirontiH, 4JM> 
 
 gitt to, or voluntary settlement on, by parent iipla-M. when, 191 
 
 CHOSES IX ACTION. 
 
 whether within ]'.'> Eliz. c. T. : 18 •J2, 2:1 
 
 t^ooiLs and chattels, un.lor Bankruptcy Aots, 17 
 not assignable at conuuon law, 110 
 what legally assignable by statutes, 111*, -111 4:,:! „. 
 debts and other legal, assignable by Judicature Act. Iftjn- 411 41.1 
 4ob, 4.j7 • »•-, 
 
 under Conveyancing Act, 1881 : 42 !■ 
 what are : see (Jolonkd Bank v. Wltimici/, :!"» Cii. D. _■■! 
 
 CIRCUMSTANCES, 
 
 all, of settlor at time of voluntary settlement to be regarded, 13, 15 35 
 50, ^>:\, 67 ' I • 
 
 conveyance for value. 82, 93 
 deed impeached lor undue influence, 480 
 
 what marks of undue iuHuence, -IW, 4!»7 
 
 fraud when inferred from all. 35, 38, 40, 41, 50 
 
 of settlor, how regarded, 54, 55, 75 
 
 inquiry as to, 50, 51 
 
 all looked at to shew consideration, 2G8, 2G9 
 
 of settlor when to be regarded under 27 Eliz. c. 1 : 1 1, 15, 187, 188 
 
 CIVIL LAW 
 
 protected creditors, 7 
 voluntary alienations under, 7, 45 )(. 
 non-voluntary alienations under, 8 
 jDurchaser must know of fraiid 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 a. 
 generality of gift, 06 n. 
 marriage contracts, 332 
 
 CLIENT — {see Solicitor ; Un'due Ixfluexce) 
 
 undue influence of solicitor over, -484, 480-488 
 
 confidential relation of solicitor to, 493 
 
 gift or voluntary settlement by, on solicitor, when voidable by, 4S8, 493 
 
 upheld ai^rainst, 49J 
 COHABITATION, 
 
 subsequent, avoids separation deed, when, 313, 31 1 
 
 deed in consideration of continuing, void, 312 n. 
 
 COLLATERAL 
 
 security taken by purchaser with notice of voluntary deed, 190 
 
 COLLATERALS 
 
 not within marriage consideration, 3,42 
 
 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, 3G2, 391, 392 
 
 bargain in favour of, when presumed, 358-360 
 
 when not presumed, 361, 362 
 limitations to, iu family settlements, Mo, 364
 
 592 INDEX. 
 
 COLLUSION 
 
 of husbaud and wife, 89, 90, 31-2 
 between landlord and tenant, 470 
 
 COLONIES, 
 
 13 Eliz. 0. 5, adopted in most of, 10 
 
 COMMON LAW, 
 
 13 Eliz. c. o, declaratory of, 3 
 
 27 Eliz. c. 4, goes bej-ond, 6, 7 
 
 doctrine of, general and vague, 3 
 
 simplicity of, 4 
 
 choses in action not assignable at, 410 
 
 what actions assigned to Divisions, 503 
 
 COMPANY, 
 
 residence of incorporated, 159 
 
 bill of sale by, l&l 
 
 debenture by, whether a bill of sale, 102 
 
 creditor under 13 Eliz. c, 5 : 525 
 
 liquidator of unregistered, whether creditor under 13 Eliz. c. 5 : 525 
 
 COMPLETE GIFT: see Gift, Wiiex Complete. 
 
 COMPEOMISE 
 
 of suits a good consideration, 30G, 308 
 of doubtful claim a good consideration, 272, 273, 27G 
 of indictment a good consideration, 310, 311 
 when valid, 263, 277, 310, 311 
 
 CONCUERENCE 
 
 of necessary party a valuable consideration, 2G2, 263 
 
 supports what, 203, 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 Uxdle Ixiluexce) 
 
 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 : ace PKOor, Burdex or, 
 
 when on donor, 485, 486 
 whether, must be severed for good or at time of gift only, 49.3, 503 
 trifling gift to person in, upheld, 495 
 question how intention to give produced, important, 4l'7 
 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, Ml 7, 325 : sec 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
 
 iM>i:x. 50n 
 
 CONSIDERATION 
 
 in bills of sale, M-l ot scq. : so- ]hus uv S,u.k 
 
 uccd imports, [OO 
 
 iictitious, 21^ n., 267 
 
 uoininal, 2I|., '2(U} 
 
 inadequate, ;;i., -J 1 1., 2 la, 217, 2iH 
 
 good, means valuable, 8|., 2I-5*'21<! 
 
 niquii-y into, needless if both parties l.avo fr.uiJul.-nt intent, 78. 80 
 
 mala hdes overrides any, K.'j, HO, 2 1:5 • , ^^ 
 
 meritorious, of no avail, 7(>, 77, 'hI, 21', 
 
 against future creditors, 7t;, 77 
 notice of deed on, l!t.\ l!»(; 
 contract on, not enforced. :!!•(! 
 money paid bjtter than past debt, l:!l, 2.V2 
 necessary in conveyance to defeat execution, 72, W, !t7. 17;) 
 
 forfeiture, 71, lO'.i, 17<i 
 must move from ]->ersou who seeks to enforce, :{!)(» 
 ex turpi causa, ■i()H 
 immoral, 168, 469 
 
 if none on deed, evidence ailmissible to prove, l!M, 21!» 266 
 none, evidence of fraud, 187, 188 ' " 
 
 grossly inadequate for second deed does not avoid first deed, 188, ISO 
 meritorious, not good against purchaser whether with or without notice 
 
 ]!*2, 19o, 196 
 conveyance on good, when void under 27 Eliz. c. 1 : 197-199 
 what, necessary under 27 Eliz. c. 1 : 21 S, 21 It 
 generally same under both statutes of I'llizabeth, 2H. 2-V.) 
 when different under the statutes of Elizabeth, 218, 2l-!t, 2"i9, 200 
 between parent and child, 265 
 
 CONSIDERATION BETWEEN HUSBAND AND WIFE, 
 
 giving up previous settlement, 28:> 
 
 release of dower formerly, 28:! 
 
 giving up interest in property in which both are interested, 283,281,285 
 
 wife's concurrence, when ]xirt of bargain, 285, 286, 29:1 
 
 for value, if a bargain, 2.S7 et seq. 
 
 when wife has whole property, 202, 29:^. 
 
 when husband's money laid out on wife's land, 29:1 
 
 when each takes same interests under as without settlement, no, 2;»J. 
 
 valuable if, on settlement of wife's property, husband givi-s up any 
 
 interest, 294, 295, 296 
 mere concurrence of husband, whether valuable, 291 
 effect of Married Women's Property Act, 1882, on, 295 
 none now in post-nuptial settlement of wife's property, 29"i 
 same principles apply as to, in Ireland, 2i'2 
 will support separation deed as for value, when, :i01 ct seq.: so: ."ScrAU.i- 
 
 TioN Deed. 
 in marriage settlement, 311, 312 et seq. 
 
 CONSIDERATION EX POST FACTO, 
 
 deed originally voluntary made good by, 8:1, 8K 19I-. 219. 221, 222, :U5. 
 
 316, 318 
 principle and reason of, 316, 317 
 relates back to voluntary deed, 317 
 of marriage supports voluntary deed against creditors, 318 
 
 against jiurcha.'^ers, :tl8-320, 32 » 
 whether sole inducement, :!1S 
 
 merely principal indncement, 318, :110. ^0 
 presumption of inducement noc*5S8.iry. 'M*K 321 
 of sale or mortgage or otherwise as against jiurdiasev--, :'J1, :'.22 
 wlicn grantee has altered position on faith of deed, :''22, :t2:*>
 
 594 INDEX. 
 
 CONSIDERATION EX POST FACTO— (conH.ined) 
 
 of money or otherwise raovius from grantee, whether, malces deed good 
 
 against creditors, '•'<'-■'>, '-VIA- 
 operates from its date as against creditor or purchaser, :'2o 
 failure of, will not make deed voluutar3% 'o2'.>, -V-W) 
 makes good voluntary agreement, :li*;> 
 
 CONSIDERATION OF MARRIAGE,^ 
 
 settlement on, when set aside, 89, :]'-')2, o'od 
 
 malces parties purchasers, •222, W-jI et seq. 
 
 ex post "facto, validates deed, when, as against creditors, 316, 318, 320 
 
 as against purchasers, 31G, 318, 320 
 
 valuable against all persons, 222, 332 
 
 supports deed unless marriage itself fraudulent, 89, 90, 91, 332, o33 
 even if husband embarrassed, 91, 332 
 
 applies to what marriage, -y-'t-l 
 
 peculiarity of, restitution not possible, ^'^o, 330, 337 
 
 each party bound independently of others, 330, 337 
 
 issue within, 3:50, 34-1, 3i2 
 
 remains even after death of husband and wife, 3-il, 342 
 
 extends to settlement on stranger. 312 
 
 value of. independent of money, 3-1-2 
 
 sup]iorts limitations only to liusband, wife, and issue, 342, 343, 344-34G 
 
 limitations to children or issue of former marriage of widow^supportexl 
 by, as an exception, or now if a bargain, 343, 340, :U7, 
 349-351, 352 
 to illegitimate children of widow supported by, as an excep- 
 tion, or now if a bargain, 3(4-3, 347-349, o->\ , 352 
 to children or issue of husband or wife by a future marriage 
 supported by, as an exception, or now if a bargain, 3)4'.!, 
 
 i-> ^ o o ^ i 
 OOo, oo-i 
 
 limitation supported as between two valid limitations, 354, 355,350,357 
 to children or issue by a former maiTiage of widower sup- 
 ported by, as au 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 tide, 243, 244 
 
 what is, 244, 248, 249. 40O 
 
 as between relations, 246, 247 _ 
 
 amount of, not strictly looked into, 2 17, 2 IS, 251 
 
 loan, when, 250, 251 
 
 pre-existing debt, 100, 252 
 
 conveyance as security for debt, 252 
 
 to secure fresh advance, when, 252 
 continuance of rent, 253> 
 
 compounding prosecutions, compromises of actions, when, 253 
 promises, when, 253, 254 
 indemnity, 251' 
 covenant, 254 
 giving up voluntary benefits, 254—256 
 
 pecuniary advantage, 280 
 arrears of voluntary annuity, 250 
 
 assignment of leaseholds for, always in England, under 27 Eliz. c. 4 ; 
 
 250-258, 259 
 not always in Ireland, 258, 259 
 whether under 27 Eliz. c. 1, when freeholds conveyed as well as lease- 
 holds, 259 
 assignment of leaseholds not, under 13 Eliz. c. 5 : 259, 200 
 in family arrangements, what, 260, 270 et seq., 270
 
 iNi.Kx. 595 
 
 CONSIDERATION, VALTTABLl-:-(, .„,//„,./'<?, 
 
 noiiniirronc(^ ol' ]iorson iiitorosloil. liow far, 202, 2Cn 204 
 
 in laiiiily roscUIomonts, wlion, 2(; I. Jii:., 2(1(1 "' " ' " 
 
 may 1)0 provinl if iint in aecil.nr nominal, ami not incon«i«U'nt, 2C0, 2f7, 
 
 judcfod at time of cx'oculion of deed, 2(1R. 2<i!i. 27* • 
 
 at time of deed cannot, l)y faihire ex ])ost facto." n-ndor doed voliintiry «flK 
 
 adoqnatc iov specific pcrf(irniauee nsuallv ado.iiiato under Httttnt«H'of 
 
 hhzabctli, 2(il, 272 
 coniproniise of doubtful rights, 272, 27:!, 27 1 
 exchange of interests, 27(J, 277 
 no question of, till grantee knows of deed, 2H" 
 
 CONSOLIDATION 
 
 of mortgages not under 27 Eli/,, c. 1 : 203 
 
 CONSTRUCTION 
 
 of statutes of Elizaljeth to be liberal, I, :,:\7 
 
 of voluntary deed same as if for value. Kll 
 
 of penal clauses of statutes of Elizabetli. .'.::7 et scq.: «v Tenalty. 
 
 CONSTRUCTIVE FRAUD— (sec Fraud) 
 under 1:5 Eliz. c. ^> : r>, V,, 14, 15, 35, 37. (17 
 under 27 Eliz. c. !■ : (1, 15, 187, 191, 10:5 
 
 CONTINGENT 
 
 interest within 13 Eliz. c. 5: 17, 21- 
 annuity within ]:! Eliz. c. 5: 22 
 
 CONTINUANCE 
 
 of rent a good consideration, 253 
 
 in possession, 113 et seq. : sec Possession, 
 
 CONTRACT — (see Agreejiekt; Husband and Wife; MAuniAGr '-'-•■•• 
 ment) 
 husband and wife might formerly, when, 281, 283 
 
 may under jMarried Women's Property Act, 1852 : 281, 
 
 284, 285, 303 
 could not. and cannot, when, 282, 2~3, 4S3 
 by wife binds her present and after-acquired separate proi>crty, 282, 
 303, 309 
 binding only if she then had separate projierty, 282, 305, 30l> 
 enforced by children, as purchasers under settlement, against father, 
 
 293, 294 
 founded on equity to settlement for value. 29G, 297 _ 
 by husband or wife not to sue for restitution of conjngal right.e, 308 
 miist be duly executed by wife, 308, 309 
 for future separation, wlicther in ante-nuptial or post-nujitial deed. void. 
 
 312 
 mai'riage a civil, 331 
 of marriage, nature of, 331, 332, 33G. 337 
 construction of. question of intention of parties, 357 ^ 
 voluntary, not enforced for volunteers, 3.sii, 3!>i>, 3!fl, 39/^ 
 for value between two jjcrsons for benefit of third, 3".M, 3!'2 _ 
 
 between two persons for benefit of third, ni America may W 
 enforced, when, 392 
 made good ex post facto, 393 
 an immoral consideration, void, 4G8, 409 
 void on ground of public policy, 469 
 ]jy whom set aside. 409 
 of infant, how far binding, -183. 
 of insane person, 483 
 
 Q */ -
 
 59(5 INDEX. 
 
 CONTRIBUTION 
 
 when cnforcoil against volunteer, 535, 53G 
 when not, 53(5 
 
 CONTROL ^ 
 
 of voluntary deed, parting with, immaterial, -luS, IrJ, ^^K 4< j 
 
 CONVENT, 
 
 gift to, by nun, 49i, 495 
 
 CONVEYANCE— (see Voluntary Coxvevance) 
 what, avoided, by 13 Eliz. c. 5 : 1 
 
 by 27 Eliz. c. 4: 1, 202 
 on crood 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 
 voluutar}', against existing creditors: see Creditor. 
 
 subsequent creditors : see Sursequent Creditor. 
 purchasers: see Notice ; Pueciiaseu. 
 
 CONVEYANCE FOR CREDITORS— (sec Cin:mTORs' 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 -, r 1 o- 
 
 not void because creditors may be delayed, excluded, or defeated, 8o 
 
 payee then insolvent and to knowledge of creditor, 85 
 made to defeat particular execution, 99, lUO 
 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, 391 
 gift of, how made, 412 : see Gift. 
 
 COPYRIGHT, 
 
 gift of, by assignment in writing, 112 
 
 CORPORATION, 
 
 whether creditor under 13 Eliz. c. 5: 524, 525 
 
 COSTS, 
 
 promise as to, a consideration, 253 
 
 under Judicature Act, 1875 ; 544 
 
 Tinder Rules of Supreme Court, 1883 : 51-|. 
 
 now in discretion of Court or judge, 544, 545 
 
 of executor, administrator, trustee, or mortgagee, 544 
 
 follow event, when, 54 !• 
 
 in County Courts under County Courts Act, 1867 : 545 
 
 Court exercises discretion as to, on fixed principles, 545
 
 iM)j;.\. 5«j7 
 
 COSTS— (rontinucd) 
 
 UNDER 1:5 KLIZ. C. 5, 
 
 of trustees, 545, 516, 51«, r,W 
 
 in ailininistriitiou action, 5 Id 
 trustees wlien (.nlerod to )>ay, 5 15 
 
 when deed upheld, paid <.ut ofHetflcd fund, .VJG 
 
 appeahn-r ])ersonally liable for, 51i; 
 doulit when debts contracted. 51(; 
 
 other creditors allowed benclit of decree on coiitributiutr to. 5J«J 
 paid out ot .settl(>d fund. 5tt), 517, 55(J 
 ]-iriority of plaintit!' as to, 517 
 given to plaintilV thou.^di unsuccessful, when, 5)7 
 creditortakint,' risk allowed full, 517 
 of cestuis (jue trust, 517, 518 
 of assignees in bankruptcy, 518 
 of trustee, 548 
 of settlor, 547, 548, 540 
 unproved charges of fraud, 510 
 of plaintilf creditor aufZ purchaser, 54!l 
 of third ])ersons, 540 
 
 UNDER -27 ELIZ. C. 4, 
 
 IN CASES OF SPECIFIC rERFORMANCE — 
 
 of trustee, 550 
 
 of cestuis que trust, 550 
 
 of settlor, 550 
 
 IN CASES OF FEAUD AND UNDUE INFLUENCE— 
 
 of donees, 551 
 
 of solicitor, 551, 552 
 
 of third person, 551 
 
 of donor, 551, 552 
 
 of plaintili" when not ordered to pay, 552 
 
 of trustees, when allowed, 552 
 
 upholding deed for absent parties, 552 
 
 a])pcaling personally liable to, 5IG 
 trustee has no claim to, 552 
 of breach of trust paid by trustee, 55o 
 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, 52:1, 52 !• 
 
 action under lo Eliz. c. 5, when to be tried in, 523, 524 
 
 costs of proceedings in, under Act I8t)7 : 545 
 
 COVENANT— (see Contract) 
 
 not to enforce bond within i;> Eliz. c. 5 : :)o 
 by trader in marriage settlement, when void, -H- 
 in voluntary settlement, when void under Bankruptcy Act, -P, -14 
 mutual, as to selling after-acquired property, !'2 
 deed void under 27 Eliz. c. 4, when breach of, 202. 4(>8 
 for quiet enjoyment enforced by mortgagee. 2oit, 308, 300 
 against voluntary settlor's estate, 209, 398, 399 
 when good consideration, 25 !• 
 by wife binds her separate proi)erty. when, 282 
 
 of indemnity against wife's debts by trustee or third person for value, 
 301, 302 
 by wife alone against lier debts, whether for value, 303, 3(»4 
 against her debts and alimony, whether for value, 
 304 
 by wife's trustees to support children, 305, 30li
 
 598 INDEX. 
 
 COYE'^AJ^^T— {continued) 
 
 conditional in separation deed, 305 
 
 by \s'ite alone now, iu 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, oU8, 3U9 
 reciprocal by husband and wife not to sue for restitution of conjugal 
 
 rights, whether now for value, olO 
 to live apart enforced, 314 
 
 in marriage settlement may be enforced, when, 330, 337 
 voluntary, not enforced, under seal or not, 389, 390 
 to surrender copyholds not enforced, 391 
 
 for value iu separation deed, when not enfoi'ceable by cliildren, 392 
 in 2:)ost-nuptial contract, when not enforceable by chiklren, 392 
 iu ante-nuptial settlement enforceable by children, 392 
 iu America may be enforced, when, 392 
 
 subjecting person to voluntary legal liability, when enforced, 398 
 voluntary, for further rssurance, 400, 536 
 whether with trustees or cestui que trust, immaterial, 400 
 voluntary, in America, when enforced, 4Ul 
 voluntary, conveyance of laud not in existence good as a, 4-01 
 to ])ay i^urchase-money to volunteers if property sold, 207, 208 
 to transfer and hold on trust meanwhile for volunteers, 425 
 
 See VoLUNTAiiY Aghkement. 
 
 COVERTURE— (see Marriage) 
 formerly excuse for delay, 509 
 now no ground for delay, 509 
 
 CREDITOR 
 
 protected by 13 KHz, 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 priorit}' 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, 316, 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, lOt 
 arrangements with, all on equal footing, when, lOl 
 bill of sale, when void against, 135 et seq. : nee Bills of Sale. 
 settlement void against one is assets for all settlor's, 515 
 consideration as against, 243 et seq. : sec Coxsi deration. 
 ex post facto considerations, whether good against, 315 : sec Considera- 
 tion Ex l'(jsT Facto. 
 subsequent, 61 et seq., 518 et seq. : see Subsequent Creditor. 
 judgment, 22 1 et seq. : see Judgment Creditor. 
 execution, rights of, 153: sre Execution. 
 general, different from specific incumbrancers, 163, 230, 232 
 plaintifi' suing as purchaser and, 161', 517 
 burden of proof of debt iu general on, 515, 516 
 
 when not on, 516 
 needs no judgment or order to bring action to avoid scitlemclit, 527 
 needs no lien or charging order on property, 527 
 Court declares settlement fraudulent and void against, 528
 
 iNDEX. 
 
 o'jy 
 
 CKEDlTOR-(ton/i»?<e(/) 
 
 takinj,' Lcncfit not estopjicd. .jol 
 deed partly rrood a<,rainst, 5;J-1., h:]r, 
 
 WHO JIANKS AS, INDKK lo KMZ. (;. 5, 
 
 who inclnded nuder "and othcr.s," It;;; 
 
 person with daiiu on rrencral assets. IC.:; 
 
 not niortgairee nnlcss lor sur, ,1ns of del.t or l,y giving up uocurity, IGJ, ICl 
 
 hnsband of a debtor to wiff, when. IC-I., IGO 
 
 wife, against Imsband's estate. ]()o, 1(J7 
 
 on debt i'onnded in nialelicio, li'..", 
 
 ancestor's, \6o, iCii 
 
 surety, 166 
 
 nnder voluntary instrument, li)7, 1(J8 
 
 voluntary assignee of debt, l(i.S 
 
 SIS against deed for value only creditor for value, lti7. !•;;• 
 
 Crown, by forfeiture, 16!1, 17<J 
 
 representatives of, 170, IGI' 
 
 assignee or trustee of insolvent or li.iuidatiug debtor or baukriii.t 170 
 
 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 acciuiescence, 181, 182, 185 
 
 by in any way upholding it, 181, 182 
 by notice, ISo, 181 
 
 by holding it out as valid to third parties, 1 ^ I 
 legal, only barred by Statutes of Limitation, -tt, 18 i 
 consideration as against, important if deed bona lidc. 2 1:'. 
 may set aside purchase by stranger for inade<]nacy. when, 2 17, 248 
 settlement of wife's property subject to cciuity to settlement good ngaiubt 
 
 husband's, 2'.'(i, ii!;t7, :',{.»> 
 subject to ecjuity to settlement void against 
 her ante-nuptial, oUO 
 separation deed, when good against, DUl et seq. : see SEPABATiOX Deed. 
 
 CREDITORS' DEEDS— (see AssiGJiMFAT; Conveyance; CnEDiToii) 
 
 when made valid by way acted on, 107, o29 
 
 not bills of sale, 1 1'.' 
 
 distinguished from voluntary settlements, 43i?, 4;i4, •!."(!, -IGl 
 
 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, 4:!5 
 
 irrevocable as to some creditors only, 435 
 
 act of bankruptcy, 436 
 
 analogous case of revocable trusts. 43'J, 437 
 
 CRIMINATING— (s^f3 Penalty) 
 
 interrogatories, whether, must be answered under statutes of Elizabeth, 
 
 539, 54U 
 
 CROPS, 
 
 growing, assignment of, wlicn not and wlien registered as bill of sale, 
 
 149,150 
 future, assignment of, under Act 1S78: I'if', ltd 
 under Act 1882 : lt)2 
 
 CROSS BILL 
 
 in foreclosure suit, 527, 528
 
 600 INDEX. 
 
 CROWN 
 
 within 27 Eliz. c. •!• -. 20-i 
 creditor under lo Eliz. c. 5 : 169 
 
 CURTESY, 
 
 whether Imsband now lias estate by, 295 
 
 whether husband can now bargain with, so as to be valuable considera- 
 tion for post-nu^Dtial settlement, 295 
 
 DAMAGES, 
 
 voluntary conveyance to avoid recovery of, 70, 73, 71 
 
 of laud not in existence recovered for, 101 
 action for, under voluntary covenant, l-OO 
 
 DEBT — (see Indebtedness) 
 
 release of, within 13 Ehz. 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 pa?t, 95 : see Act of Bankruptcy. 
 
 past and future advances, 95, 
 97,98 
 secured by bill of sale, 137 et seq., 143, 147 : see Bills oi' Sale. 
 book, assignment of, 115, 161 
 voluntary assignee of, whether creditor, 168 
 existing, good consideration, llU, 2-52 
 
 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 : sec CovE- 
 
 XAXT ; SErAHATION DeED. 
 
 assignment of, tinder Judicature Act, 1873, when, 411, 412, 4-56, 457 
 voluntary assignment formerly, v.-hen supported, 454, 455 
 
 deed creates enforceable, 254 
 ancestor's, avoids what conveyances, 165, 166, 3.33 
 liability of married woman's separate property for, 25 ct seq. : see 
 Married Woman. 
 of wife for, after separation, 3iJl ct seep 
 created, though legal transfer not comidete, when enforced, 398, 399 
 voluntary, paid pari passu with, for value, when, 398, 399 
 
 agreement to pay creates legal, ;)98, 400, '101 
 second settlement of same fund creates no, 401 
 security for, got by undue influence, 489, 490, 504 
 declaration of trust of, 411 
 
 voluutai'y, 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 SuiJSEQUENT Ckeditok. 
 when not necessary to avoid settlement, 520, 521 
 judgment evidence of, -527 
 
 assignment to trustees to pay, 433 et seq. : see Creditoes' Deeds. 
 probate duty payable on voluntary, 4-59
 
 INDEX. GUI 
 
 DEBTOR : see Cuedixur ; Debt. 
 
 DECLARATION OF TUUST-(^ro Trust ; Tui-stkk) 
 equivalent to transfer of le-ral estiilo, Ki:. 
 how made as to i>ersonal property, lol, 11 1 
 
 as to real property, and by wliom, WH, \\.i 
 voluntary, good against whom, Idl-, |(i:., 1:;k 
 nature of property subjeet tj, immaterial, -liW, I'.VJ, Va), +.M 
 by donor, question of intention, l(»:{, •lUt, l^*? 417 Uio -W'J 
 test of, -lot, 40o, 11 n, 41 C, -l:!!*, I4( > ' ' ' 
 
 acts or words relied on must sujjport no (jtlier view. 4-M>, iH, \[:> 
 imperfect transfer not generally a, 4U0, 407, 41o, 417 J-Jo, V-'.o, »::;» 
 
 when a, 425 
 instances of valid, 1 1-0, 441, 44-2 
 
 _ of invalid, 41.2, 143 
 of legal interest not legally assignable, 453 ji., 45;>-1-.jG 
 between husband and wife, 4i2 
 
 notice of, to cestui que trust of legal interest not necessary, 1 1."' 
 evidence to establish, 44f, 445 
 burden of proof of, on whom, 445 
 notice of, to trustees of equitable interest, whsn necessary, l.<I-10;; 
 
 to cestuis que trust of equitable interest, not neocssury, llAi 
 accejjtance of, by trustee not necessary, 451, 452, 453 
 
 DECREE— (sec Judgment; Order) 
 for specific performance, 511-513 
 enforcing equitable mortgage, 513 n. 
 
 DEED — {see Gift; Settlement; Voll'ntauy C'onvkvaxck) 
 
 property subject to power of appointment by, when wiihiu 1:5 E!!^. c. 5: 
 
 31, 33 : SCO Ari'OINTMENT. 
 
 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, 47."', 47' > 
 
 not ati'ected by subsequent acts of settlor, 458, 45: • 
 
 not to take effect until marriage, 47i>. 177 
 
 operates from date of delivery, 458, 175 
 
 executed, not set aside if grantor changed his mind, 4u5 
 
 executed, but not understood, not ujiheld, Ih^K M^l 
 
 not understood by grantor, set asiile when, •I'Hl : scr L'xdlk IxFLL'tXi r.. 
 
 without power of revocation, valid when, 50U, 5oI: «t'<3 KevoCATIox, 
 
 Power of. 
 fraudulent against creditors or purchasers merely JcclarcJ void by 
 
 Court, 528 
 part good, part bad, 458, 534, 535 
 obtained for one purpose and used for another, 4!'i'> 
 voidable only under statutes of Elizabeth, 317, 325, 103, lul . 
 
 Voidable. 
 voidable for undue inlluence, confirmation of, 505 ct scq. 
 void because voluntary, when, 4G0: nee Voluntauy CunvevaNCE. 
 
 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, 52i*, 530 
 loss of, not presumed, when, 459
 
 (302 INDEX. 
 
 BEET)— (contiuued) 
 
 probate duty payable on what, lof' : sec Duty ; Peo]!ate. 
 
 creditors': f-cc Ckeditoks' Deeds. 
 
 of separation, oOl et scq. : .see .SErARATiox Deed. 
 
 supported by extrinsic evidence, 2tit) et scq. : tscc E\ idekce. 
 
 several, forminfj one transaction, 2(i8-270 
 
 gifts of chattels by, 108, 409 : see Gift. 
 
 DEFECTS 
 
 in deeds not supplied for volunteers, 'V.il 
 
 formal, supplied only for -wife or Icj^itimate children, o9o, 294, 
 395 _ ^ _ 
 
 substantial, not aided, 295 
 in execution of powers, o9o et seq. : sec I'uw ek. 
 
 DELAY — (t<ec Acquiescence; Laciies) 
 
 when a bar against creditors, 44, 181 ct seq. 
 
 against ]nirchasers, "JO'i 
 
 in cases of undue influcuco, 507, 508 
 merely evidence of acquiescence, when, 507-509 
 when no bar in cases of undue influence, 508, 509 
 
 DELIVERY— (..xe Deed) 
 bond requires, 115 
 gifts by, 107, 408, IKj 
 of bond, when not enough, 4i0 
 not now always necessary for gift of chattel, 407 
 of voluntary deed, 458 
 
 to third i^crson, 475 
 
 DELUSIONS, 
 
 gift obtained by working ii]iou a pcrs^on's, when voidable, 105 
 
 DESCRIPTIOX— a:ce Biu.s or Sale) 
 
 of grantor or attesting witnesses to bill of sale, 15G et scq. 
 
 principle to test sufficiency of, 158 
 
 of witnesses, 156- 1-')!) 
 
 of gi-antors, 1.56-159 
 
 of occupation, 159, 160 
 
 of residence, 159 
 
 of company, 159 
 refers to what time, 157 
 trifling errors in, 1-59 
 of place where goods arc, not necessary, 160 
 
 DESERTION 
 
 of husband, wife's ecjuity, 200 
 
 DESTRUCTION— (sec Deed) 
 
 validity of deed not affected by, 159, 475 
 
 DEVISEE, 
 
 purchaser from, of settlor not under ■-I7 Eliz. c. 4: 227 ct seq. 
 
 DISCLAIMER— («^f Rower ; Release) 
 
 of power by married woman, whether now for value, 366 
 by trustee does not affect validity of trust, 451, 452 
 
 DISCOVERY 
 
 cannot be resisted under statutes of Elizabeth, 54u, 541
 
 INDEX. 603 
 
 DISCRETION 
 
 of Court as to wit'u'.s C(juilv, :;ni» 
 none to ])roveut Lfil't, Itil 
 as to costs, oil, .".15 
 
 DISPOSITION 
 
 of property by debtor, cause of, immaterial, IJ;!, io 
 mode of, immaterial, :>:{, i:, 
 void for want of consideratioD, wlioii, i'jO: wo VoLUXTAar 
 
 COXVEYAXCE. 
 
 voluntary, of property: ncc Gut, Wiu:x CuMrLKTE. 
 
 DIVORCE, 
 
 compromise of suits for, oO(j, 308 
 
 settlement on remarriage after, :]|1 
 
 marriage settlement not set aside ou account of, oil n. 
 
 DOCTOR, 
 
 gifts to, by patient, l-SS, 495 
 influence of, ou patient, -iSl-, 488 
 
 ^'c'c> UXDUE IXfLUEXCE. 
 
 DONATIO MORTIS CAUSA, 
 requisites of, 409 
 when not good, 40!' 
 Avheu good, 409, 410 
 
 DONOR — {sec Gift ; Uxdue Ixfluexce) 
 
 intention of, test -whether gift or trust, 407, l-.>0, 1 lo : ace Ixtk.ntiov. 
 
 how ]iroved trustee lor donee, lOJ!, 41.j, I'i'J, 410 : «r Tkcstkk. 
 
 of legal and equitable interest, 402 et seq. : sec Gift, Whkx CuMfLETK. 
 
 of equitable interest, 438 et seq. 
 
 of legal interest not legally assignable, l->! et se(j. 
 
 coniidential relation between, and donee, what, -kiiJ et sdi- 
 
 terms of gift by, cannot be altered, 101>, Wi, 181, .'»00 
 
 burdeu of proof on, as to gift or voluntary settlement by, when, -l-k', lb.», 
 
 48IJ 
 gift or voluntary settlement by, when voidable by, -ISO, -tSS et seq. : »ce 
 
 L/XDUE IXFLUEXCE. 
 
 deed not understood by, not ujiheM against, WO, l-Sl 
 
 voidable by, Ijy whom set aside, lSl,.jiJJ, .J'.Kl 
 burden of ])roof whether on, to shew he understood his act, 4b."> 
 voluntaiy settlement by, without power of revocation upheld against, 
 when, .JOO, 5Ul 
 not altered after death of, i-o 
 not duty of, to give notice of trust, i'rl 
 
 voluntary equitable assigumeut complete as between, and donee, when, 
 4.31, 4.:>2 
 
 DOWER, 
 
 giving up, when a consideration, 2So, 3G3 
 
 DURESS, 
 
 contracts under, 483 
 
 DUTY— (.^cc rilOH.VTE) , ^. . ^„ 
 
 probate payable on life interest or absolute power of revocation in BclUc- 
 
 ment of personalty, when, ."(O'J 
 on property taken as donatio mortis causa, 450 
 on gift inter vivos, when, 15'.* 
 on property voluntarily transferred to self and auothcr, when, io'J
 
 G04 INDEX. 
 
 ELEGIT, 
 
 copybolds taken by, witlu'n 1?> Eliz. c. r>, 18 
 
 possession by creditor under writ of, not a purchase, 227, 228 
 
 creditor by, may set aside deed, 527 
 
 ELIZABETH, 
 
 difference between 13 Eliz. c. 5, and Bankrui)tcy Acts, 11, 12, ]LI 
 
 and 27 Eliz. c. i : li 
 constructive fraud under statutes of, 15, 16 
 
 ENTRIES 
 
 in books uf Hrm a declaration of Irust, 440 
 
 EQUITABLE— (src Gift; Ixtkkest; Mortgagee) 
 mortfragee a ])urchaser under 27 Eliz. c. 4 : 219 
 owner of estate a purcbaser under 27 Eliz. c. 4: 219 
 charge, how far a judgment is, 226, 228 
 interests in projierty within lo Eliz. c. 5 : 17 
 interest in real ])roi;)erty within 27 Eliz. c. 4 : 202, 203 
 in purchase iu name of other person, 20U, 201 
 gift of, and legal interest, 4u2 et seq. : sec Gift, When CoMrLKTE, 
 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 : 296 
 
 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, 800, 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, 3U0 
 principle on which Court acts as to, 300 
 
 ESTATE TAIL, 
 
 resettlement of, when good against creditors, 2^- 
 
 a bargain for value, when, 26;!-265 
 barred by voluntary recovery with void uses, 192 
 reversion after, within 27 Eliz. c.4: 205 
 
 ESTOPPEL— (.sec Pakoe Agreement) 
 
 doctrine of, applies when, under 27 Eliz. c. 4: 202 
 
 of ])erson making parol representation from denying, 383, 384 
 
 by recital, 38:> 
 
 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 
 
 subsecpient indebtedness not, of fraud against subsequent creditors, 64 
 
 want of possession prima facie, of fraud, 114
 
 IM.KX. C05 
 
 EVIDENCE~(cou;mHr,7) 
 
 ^TlWaS'u''m^ ^'"^''^^' ^'"''""^ I^'^'"«^»«'«" formerly concla.iTc. 
 
 contiimanco in possession when imt, of frau.l I-'-' !•>■{ 
 possession valuable as, of reality of transfer 'l-'T' 
 
 lecitals m deed conclusive, against parties to d.-ed, :{?« ii 
 
 ot shentls authority, what is, 171, 17:i 
 
 of fraud iu executions in actions against Hhcrilf, 1 7 1 
 
 in judgments, 1 71-1 77 
 
 against subsequent creditors, 7^> 
 
 in plaintiff's judgment, &c., 17fj 
 
 to guide sheriiV, 17H, 170 
 of consideration for bond apparently voluntarv "t;7 
 of debts, what is, 57, 515 
 what, for rectification of deed, •1-82 
 
 of money afterwards advanced not admissible, whon, M* 
 what IS, of declaration of trust, 111-, 115 
 of complete gift, 103 : sec Girr, When Comi-lkte. 
 
 EXECUTION, 
 
 all property liable to, is within 1:] Eliz. c. 5 : 17, 2:! 
 
 money, how seized iu, 22 n. 
 
 separate property of married woman, when liable to, 28, 2l» 
 
 voluntary deed to defeat, void, 70, 72, i'!», 17;t 
 
 deed for value to defeat, 72, 1»!>, 107 
 
 payment to defeat, 104 
 
 assignment for creditors to defeat particular creditor, lOo, lOG, 107 
 
 judgments confessed to defeat, 106, 107 
 
 by executor, l(i8, 109 
 and seizure by sheriff, when good as against third parties, 17;:, 171 
 how far, avoids bill of sale, 153 
 creditor, successive bills of sale against, 151 
 
 bill of sale, when void against, 130, 1-iO 
 of bill of sale, requisites of, 155 et seq. : nee Bill op Salk. 
 of power defective when relieved against, 391. et acq. : «rc 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, iso 
 fraud in, how j)roveable, 174, 178 
 of complete trust enforced by Court, 405 : sec TnrsT. 
 
 EXECUTOR, 
 
 fraudulent alienation good against, 70 
 
 de son tort, fraudulent grantee is, when, GO 
 
 ))Ower of, to defeat execution, 1(17 
 
 position of, how diiiers from that of living dcljtor, 108 
 
 judgment confessed by, lU8, lU!», 110 
 
 may prefer one creditor to another, when, l'.»8, Un 
 
 voluntary conveyance by, when void, l(.>ij 
 
 covenant with, 400 
 of settlor cannot impeach settlement by him, 525 
 compelled to produce voluntary deed, when, 45!* 
 of donor may avoid deed for undue inlhience, 502 
 
 EXECUTORY GIFT: sec Gar; Vollnt.vuv Aguekmk.nt.
 
 GOG INDEX. 
 
 EX rOST FACTO CONSIDERATIOX : scp Coxsideration Ex Post Facto. 
 
 EXTENT OF MARRIAGE CONSIDERATION: see Coxsidkuation of 
 Maiuuage. 
 
 FAILURE OF CONSIDERATION : see Coxsideratiox. 
 
 FAMILY ARRANGEMENTS, 
 
 when within 1:5 KHz. c. 5 : 32, ij-t, 270 et seq, 
 27 Fliz. c. 4: 271, 391 
 
 when not within 1:; Eliz. c. ^>: :3k 82, 83 
 
 27 Eliz. c. 4: 270, 271 et seq., 27G, 391 
 between father and son uphelil, when, 205 et seq., 491 
 
 FAMILY SETTLEi\rENTS, 
 what are voluntary, 264, 26G 
 
 limitations in favour of collaterals in, 345, 346, 3G3, 364 
 between father and son uiihekl, when, 205 et seq., 491 
 
 FATHER — (see Child; Parext; Uxdue Txfluence) 
 
 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 COYERT: see Married Womax. 
 
 FICTITIOUS CONSIDERATION : see Coxsiderattox. 
 
 FIDUCIARY RELATION: see Coxfidextial Relatiox. 
 
 FIXTURES 
 
 separately assigned personal chattels under Pills of Sale Act, 1878 : 149 
 assigned v:it]i. land not personal chattels under Bills of S;ilc Act, 187^* 
 
 149 
 assignment of after-acquired, 101 
 substituted for those in schedule under Bills of Sale Act, 1882 : 102 
 
 FORFEITURE, 
 collusive, 34 
 
 in 13 Eliz. c. 5, extensive meaning of, 71, 169 
 voluntary deed to defeat, 71, 109, 17'> 
 rights of Crown as creditor on, 169 
 for felony aboli-shed, 72 
 under penal clauses of statutes of Elizabeth, 537, 542 
 
 FORGED LEASE, 
 sale of, 230 
 
 FORMAL POSSESSION: see Apparext Possessiox ; Possessiox. 
 
 FRANCE, 
 
 principles of 13 Eliz. c. 5, adopted in, 10
 
 JNDKX. G07 
 
 FRAUD— (s6c B.vDGK of Fuai-d; Constructivk FllvUt)) 
 abhorred by common law, '.) 
 coustaiit f,'rowtli of, I- 
 against creditors under civil law, 7-!> 
 
 suppression of, by Ijoth statntea of Klizabotli, :!, I, G^, ICD, 2l.'> 
 never ])re.sumed, 'ioD, ■2i\ ii. 
 
 concurrent jurisdiction of Courts of equity aud law aa to, .'i31, 532 
 UN»KR 1:5 Ki.iz. ('. r,, 
 
 constructive, .'>, (i, i:,, :',:, ct se(i., IG;'., |i;i 
 
 vitiates settlement, oi!, U 
 
 not when indebtedness slight, ;!:», "lO 
 
 settlement by person not ludebted, and not moanin;,' a, rooJ, :W, Vt, U), 
 
 50, ?•'» 
 presumption of, in voluntary settlements, when, 'AS, VJ 
 
 when not rebutted, ll 
 bona tide purchaser without notice of, protected, -I-j, 78 
 test of, all circumstances of settlor at time of settlement, oO 
 judged of at time of settlement, l:!, 1'), ;|.j, ti7 
 none, when, in voluntary settlement, -W, 50, ^d 
 marks of, against sab3ei[uent creditors, <!l, OtJ et acq. : ace SuBSRqcBNT 
 
 Creditok. 
 power of revocation mark of, 7ti 
 of vendor (uid purchaser avoids deed for value, 78, 85 
 of vendor alone avoids voluntary deed, l'5 
 none in sale to relation, 81, yl a.: see. Kklatiox. 
 marriage settlement when set aside for, 8ii-!*l 
 of husband or wife only does not avoid marriage settlement, !*1 
 badges of, in conveyance for value, '.'.J et seq. : sc H.MXiK op Fraud. 
 continuance in possession when mark of, ll^! et sei{., 1:15: gee Pos« 
 
 SKSSIOX. 
 
 evidence as to, in judgments and executions, 174 et seq. : sec E\ idkscj:. 
 
 UNDER 27 KLIZ. C. 4, 
 
 presumed in first conveyance from fact of second, G, 187, IS'^ 
 constructive, :3, .5, 15, 19:j et seq., :)24, 465 
 conveyance for value void if actual, 197 
 
 ■when void for constructive, 107-10!"» 
 bona fide purcliaser for value without notice of, protected, 188, 1^7. :V25 
 shewn at time of sale, 14, 15, 188 
 purchase in name of third person, whether a, U>9-201 
 penalty under statutes of Elizabeth only in cases of actual, 5.i>i, .'..;■' 
 
 VOLUNTARY SETTLEMENT 
 
 set aside for, -lOU, 4G2, 480 : see Undue Influence. 
 
 cannot be avoided by setting up fraud of settlor, 170 
 
 between parties avoids, 480 
 
 rules as to undue inlluence apply to. ll'8 
 
 must be alleged, !jo'-) 
 
 WILL 
 
 set aside for, 498 
 
 rules as to undue influence apply to, 498 
 
 FRAUDS, STATUTE OF: .sec Statute ok Frauds. 
 
 FRAUDULENT DEED 
 
 act of bankruptcy, when. 1 L 12 
 void against sheriff, when, 171 et seq. 
 when cancelled, 529, 530 
 
 UNDER 13 ELIZ. C. 5, , i i 01 ^ oi- o-»r 
 
 good between parties and parties claiming under settlor, .UO, .IW, J2.», 
 
 " 463,461 ..,_.,. . ro- 
 
 void only against creditors, 68, :I17, :>2-j, 46 1, o-S 
 voidable, not void, ;{1 7, :-!25 
 good by ex jjost facto consideration, 31-J-318, 52-j et seq.
 
 608 ]XDEX. 
 
 FRAUDULENT BEET)— (cnntinucd) 
 rxDEU 27 ELiz. c. 4, 
 
 good between i)arties, and all but purchasers, 31G, 317, 325, 405 
 void only against purchasers, 2U8, 209, 317, 325, 465, 529 
 voidable, not void, 317, 325 
 good by ex post facto consideration, 315 ct seq. 
 
 VXDEK 151 LLS OF SALK ACTS, 
 
 under Act 1878 as against specified persons. 130, 137, 405 
 1882 as against all world, 110, 405 
 
 FKAUDULENT PREFERENCE— (sf'ft Act of RAXKiiurTCY; rRioiuTY) 
 void as such, and an act of bankruptcy, 12, 100 
 object of doctrine, lul 
 
 when it arose under Bankruptcy Act, 1809: 101, 102 
 declared an act of bankruptcy by Act of 1883 : 102 
 when it arises under Bankruptcy Act, 1883 : 102. 103 
 to what cases, applies, 1U3 
 applies as between what persons, 103, 104 
 
 FRAUS CONTRA ALIOS IRRITA, 470 
 
 FREEHOLDS, 
 
 gifts of, 412 : see Gift. 
 
 FUTURE-ACQUIRED PROPERTY: see After-acquireu Puoperty 
 Bills of Sale. 
 
 FUTURE CREDITORS : see Subsequent Creditor. 
 
 GAME QUALIFICATION, 
 
 conveyance for, when bindiag on grantoi*, 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, 00 
 
 in deeds for value, 94, 97, 98 
 of conveyance an act of l)ankruptcy, 11, 12, 94-90 
 
 GIFT 
 
 of annuity, 22 
 
 between relations, 50, 57 : see Relation'. 
 of chattels, 407-409 
 
 of choses in action, 110—113, '147 ct seq. : see CiiosES ix AfTiox. 
 of equitable interests, •1'38 ct seq. : see Equitable. 
 executory: see Voluntary Agreement. 
 returned, 408 
 conditional, 409 
 of stocks and shares, 413 
 mortis causa, 409 : see Donatio Mortis Causa. 
 of property by particeps criminis, 409 
 of mere expectancy, 417 et seq., 451 
 
 incomplete, not aided by Court, 390, 391, 393, 402, 403 : see Incomflete 
 Gift.
 
 INDEX. 609 
 
 GIFT — {cnniinnc(l) 
 
 incomplete, passes no property, lOj 
 must be perfect. 307, 102. lO;;, -III" 
 
 formal defect as to, aided by r..iirt, wli .^!H-:]OG 
 
 iraud on tbird parti(>s in, l-J.". 
 
 on creditors: src Cukditok. 
 
 on purcbasers: .sf(- T'liu uasku. 
 
 agaiiint donor, ISI ot seq. 
 between bnsband and wife, 120-125: itro. Ilir.sinvi. • Win- 
 incomplete, defeated by subsequent gift, -I?*: 
 of land, n 2 
 of leasebolds. 112 
 
 of legal interests not legally assignable, ■\:,'^ et Hoq 
 beWn persons in contidential relati.m, H:] et s.'u. • sr, f\,M ,i.. s,,.. 
 
 Relation. 
 of reversionary interests, US, 450, 451 
 revocable, wben, I'M 
 of right to set voidable deed aside, 412 
 vests i:)roperty in donee subject to his dissent, 40G 
 settlor not aided to defeat his, 170, 511, 512 
 nature of and interest in, immaterial, 150, 451 
 not altered after death of donor, 425 
 procured by fraud set aside, 460, 4»J2 
 
 GIFT, WHEN COMPLETE, 
 
 inter vivos by transfer to donees, 4u3, 4U0, 415 
 
 to trustees for donees, -100 
 by declaring self trustee for donees, 403,404, 405. 415. 41 0, 
 
 417 
 vests property in donee, even if ignorant of it, -UM} 
 subject to his dissent, UJij 
 Court will not alter intended mode of, for volunteer, 400, 407, 414, 415, 
 
 4:30, 439, 445 
 imperfect, not therefore upheld as trust by donor, -107, 415, 417 42". 
 439 
 when upheld as trust, 418. 119. 1-25 
 resulting trust for donor, whether of any part of, 43(\ 431 
 transferee, whether takes benoticially or on trust. 431—43:5 
 test of intention of donor at time. 404, 4:50: see Ixtextio.v. 
 enforced by Court, against whom, 103, 406, 415, -1^59. 445, 460. 463 
 generally irrevocable, 405, 433, 4:>6 
 revocable if assignment to pay debts, 433 et seq. : ite/' Creditors' Deeds. 
 
 if merely for convenience of donor, 136, -W)? 
 classification of cases of, 405, 406 
 as to part only of projierty, 457, 458, 535 
 as to some only of limitations, 458. 534 
 want of consideration immaterial. 460 
 unimpeachable, unless for fraud or undue inflaence. 160, 404, 4^ 
 
 OF LEGAL AND EQUITABLE INTEREST 
 
 by transfer to donees, 402, 106 
 
 by declaration of trust by donor, 403, 404, 415. 416, 417 
 
 of chattels by jmrol with or without delivery, 407, -108, 410 
 
 by deed, lO-S 
 
 by donatio mortis causa, 409, 41U 
 of choses in action, 410, 411, 412 
 of release of power, 112 
 of copyright, 412 
 
 of right to set aside voidable deed, 412 
 to charity, 412 
 
 of leaseholds, freeholds, copyholds, 412 
 of stock, shares, bonds, debentures, 41:.?, 414 
 
 R R
 
 GIO INDEX. 
 
 GIFT, WHEN COMPLETE— (co>if<uu(?f7) 
 
 Ot" LEGAL AND KQCITAIU-K INTEREST — (cOntilincd) 
 
 from Imsbaml to wife, whether formerly rejTanloil as trust. iiO-li!!- 
 
 when within Couveyancinc,' Act. IHSI : ■\'2-2, l"2t 
 when witliiii INlarried Women's Property Act, 
 
 1882:422, 4-21., 4-25 
 now tested as if between strancjers. 42 k 425 
 
 OF KQTJITABLE INTEREST, AND LEGAL INTEREST IN TUUSTEES, 
 
 by transfer of equitable interest to donees, and 
 
 (a) promisinjT transfer of legal estate to donees, 425-4^0. or, 
 {h) vesting legal estate in new trustees for donees, 425— t3U 
 
 how different from case of equitable and legal interest in donor, 4-30 
 
 OF EQUITABLE INTEREST ALONE, 
 
 (a) when donor is both legal and equitable owner — 
 
 by declaration of trust, 438-445 : sec Declaration of Trust. 
 declaration of trust, when sufficient, 439-441 
 
 when not sufficient, 440-442 
 trusts of land, tenements, and hereditaments, 443 
 
 of personalty, 4 14' 
 nature of property immaterial, 438, 439 
 {!)) when donor is merely equitable owner — 
 by assignment direct to donees, 445 
 by declaring a trust in favour of donees, 445, 44G 
 trustees for donees may be existing trustees, 415, 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, 
 
 whatare, 17, 17n., 22, 23, 135 
 
 GKANDCHILDREN, 
 
 whether within consideration of marriage, 342, 358 
 
 of former marriage, whether within consideration, 343, 346, 347, 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
 
 jxi>i:x. Gil 
 
 HERTOT, 
 
 gift to defeat, r,\?, 
 
 IIOLLANn, 
 
 principles of!:; Eliz. c. :., a-lnpt.Ml in. 1(. 
 
 IIOSI'ITAL-CserCuAinTY) 
 
 conveyance to, whctlior witliin -27 VAh. c. i: 2nn 
 
 HUSBAND— (ftfe CoxsinEUATrnx of ^fAuiiiAr.K; Wipk) 
 
 purchase by, in name of wife, witliin 1:! Kiiz. c. :,-. -20, 2\ 
 
 T 1 ■,-. r P •„ , whotlier witliin '27 KHz. c. 1: 200Ti202 
 
 liability of, for wife's antc-miptial doljts, 2'> et 80.|. 
 
 rights of, over wife's property, lonnerly, li'., 2H\. 2'.Hi, HU, 307 
 
 none now, 'Ji', 2'2'->, "JMo 
 marriage seltleiiieut by fraud of, alone, not formerly avoided. 0<"V-i>2 
 
 whether now avoitlcd, ;*<J, 91 
 a purchaser by marriage settlement, 222, :'>\2 
 
 of his life interest, oil 
 not now a purchaser by jus mariti, 2-2:1 
 
 life interest to, in own property to cease on bankruptcy, void, 338 
 in wife's property, valid, :'.;58, :*.:ii) 
 to wife in husliand's jiroperty, valid, ?,?,9 
 all limitations to, in marriage settlement valid, :{|1, 342 
 defective execution of power not supplied for, ;!ft."» 
 contracts by, with wife formerly none at law, 483 
 may contract with wife as to separate property, 281, 282, 283: see 
 
 Contract. 
 undue influence of, over wife, 483, 4-84', 401 : sec U.vnrE Ixfluesck. 
 burden of proof on, when gift made by wife, when, 4-88, 4!»2 
 gift to, or voluntary settlement on, by wife, when voidable by her, 491 . 
 
 492 
 gift, or voluntary settlement on, by woman on intended, 4!'2 
 
 on supposed, 41'2 
 transfer from, to wife, whether formerly a trust, 42t'-122 
 whether an imperfect gift, 422-424 
 under Conveyancing Act, 1881 : 42 J- 
 under Married Womcn'.s Property Act, 1882 : 
 424-, 4:2r, 
 trustee for wife, 442 
 
 declaration of trust by, for wife. 4- 11, 444- 
 bargain by, with wife, supported post-nuptial settlement, when, 283 ct 
 
 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, 20G-3(»0 : 
 
 see Equitv to Settlement. 
 contract by wife or trustees to indemnify on separation, 3<jl et 8C<i. : 
 
 see SErARATioN Deed. 
 when restrained after divorce, selling real estate, settled, o72 
 
 IGNORAJNCE 
 
 of donor, gift void for, 480, 481 
 
 ILLEGAL CONSIDERATIONS, 
 
 compounding felony, IJII 
 future separation, 312 
 continuing cohabitation, 312 n. 
 deeds void for, 4G8 
 
 It u 2
 
 r, 1 2 INDEX. 
 
 ILLEGITIMATE CIIILDREX. o o ^ o<a 0-1 0-0 
 
 settlement on, by widow on marnase, 3^.., 3l7-3i9, Sol, o.._ 
 
 by widower, ".!:>, 3-V2, 3'>'^> 
 trnst for fntnre, void, 4C8 
 
 i:\[:NroRALiTY, 
 
 deeds void for, 468, 460 
 
 IMPRISONMENT __ ^ 
 
 for otFenoes under the statntes of Ehzahoth, ...w, ..1,. 
 
 IMPROVEMENTS 
 
 in mode of reaching property alter settlement of it, \1j 
 reimbursement for permanent, when, 514 
 
 IMPROVIDENCE, 
 
 deed void for, 496 
 
 INADEQUACY -, , a .r t . 1 f 
 
 of consideration not necessardy 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 deed, 244-246 
 
 as between relations, 83, 246, 247 
 
 in sales of reversions, 249 
 
 INCAPACITY, 
 
 gift by person under, 483 
 
 INCOMPLETE GIFT— (see Gift ; Gift, When Complete) 
 notaidedbyCourt,390,393,397,414.439 451,4.53 454. 
 not generally supported as a declaration of trust, 406, 410, 4.J0 
 acted on may be, 418, 419, 425 
 
 INCUMBRANCER-(see Mortgagee) ^^^ ,., oqa 
 
 specific, how differs from general creditor, IbS, 104, 230 
 when postponed under 27 Eliz. c. 4 : 197-199 
 purchaser pro tanto, when. 219 roi/r-oi/^- 
 
 ■whether a creditor under 13 Eliz. c. 5 : o7, 08, 16.j, 164 
 
 INDEBTED— (.see Creditor; Ixdertedxess ; Voluntary Conveyance) ^^ 
 voluntary conveyance by person, when void, 6, 14, 35 et seq., 53, 68, 75 
 
 when valid, 49, 50, 51 
 by person about to become, void, 6-5, 7.3, 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, do, 39, 47 
 rule laid down as to, 38, 39, 49, 50 
 insolvency not meant, 39 
 
 in what sense it may be, 41, 42 . ^ , ■ , r oo 4a ^oo 
 
 so great as to induce presumption of fraudulent intention, 38, 40, o20, 
 
 521 
 
 whether settlor's, hnown to him or not, nninaterial if indebted, 41 
 
 American doctrine on, 53, 51 
 
 where there is express fraud immaterial, .5<», 68, 75
 
 INI'KX. 613 
 
 INDEBTEDNESS-(co»/nn'.'J) 
 
 couveyiiit,r largo part of property docH not nece«Karily proTO, -10, 50 
 what suflicieul foiunlatiou I'ur iii'iuiry uh to, .Mt> .'>I8 
 to the extent of insulvency avoidw seUldineut, :{'.», lit 
 subsequent, not evidence uf I'rauiUilent intont aRaiuBt mib»«iui-nt 
 creditors, t! I- 
 creditor can impeach setllenicut on ground of iM.'lUor'», 
 when, 51H et se(i. 
 under '27 Eliz. c. 4, immaterial, 1'., Itl, l:i;; 
 
 INDEMNITY— (see Consideration; Covknant; Skpaiiation Dkkh) 
 
 covenant of, against wife's debts, good when by third party. :''•! ct m<\. 
 
 by her uloiie, ;'>""i5 
 good consideration, 221, 2.>t 
 assignment by trader by way of, when act of bankruptcy, 'J5 
 
 INDEPENDENT ADVICE-(«ee Unduk Influence) 
 want of, a mark of undue influence, 40G 
 costs where none, 551, 552 : see Costs. 
 
 INDICTxMENT, 
 
 compromises of, when valid, :jlU, oil 
 under lo Eliz. c. 5 : 54o 
 
 INFANT— (.^ee Child) 
 
 contracts of, :38I, :J8-1, 483 
 
 liable to i^enalties under 27 Eliz. c. 1 : 542 
 
 INFLUENCE, UNDUE : see Undue Influence. 
 
 INJUNCTION 
 
 to restrain trustees dealing with capital fraudulently settled, i>2 
 
 covenant to live apart enforced by, 'Ml 
 
 exercise of power of appointment by debtor restrained by, 531 
 
 INQUIRY 
 
 as to settlor's circumstances at time of settlement, when directod, oO,ol, 
 
 •Mb, .M7 
 when not directed, 50, 
 
 Mil, 517 
 
 as to consideration needless if fraudulent intent proved, <S, H^i 
 
 when debts not properly in evidence, 510 
 
 when settlement made by trader, 50, 51 
 
 at volunteer's risk, 517 
 
 when bill tiled in ignorance of deed, 518 
 
 as to consideration, 2ti6, 518 
 
 made in administration action as to settlement, 526 
 
 INSANE PERSON— (see Lunatic) 
 contracts of, 483 
 
 INSANITY, 
 
 degrees of, 483 «. 
 
 INSOLVENCY— (see Indebtedness) 
 
 of vendor, 81 . . -, 
 
 of settlor, what is, in regard to voluntary deed, .5/, 6.', 41, •»- 
 
 under Bankruptcy Act, 42, 4^3 
 subsequent, will not avoid deed, when, 53 
 of husband, marriage settlement when set aside, Bt'-Jl
 
 G14 INDEX. 
 
 INSOLVENCY— (cou/i'uitefZ) , , , 
 
 assignment of whole property admission of, under bankruptcy law, Ji 
 
 as distinguisheu from bankruptcy, 101 
 
 of husband, wife's equity to settlement, oOO 
 
 schedule of debts iu evidence against debtor only, 515 
 
 of settlor after action commenced no bar, 521 
 
 INSTRUMENTS : see Bills oi' Sale. 
 
 INSURANCE: sL'e LiFK Insurance ; Policy. 
 
 INTENTION 
 
 to defeat creditors to be shewn at time of conveyance, 15, oo, 50, 67 
 
 fraudulent, of settlor, when inferred, oS, 11 
 
 l^resumed from all circumstances of settlor, whether known to him or 
 
 not, 40, 11 
 actual proof of, to defeat, defraud, or delay creditors, when not necessary, 
 
 4U, 11 
 to defraud, when plain, avoids settlement, 41 
 future creditors, I'o, 61, 75 
 
 by trader, how shewn, 65, 66, 75 
 must be express, 75 
 of donor in voluntary conveyance alone material, -15, 78 
 of vendor and purchaser in conveyance for value, 78, 85 
 actual and express, to defraud avoids conveyance for value, 8-4, 85 
 fraudulent, overrides any valuable consideration, 89 
 of j)arties in assignment to secure debt and advances, 05 
 to defeat purchasers, 187, 188, 2ol, 2:38: see Purcuaskk. 
 of donee of power when aided by Court, o95, o96 
 voluntary agreement not moditied 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, 530-541 
 
 IRELAND, 
 
 statutes of Elizabeth apply in, 2 
 
 resettlement by tenant in tail, not within 13 Eliz. c. 5, in, 24 
 
 principle of Edioanh 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 
 
 registration in, 149 
 judgment relates back against volunteers in, 229 
 assignment of leaseholds not always for value in, 258, 250 
 family settlement upheld as bargain in, 263 
 consideration between husband and wife a question of bargain in, 202, 
 
 293, 294 
 settlement supported by equity to settlement upheld against subsequent 
 
 purchaser in, 297, 298
 
 INDEX. G15 
 
 IHELAND— {continued) 
 
 |nurriase on faith of settlement, when co.,si,l..rution for. in. :J2o, ;:jl 
 
 nl'l^T^^^'^^'r "^ ^"^"'^ '""""'""^^ ^'^'''''^ ^«'- valid iimilaUoD. 
 
 U]iuela in, ooo, oob 
 
 purchaser from grantee, whether prior to HubBcqucut from grantor in. 
 
 ^''o;ls^?o^^-^^^^^^^^^ '^^'^'^ ""^^ ""^0 deed voluntary in, 
 
 consideration not closely scrutinized in. ;i07 
 
 assignment from husband to \vife of policy in. 42:^ 
 
 absence of power of revocation in voluntary deed" how rocardcd in. r^ 
 
 contribution whether enf.,rced a-ainst voluntary L-runtvc in :.;;:. :,M 
 
 assignment of deljts or other legal chosen iu action iu. H7 
 
 ISLE OF MAN, 
 
 13 Eliz. c. 5, extends to, 1 n., l(j 
 
 ISSUE — {see CoxsiniouATioN oi' Markiagk) 
 
 ])urcliasers under marriage settlement, 336, 3n, 312, :V>H 
 
 of former marriage, whether within marriage consideralion, 340, 346 
 
 et seq. 
 of future marriage, 3 13, 353 et seq. 
 
 JOINT POSSESSION— (see Possession) 
 
 of bankrupt and others not within reputed ownereliip, 129 
 with vendor or settlor, V29, 130, 131 
 transfer of stock into, when a gift, 432, 433 
 
 JUDGMENT— (see Creuitou; Juugmext Cueditor) 
 
 for debt due, or fraudulent and execution, within 13 Eliz. c. b: 33 
 
 confers what rights, 225, 226, 228 
 
 may not be tacked to mortgage, 225 
 
 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 settlemcut, 526 
 
 JUDGMENT ACT, 
 
 enlarged scope of 13 Eliz. c. 5 : 18-22 
 
 JUDGMENT CEEDITOK— (see Cbeditor ; 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. •!• : 22-1-229 
 in America, 229 
 in Upper Canada, 221 n. 
 right of, to priority of payment, when, 52(i 
 
 not ailccted by Judi.ahn. A, 1. 1F75: :.26 
 
 JUEJSDICTION, CONCUEREKT, 
 
 of 13 Eliz. c. 5, and Bankruptcy Acts. lU 
 
 of law and equity on statutes of Elizabeth, 531, i>32
 
 61 G INDEX. 
 
 JURY, 
 
 attempt to screen more ])roi)erty than necessary, question fur, 118 
 
 snmmoneel by sheriff, 17'.l 
 
 case when sent to be tried by, ooJ. 
 
 fraud as shewn by keeping possession is question for, 121, 126 
 
 KIXG, 
 
 27 Eliz. c. 4, extends to, 201, 205 
 
 forfeiture to, 169: see Ckowx; Foiu'eiture ; Pexalty. 
 
 LACHES— (see Acquiescence; Delay) 
 effect of, under 13 Eliz. c. 5: 184 
 
 under 27 Eliz. c. 4: 202 
 
 as to undue intiuence, or fraud; o07-509 
 coverture an excuse for, when, 509 
 
 LAND — (see Property ; Eeal Prorerty) 
 
 possession of, after sale, when fraudulent, 115, 116 
 
 after mortgage, not, 114 
 all interests in, within lo 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 Giet. 
 
 LANDLORD, 
 
 distress and sale by, 133 
 collusion of, with tenant, 470 
 
 LAPSE or TIME— (see Delay ; Laches ; Limitation) 
 effect of, under 1:5 Eliz. c. 5: 44, 184 
 
 under 27 Eliz. c. 4 : 202 
 bar to remedy for undue influence, when, and when not, 507-5o9 
 
 LAW, 
 
 assignment of legal interests not assignable at, 406, 453 et seq. : sec 
 
 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, 221 
 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. I, in Ireland, 258, 259 
 and conveyance of freeholds, whether voluntary under 27 
 Eliz. c. 4 : 259 
 doctrine oE Price v. Jenkins as to assignment of, only apijlics to 27 Eliz. 
 
 c. 4: 259,260 > J n 
 
 specific 2ierformance of voluntary contract to sell, 513 
 settlement of, impeached without delivery of, in execution, 527
 
 TNDKX. G17 
 
 LEGAL 
 
 assigumcnts of iuterosts not assi^'iiublc ul law, VJij, l-VJ ct uoij. ; sec Uirt, 
 
 W'llKN Co.MI'LKTK. 
 
 ir volimlary, iniist Ik; complete, KU). P,? 
 
 of estate, ttoiior liaviii;,' control of, klo, 106, iio et ••q., 430 
 obli^^atiou a j^ood cousideratiun, "Jl'i 
 liability, when enforced without legal transfer, o08, 399 
 
 LESSEE — (src CovKNANT ; Leaskiiolu) 
 
 a inirchaser within 27 Eliz. c. K when, li'JO 
 
 covenant by, supports assignment of leaseholds under 27 Eliz. c 1 . 2:>i, 
 
 in Ircluud, when, 20^, 'J59 
 
 LETTERS 
 
 constituting a declaration of trust, 111 
 
 LIABILITIES 
 
 of settlor, when and how to be estimated, .")7 
 
 on mortgage, 57, 58 
 
 wheu very fluctuating, 58 
 
 to his firm, 58 
 
 for contingent debt, 58, 7o 
 
 as guarantor, 58, 59, 7'<i 
 
 as surety, 5!) 
 
 for damages in action, when, 50, 71, 71, 75 
 incurred for another, good consideration, 'J51- 
 at time of settlement to avoid it need not be debts, 515 
 
 LIEN, 
 
 creditor can sue under V-'> Eliz. c. 5. without, 5'2<3, 527 
 actions as to, when in Chancery Division, o-j-i 
 
 LIFE INSURANCE— (see Policy) 
 within lo i'^liz. 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 : H, 1 •> I 
 in voluntarjf deed, how construed, 458, 461 
 
 LIMITATIONS IN MARRIAGE SETTLEMKNT 
 
 to husband, wife, and issue, :!36, o:'.7, :M1. :! 12, :'.|t'> ,......- 
 
 to children or other issue of widow of former marriage, 343, 3k>, 3l«, 
 
 349-351 
 to illegitimate children of widow, 31-3, :'> 17-:'' I'.' 
 to children or other issue of widower of former marriage, 352,353 
 to illegitimate children of widower, :'.52,35:'. _ 
 
 to children or other issue of husband or wife by a future marriage, J-W, 
 
 to children of future marriage supported between two valid limitution«, 
 
 354, 355 
 all now a question of bargain, 352, 353, 355-357 
 bargain for, when inferred by law, 358 
 presumption of bargain for, wheu made, :'.58-3htt 
 
 when not made, 3<J0, 3»il 
 bargain for, must be i)roved by whom, 358 , _, . ^ 
 remoteness of, formerly ground to support, 3iil. obL 
 in favoTir of collateral, when bargain by stranger, 30^ JW 
 in family settlements, 345, :'>4t5, 3(33, ;!64 
 what voidable for undue influence, 502 
 some good, some bad, 531, 535
 
 618 INDEX. 
 
 LIQUIDATOR 
 
 of unregistered comi^any, whether creditor, 525 
 
 LIS PENDENS, 
 
 j^rofits received during, whether decreed back, 529 
 registration of, whether protection to vohinteers, 631 
 
 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. 
 
 LIAINTENANCE, 
 
 trust for, in voluntury deed, -479 
 
 MALEFICIO, 
 
 debts founded in, distinction as to, 165 
 
 MARRIAGE, 
 
 fraudulent, 89, 00, 332 
 
 settlements, when avoided, 89-91 : sec Makuiage Settlement. 
 
 mutual covenant on, as to fiiture property ujjhcld, 92 
 
 property got by fraud settled on, 92, 332, 333 
 
 husband now acquires no property of wife by, 223, 295 
 
 contracts enforceable by whom, 391, 392 
 
 on faith of voluntary deed, 317-320: see Coxsiberatiox Ex Post Facto. 
 of representations made, 321, 386 : see EEriiESENTATiox. 
 
 second, settlement on, 343: see Coxsideeatiox oe Maeiuage. 
 
 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 Limit.vtions i\ Makuiage 
 Settlement. 
 
 construction of contract a question of intention, 357 
 
 agreements before and settlements after, 365 : see Post-xlttial Settle- 
 ment. 
 
 not part performance of parol ante-nuptial agreement, 372 
 
 settlements on children by future, when binding, 343, 353 : sec Cox- 
 
 SIDEKATION OF MaKKIAGE. 
 
 deeds to take effect on, when binding, 176, 477 
 settlement in consideration of particular, 331-, 477, 478 
 
 MARRIAGE CONSIDERATION: sec Considekation or Makriage. 
 
 MARRIAGE SETTLEMENT— (sec Considepation of Makriage) 
 is on valuable consideration, 89, .332, 333, 340 
 by man indebted, if honest, upheld, 90, 91 
 or now by woman, 91
 
 \ 
 
 INDKX. 61'J 
 
 MARUTAGE SETTLEMEN r-(co»,/u.,w</) 
 
 whether upheld if ouc party inuoccnt, 'Jl, {'2 
 
 not a bill ol' sale, 11>S 
 
 by heir or devisee not liable to ancCHtor'rt dobU. 'AM, X)i 
 
 set aside if marriage a fraud on crcditorH, Ki», :i;iii 
 
 not set aside un account of divorce, :tH u., ^IJ »i. 
 
 Avhen altered by I'robate Division, :U'2 n. 
 
 set aside only when marriage itself a fraud, I'U, ;;jj 
 
 third persons interested in, '.V.U'), :!;!7 
 
 of property got by framl, !»2 
 
 parties bound by, ;!:!(>, :'.:'.7 
 
 issue purchasers under, :>:)() 
 
 ou husband for life or until bankruptcy, 338, 330 
 
 on wife not to be defeasible ou her bankrupU-v. 33h 
 
 on husband or wife of other's property, ;;:'.H, ;;:;:i 
 
 ou wife for purposes of separate trade, Ac, 33j,;Uu 
 
 second, on remarriage after divorce, 311 
 
 what limitations iu, protected, 311, 312, 3i3 : «cc LtJllTATlO.XS IX M*tt» 
 
 KIAGE SeTXLEMKNT. 
 
 limitations in, how upheld furincrly, 312 ct scq. 
 
 now upheld in, if a bar^^ain, :I87 ct sci]. 
 iu favour of collaterals upheld when nia-lo by a »tnmg«T, 
 o&l, 3(53 
 ulterior limitations in, when voluntary, 31-3 
 
 supported by other cuu-iidcralioas, .lij, ..» ., .>!<> 
 enforceable by whom, 391, o92, 030 
 how afi'ected by undue inllueucc, 5U- 
 when merely voluntaiy, 177 
 
 MARRIED WOMAN— (.-^ce Contract ; Skttlume.st ; Wifk) 
 separate property of, what is, 2y, 20,'J'.i5 
 
 property of, how tar liable for ante-nuptial debts before Act 1 ^7" : 2'; 26, 29 
 
 under Act 1^7<': -7 
 lb7i: lis 
 1KK2: tiX, 20, no 
 settlement of, within 13 Eliz. c. 5 : -■>, -''j, 31 
 execution against what separate property, 28, 30, 31 
 bargain with husband supported settlement of, formerly, -;.< el boj., -.•■•, 
 •296 
 
 whether now supports sc"' * '', 290, 2D6 
 
 concurrence of, when valuable consideration, 2'!; I. 
 
 contract of, with husband or stranger, 2bl, 28 J, 2:. . .... j.. icSJ, Iti-i : tec 
 
 COXTKACT. 
 
 contracts of, bind her then separate property, 281, 282, 283, 293, -183 
 
 her after-acquired property, 3U9 
 do not biml property subject to restraint on anticipation, 2''_' 
 cannot contract if then no separate i)roperty, 2>'2, 2'-;3, :;•':,. :;m.i 
 contract of, founded on equity to Bettleinent fur goinl consideration, 
 
 equity to settlement formerly, when, 296 et seq. : »co Lquirr to btnLt- 
 
 MENT. 
 
 has no equity to settlement now, when, 2^6 
 
 separation deed by, when for value. 3Ul et si-'p : ^.. .•-Ki'AiivTin> DtitV. 
 
 covenant by, in separation deed, 3U3, 3UI-, 3u0 : sm Co\ e.vam. 
 
 settlement by, on marriage of stranger, 312 
 
 consent of, when not irrevocaljle, declaration of trust, ■Ml, 
 
 conveyance to, by husband, -120-120: «io Gikt, When CoMrLBTi:. 
 
 defective execution of power by, when supplied, 39G, 397 
 
 MARRIED WOMEN'S PROPERTY ACTS: tee Tabu or Staivtm 
 
 Cited.
 
 620 INDEX. 
 
 MARSHALLING 
 
 securities in favour of volunteers under 27 Eliz. c. 4 : 209, 468, 535 
 
 not against volunteers, 5o5 
 
 not as between two volunteers, 5o5 
 
 "MEDIUM" 
 
 of conversing with deceased persons, 495 : see Uxule Imlul:xck. 
 
 MEMORANDUM, 
 
 declarations of trust by, 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 et seq., 27!», 28U, o91 
 agreement on, not enforced, 390 
 
 MINERALS 
 
 within 27 Eliz. c. 4 : 203 
 
 MINING AGREEMENT, 
 parties to, purchasers, 220 
 
 MINISTER OF RELIGION, 495 : see U-vdue IxiLUENC£. 
 
 MISCONDUCT, HUSBAND'S, 306, 3o7 
 
 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 rectiticatiou, 482 
 deed voidable for, how confirmed, 5U5, 507 
 
 MISTRESS, 
 
 deed on separation from, voluntary, 312, 313 
 
 MIXING FUNDS, 
 
 a declaration of trust by, ^141 
 
 MONEY" 
 
 was not, but i.s now, within 13 Eliz. c. 5 : 18, 20, 22 
 
 formerly only within 13 Eliz. c. 5, on death or bankru|)tcy of settlor, 
 
 1 9, 22 
 how seizable, 22 n. 
 gift of, when complete, 410 : see Gift. 
 
 MORAL ORLIGATION 
 
 useless against creditors or purchasers, 215, 249, 276 
 of providing for family, 368, 397 
 
 MORTG AG I]— (.sec Mouxgagek) 
 
 actions as to, when assigned to Chancery Division, 532 
 
 volunteer may redeem, 467 
 
 land subject to, settled, proceeds of sale subject to settlement, 467
 
 INI)i:X. g^;j 
 
 MORTGAGE-(co»<mj(ef?) 
 
 UXDKR ]:! Kuz. c. r., 
 
 how far a debt, 57, ^S 
 
 to defeat damas cs, 71,7- 
 
 possession uot usually t,nvcn lui.lor 111 ||:, \o'\ lo' 
 t:.\ueh -27 Ki.i/. c. I, ' ' ' ' *' " 
 
 mar^shalllll(iJ of. Ill favour of voIunt.'or.'JUM . « • «■ 
 
 voluntary sottlemont only disiilaccl l,y, 2(>H, iOfJ '21:! -MJi 44K5 
 
 power to, to any <'xt.«nt. a pnw.T of revocation -'n 
 
 money must be really advaiiceil, lMH ' 
 
 specific, to creditor makes purcl'uiaer, 2:]1 
 
 fraudulently represented as sale. riRhts of volunleorB acain< A*iH 
 
 rXDEE lULI.S or SA1,E ACTS— (wC 11I1,US OF SAI.K) 
 
 of fixtures and an interest in land .jr buildinRs not, l-t!* 
 follo\ved by transfer and delivery, not, I'lO 
 within reputed ownership clause, when, l.',2, \',:\ 
 when only within iJills of Sale Act, 188i> : l:{7. V.]S 
 whether void because of attornment clause, 1 1", III 
 of after-acquired property, 1(JU-]02 
 
 MORTGAGEE— (see Mortgage) 
 
 UNDER 1:3 ELIZ. C. 5, 
 
 when a creditor, 163, 164 
 
 UNDER 27 ELIZ. C. 4, 
 
 cannot consolidate as against voluntary settlement, 2">9 
 
 a purchaser, 2U8, 219, 2:?1 
 
 equitable, a purchaser, 219 
 
 voluntary settlemeut only void against, so far as uocessary, 208,209, 213, 
 
 465, 466 
 marshalling in favour of volunteers against, 209, 46)< 
 to secure antecedent debt, when postponed, 197, 198 
 
 in favour of whom ])03tponed, 198, 199 
 secret, postponed to subsequent bona fide, 198 
 general, to secure antecedent debt, purchaser, 232 
 
 MOTHER — (see Child ; Undue Influence) 
 
 influence of, over child, when presumed, -tRS 
 
 gift to, or voluntary settlement on, by child, when voidable, 491 
 
 NATURAL LOA^E AND AFFECTION: see Meritobious CoxMOKaA- 
 
 TION. 
 
 NEW YORK, 
 
 statutes of Elizabeth re-enacted in, 2 
 law as to notice in, 196 
 
 NEW ZEALAND, 
 
 statutes of Elizabeth apply in, 3 
 
 NOMINAL CONSIDERATION— («^^ CoxsiPEnATios) 
 under civil law, 7, 8 
 expressed, real, may be proved, 266, 267 
 
 NOTICE, 
 
 book debts assignable by, 115 
 
 bouil fide purchaser without, protected, 78 
 
 to solicitor, whether enough, 78 ;i. 
 
 of trustees not notice to them, 78
 
 622 INDEX. 
 
 NOTICE— (con/muer?) 
 
 of trust to trustees ouly necessary as against tliinl pnvty, -l-M— IT)" 
 to cestuis quo trus^. 1 1:'>. l->') 
 deed to creditors, ;'>'J0, 4:'>3, 435 
 of undue iuHuence — third persons, 501, 505 
 duty of donee or his trustees to give, 452 
 UN PER l:> ELIZ. c. 5, 
 
 bona tide purchaser without, protected, 2, 45, 7<S 
 volunteers not so protected, 45, 78 
 
 in conveyance for vah;e, vendor avtl purchaser must have, to avoid 
 deed, 78, 81 
 must be of fraud itself, 70 
 of fraud in marriage settlements, 89-01 
 
 act to uphold voluntary deed by ex post facto consideration must be 
 without, 315 
 
 ■UXDEU 27 ELIZ. c. 4, 
 
 bona fide purchaser for value without, protected. 2, 188, 197 
 
 to subsequent purchaser of voluntary deed immaterial, 193, 196 
 
 doctrine of artificial, 193, 194 
 
 purchase with, whether a fraud on volunteers, 194,195 
 
 to subsec[uent purchaser of deed on meritorious consideration imma- 
 terial, 195, 196 
 
 when subsequent purchaser has collateral security, 19G 
 
 American law as to, 190 
 
 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 possession given, 120, 133, 134 
 
 NUDUM PACTUM — {see Voluxtaky Agreement) 
 not binding, 389 et seq., 404, -^05 
 
 NUNS, 
 
 gifts by, to their convents, 494, 495 
 
 OBLIGATION, 
 
 legal, a valuable consideration, 249, 276, 297, 298 
 moral, not, 215 
 
 of providing for family, 368 
 voluntary legal, enforced, and property not transferred, 398, 290 
 
 OCCUPATION 
 
 UXDER BILLS OF SALE ACTS, 
 
 what, of i^remises to prevent apparent possession, 151 
 
 is sufficient description of, 159, 160 
 onus of proving inaccuracy of, 158 
 
 OMISSION 
 
 in voluntary deed not genei-ally supplied, 391, 395 
 voluntary deed, when rectified by, of powers, 481 
 
 ONUS : see Pkoof, Burden of. 
 
 OUTLAW, 
 
 Crown stands in place of, 170 
 
 OUTLAWRY, 
 
 fraudulent, 33 
 
 ri{.'htK of Crown as creditor under. 109, 170 
 
 after making a voluntary deed, 530
 
 INDFA'. 023 
 
 PARENT— (sec. Child ;Fatiikr ; Motiikk ; r.vDri Tm i ikscb) 
 influence of, over chikl prosumoil. when, -l-St, ' 
 
 burilen of proof f.n, :ih to git'L or voluMtiiry • by chilJ. when. 
 
 4b8, I'SO ^ • . 
 
 gift to, or voluntary scttlomont on. by cliilj, wlion voiJaMi'. -IHS 
 confidential rcliitioM of, to cliil.l, I.Sl., t.SS 
 gift to, or voluntary sottlomont on. Ity cliild. when nphelJ, -188, 489 
 
 or voluntary settlement by child to pernon in loco |>arvntii. iW) 
 gift to, or voluntary settlement on, cliild by, 4;»1 
 
 PARLIAMENT, 
 
 expenses incurred as candidate for, no coii-ii'i'Taimn, - ,<. 
 deed as qualification for, when binding, 47 1. 17il 
 
 PAROL AGREEMENT 
 
 on marriage before Statute of Frauds, oTO, '.'>7\ 
 
 since, 'Ml 
 
 part performance of, 371-^74 
 
 do not support post-nuptial settlement apfainHt creditors or 
 purchasers, o75-;$82 
 
 when upheld, ;i8:> 
 
 to make ante-nuptial settlement proventoJ by fraud, 38C, 387 
 gifts of chattels by, with or without delivery, 407, UJH, 4l0 
 declaration of trust by, 404, 444 
 
 PAROL REPRESENTATION 
 
 not witliin 4th section of Statute of Frauds, 384 
 inducing marriage only enforced of existing fact, 384, SS-j 
 post-nuptial settlement to make good, when uplield, 'M'i 
 
 PARTICEPS CRIMINIS ^ 
 
 mulcted in costs, 551, 552 
 
 can set aside contract, when, 4G9 
 
 gift of property by, 469 : see Undue Influes'CF., 
 
 cannot allege the fraud, 47U 
 
 PARTICIPATION 
 
 of subsequent creditors, when settlements set aside, G-2, ol'?, o2l 
 seems contrary to words of Act, 02 
 
 analogy in old bankrupt law, 02 
 See Subsequent Ckeditok. 
 
 PARTITION ^. . . .,^ 
 
 of real estate assigned to Chancery Division. •• 
 
 PARTNERSHIP, . 
 
 action as to, when assigned to Chancery Division, uJ_ 
 
 PART PERFORMANCE_ 
 of parol agreements, 371 
 marriage is not, 372 _ ^^ 
 
 other acts may be, after marriage, 37--^/ 4 
 not by party chargeable, 374 _ 
 
 ordinary rules apply as to, after marriage, o74, 6to 
 by transfer of fund before marriage, 384 
 
 PARTY-(see Action ; Plaintief) 
 
 innocent, protected under 1;_. Lliz. c. o. 7^, OU 
 
 to fraud cannot allege it. 170 
 
 to action for .^.pecific performance, oi4
 
 G24 INDEX. 
 
 VARTY— (continued) 
 
 bankrupt settloi- not proper, to action to avoiil settlement, 522 
 grieved imder 1:! Eliz. c. "», or 27 Eliz. c. 4, who. .^Il, 542 
 not n ronmion infonnor. -M'J 
 
 PATIENT, 
 
 gift by, to doctor, 184. 49r, 
 
 PAYMENT— (s^fi Dkhti 
 
 ol' debts by third person, settlement pnndiased by. 250, 251 
 
 PECUNIARY ADVANTAGE, ^ 
 giving up, a consideration, 25G 
 
 PENAL CLAUSES : see Penalty. 
 
 PENALTY 
 
 under 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 jjersoualty, 537, 542 
 imprisonment for half-year, 537 
 
 incurred by refusal to answer interrogatories, whether, 539-541 
 jirincipal 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 b}^ Crown, when, 543 
 
 PENDENTE LITE, 
 
 voluntary conveyance, 70, 73, 75 
 conveyance for value, 99 
 
 PERSONAL CHATTELS, 
 
 Bills of Sale Acts apply to, 13G, 137 
 
 what are, under Bills of Sale Act. 1878 : 149, 150 
 
 what are not, under Bills of Sale Act, 1878 : 149, 150 
 
 to be afterwards acquired, how assigned under Bills of Sale Acts, 100-102 
 
 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— (sec Personal Chattels; Property) 
 all within 13 Eliz. c. 5 : 1.2, 17, 18 
 not within 27 Eliz. c. 4 : 1,2, 204 
 what, within Bills of Sale Act, 1878 : 13G, 149. 150 
 
 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: 520, 527 
 
 PLEA OF RELEASE, 533
 
 IM.KX. C25 
 
 POLICY — (see Lii'K l.vsi iiANn ) 
 
 settlement of. now within 1:', EH/, r ;, • .),■, 
 
 reckoned as aHHetn. ',:, 
 
 gift of, how made, I ■.:'.- 1:,7 
 
 now legally assiguahle, Ho. HI. .|:.:> „_, .j:,,;_ .,-,- 
 
 PORTIOX. 
 
 additional, after marriage. ?,(\r, 
 
 amount of. immaterial, ?\M 
 
 raising of, on land, assigned to Chancery Divisiun. :.;::: 
 
 POSSESSION, 
 
 continuance in, mark of fraud in volnntary convoyanno. fi7. 70. 113 
 
 when, in conveyance for vnluo. 9S. 1 1:» 
 dillerenco as to real and personal proixTty. lia. 115 
 ot laud not therefore fraudulent. 1 1 }. 11.', 
 such as case admits of Hiiflicea. ll.^ 
 mero fact of, as to real estate after Hale or aiier morU 
 
 T.„ sage of real estate, no eviden .f frau.l 1 IC 
 
 difference as to, alter absolute or conditional sales (,f iH^rnonal j.ropi^rty. 
 
 after absolute transfer of personal property merely primA faric pro- 
 
 sumption of fraud, nfi, 110. 1-21 ^ ^i i 
 
 want of, not always fraudulent. IIR 
 
 formerly conclusive evidence of fraud, lit). 117 
 
 ^^^"^l^^cr fraudulent when more property covered thnn nccoHsary. 
 
 after absolute conveyance, when fraudulent. 120 
 
 a question of fraud or no fraud in 
 
 each case, liil. IJ:.', 1-Jti 
 
 in conditional transfer of personal property, llC, 120, 122, 124 
 
 consistent with deed, no presumption of fraud'. 120 l'"''' 12:1 
 
 12-1., 125 . . . i- . 
 
 subsequent acts must be consistent with deed, 12:1. 12J 
 after assignment by debtor to i^refer creditor not always proof 
 of fraud. 12"i 
 to defeat execution or sequestration, 12«'> 
 mortgage with no proviso for retaining, not conclusive ovidcnoo 
 
 of fraud, 12 1 
 by trustees, after assignment to, for creditors, not necessarily 
 
 fraudulent, 125, 125 
 notoriety of, lessens presumption of fraud. 126, IXi, ]'M 
 secrecy of, increases prfsum])tion of fraud, 12l5, 127 
 only valuable as evidence of renlitj'^ of transfer. 127 
 mere formal, no use, 127 
 
 delivery of, must exclude reputed ownership, 127, 12M, 120 
 must be exclusive. 128 
 under bankruptcy Act. 188:i: 128, 1:15 
 of husband after gift to wife of property, 128, 12!> 
 only necessary for objects of dee J, 120 
 joint, question for jury, 129, l;!0. 1:!1 
 want of, after conveyance for money then paid. 1;>1, 1:12 
 after sale by sheriff, l:>2 
 
 and debtor in possession as tenant of purchaser. 133 
 when sale is notorious, i:^:l, i:*!- 
 continuance in, after secret transfer of personal property, when prevent**] 
 by Bankruptcy Act, i:i5 
 after assignment for sale consistently with do<*<l, thongh 
 secret, not fraudulent under !:> Eliz. c ^: 135 
 apparent, what is. within Bills of Sale Acts, 136, l:J7, lxA)-\l>2: $f« 
 ArPAKEM Possession. 
 
 8 S
 
 G26 INDEX. 
 
 POSSESSION— (roi!/(in(«?^7) 
 
 if at once taken, transaction not within Bills of Sale Acts, 140 
 vhether right to immediate, given or not, immaterial under Bills of 
 
 Sale Acts, 140 
 under cleorit not a purchase,. 228 
 retained after gift of land, 1-71, 472, 17 !• 
 of voluntary deed by grantor. ■[•>'•'>. loH, 159, 471-47-3 
 of deed obtained by fraud of grantee, 47^3, 474 
 
 POSSIBILITY— (sf^ Gift) 
 
 assignment of, 147, 460, 451 
 
 POST-NUPTIAL SETTLEMENT— (pec Settlement) 
 within 1:5 Eliz. c. .5 : 31 
 bill of sale is, 117 
 
 is not, if in pursuance of ante-nuptial agreement, 117 
 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, 36G, 
 
 307 
 by married woman of her property, whether now for value, 295, 296, 367 
 for value, in favour of whom, 308 
 
 founded on ante-nuptial written agreement, when for value, 368, 369 
 on parol ante-nuptial agreement before Statute of Frauds, 370, 
 
 371 
 after Statute of Frauds, 371 
 effect of Y^art performance on parol agreement followed by, 371-374 
 whether sets up parol ante-nuptial agreement as against creditors or 
 
 purchasers, 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, 33G 
 husband restrained from selling real estate in, when, 512 
 
 POWER — (see Appoixtmest ; Eevocatiox, Power 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 jwwer 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 EHz. c. l: 209 et seq. : sec Kevocation, Power of. 
 to sell and settle other lands, 212 
 to charge a certain sum, 21 1- 
 suspended by lease, 214 
 
 release of, by married woman, whether now for value, 3,00, 307 
 defective execution of, when relieved against, 393, 394, 395, 396 
 when not, 395, 3,90 
 for whom supplied, 394-, 395 
 for whom not supplied, 394, 395 
 intention of donee of, carried out, 305 
 
 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, 1873, on, 455, 456, 457
 
 INDEX. JJ27 
 
 'PO\YEn-{conHnurd) 
 
 donee of, created by self vohmtarilv. kJO 
 
 voluntary release of, 412 
 
 revo.^a_tion. absence ol", a mark of fraud in voluntary «.tUcmcnt. wh.n. 
 
 exercise of. of appointmeal by debtor, when roHtrnino,! Vll 
 ot revocation subjects personality to probati Tty Tlleu.:-".. 
 
 PEACTICE 
 
 under 1:5 Eliz.c.:.: see Action; CnEniTou; Dkeo- IxoiriRi«. «.,.., 
 
 under -27 KHz. c. !• : ..^e Actiox; Dked ; Pcm u 
 
 ANCK. 
 
 vsKR; SrRciric Pbbk)km- 
 
 ''^4Vci""^''^ settlomont: .v Act.on; JtrxTin. .vt.u.v ; r>-m r. Is- 
 
 PREFEREXCE-(.rc Fkaudulknt Pukfkuexce; Pkiokitv) 
 
 secret, a fraud on creditors, when, 10-t 
 
 of any creditor in arrangement w'itli all. when .1 fr.iud. )•• 
 
 by insolvent debtor, valid under 1:5 KJiz. i- .. 
 see Ckeditou. 
 
 PRESUMPTIVE FRAUD: see Fu.vud. 
 
 PRICE — (see Ixadequacy) 
 inadcfiuacy of, 81, 247-249 
 
 PRmCIPAL— (.9(?e Agext) 
 
 how far liable for acts of agent, -vfl 
 gifts by, to agent, ■i84, .504 
 
 PRIORITY 
 
 of creditors not affected by llj Eliz. c. .'. : 11, 12, lOu, 1(»|. ino 
 
 none under Bankruptcy Acts, 11, lul : see Fr'audI'LEXT Pbe- 
 
 FEREXCE. 
 
 of creditor, right of debtor to give, when, lOO, 1U(j. 107, 109 
 
 PRIVATE 
 
 charities, 207 
 
 covenant, 199 
 
 deed void against purchasers, 199 
 
 wrong, comj^romise of, 311 
 
 PROBATE— (.sw Duty) 
 
 Division, exclusive jurisdiction of, as to wills, 498 
 of will time to raise question of undue influence or fraud, I'.'S 
 grant of, conclusive proof of true will, 4H8 
 
 duty payable on voluntary deeds, when, 4.j9 : see Dvty ; Revocation', 
 Power of. 
 on donatio mortis causa, when, ■U')'.> 
 on propert}' transferred to self and another, wlion. 4^i9 
 on personalty subject to power of revocatiou, when. >Ar2 
 
 PRODUCTION 
 
 of documents, when enforced under statutes of Elizabeth. ."Vk). Ml 
 
 PROFITS 
 
 l^endente lite, whether decreed back. .'J29 
 
 s s 2
 
 628 INDEX. 
 
 PROMISE 
 
 as to costs a consideration. •2."')o 
 
 proceedings in bankruptcy, i-jo 
 by heir and devisee. '25;i. 2M- 
 
 to reduce pai-ol afri-eement to writing prevented b}' fraud, HSC, ^87 
 voluntary, not enforced. :>8!», 4<»2 
 
 PEOMTSSORY >'OTE, 
 
 donatio mortis causa of, 110 
 legally assignable, -110 
 gift of, llU 
 declaration of trust by, -Wl 
 
 PROOF 
 
 of considerations not mentioned in deed, 219, 266, 267 : see Considera- 
 tion' ; Evidence. 
 
 PROOF, BURDEN OF, 
 
 in voluntary settlement, when on settlor, Gi, 516 
 
 when on creditor, 515, 516, 517 
 when on subsequent creditor, 64, 516 
 in conveyance for value rests on impeacher, 84 
 in bill of 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, o96 
 of no undue influence, when on donee, ■iS'i, 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 Mareied Woman ; Wife. 
 wife's equity to settlement of what, 29, 296 : see Equity to Settlement. 
 vnTHiN 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, clioses in action formerly not, but are now, IS, 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 
 
 appoints, 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 coutiugeut, is, 18, 24 
 debt, forgiveness of, is, 21 
 leaseholds are, 24, 25 
 any disposition of, 33 
 general power of ap2)ointment by deed, 'M 
 
 by married woman not, 31, 33 
 term held as administrator, not, 24 
 estate tail resettled, not, 24
 
 INDEX. 
 
 029 
 
 PROPERTY-(c-nu/m»r,?) 
 
 AviTHiN 1^{ r.Liz. r. i—(cnn{lnuc(l) 
 pay of officers, not, '25 
 ofUce of trust, uot, 'in 
 rcm;nmug and actually available must be sufilcicnt for dcbU. 11. 12. V,, 
 
 value of unsettled, how and vvl„.„ estimated. W. 57. 50 CO 
 settlement whirh withdraws none, -ood. :,o ),r, 
 nuH uc.ntly aliened, assets for crediturH. 07 n m 
 Iruudulcnt yrautee of, executor de sou tort (■<•>' 
 WITHIN 27 ELIZ. c. J., 
 
 real property and interests in land, 2, 7 i:? "..■• •■,,• 
 interests in land legal or c<juitablf. 2U:{' ' " "' " 
 
 corporeal or incorporeal, 20o 
 chattels real, 2, r,, i;;, -JO:;. 2U I- 
 leaseholds, 201!, 25(J et scq. 
 advowsons, 20;> 
 rent-charges, 2Uo 
 timber, 20:3 
 
 minerals, whether, 203 
 copyhold, 203, 20t 
 personal property not, 2. 7, 201. 
 money charged on land and secured by term, not, 20t 
 
 WITHIN HILLS OF SALE ACTS. 
 
 personal chattels only, 1:!.:,, l;!(j et se(i.. 1 11), loO : sec Bills of S\ik 
 after-acquired personal chattels, 1(30-102 : sec An:EU-AC<4tiiitu rKortmv. 
 
 PROSTITUTION, 
 
 contracts founded on, void, 161 
 
 PROVISO— (sec Notice ; Purchaser) 
 
 in favour of bona fide purchaser without notice under 13 EUz. c. o : 2, 78 
 
 et sc<j. 
 under 27 Eliz. c. 4: 2, 
 188, U»7 
 PUBLIC 
 
 wrongs, compromise of, 311 
 
 policy, contracts void on ground of, 160 
 
 PURCHASE— (see Purchase-money ; Purchaser) 
 
 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. 2iX 21 
 
 for money paid, when void for inadequacy of price, 217, 21-S 
 
 WITHIN 27 ELI/,, c. 4, 
 
 in names of third persons solely or jointly with self, whether, 2'X'-2'*2 
 
 effect of lapse of time on, 202 
 
 colourable, not good, 218 
 
 judgment is not a, 220 
 
 for money paid, when void for inadequacy of price, 217. 2 l*^ 
 
 PURCHASE-MONEY 
 
 UNDER 13 ELIZ. C. 5, 
 
 on sale of settled property, 22 
 fraudulently settled by vendor, 7'.', oo'i 
 may not be given so as to defraud creditors, 8(.», 87 
 UNDER 27 ELIZ. f. 4, 
 
 when settlement avoided, formerly given to volunteers, when, 207, -kW 
 
 now paid to vendor, 207. 2<>8 
 persons interested under settlement have no equity ngaiust, 208, 460 
 
 must bo really paid by purchaser or mortgagee, 218
 
 G30 INDEX. 
 
 PURCHASER— (scr Coxsideratiox Ex Tost Facto ; ruiiciiASE) 
 under civil law, 8 
 
 for value vrithout notice protected under Bankruptcy Act, 1883 : ij 
 meaning of, under Bankruptcy Acts, lo 
 
 for value without notice not aflected by undue influence, 504, 505 
 who is. under marriage settlement, o'M, oo?, o-i2 : sec Coxsidekatiox of 
 
 Makiuage. 
 under 13 eliz. c, 5, 
 for value protected if bona fide and without notice, 78, 7?, SO : sec CoK- 
 
 siDERATiox, Valuable. 
 must have notice of fraud to avoid settlement, 79 
 for third parties, when protected, 81, 82 
 under family arrangement 2n'otected, 82. 83 
 may become so by ex post facto considei'ation, 83, 81', 315 et seq^. : see 
 
 Consideration Ex Post Facto. 
 and persons claiming under him only jirotected, 86 
 from voluntary grantee or grantor, when protected, 325, 826 
 
 UNDER 27 ELIZ. C. 4, 
 
 fraud against, not complete till second conveyance, 14, 15, 32I' 
 
 all voluntary conve3'ances void against subsequent, 11, 13, 187, 191. 192, 
 
 217, 214 
 voluntary conveyance, only void against, 208, 209, 4C3, 464,465, 466, 529 
 trusts of voluntary deed subsist subject to rights of, 465, 46H, 529 
 conveyances for value and bona fide without notice, protected against, 2, 
 
 188, 197 
 doctrine as to subsequent, well settled, 188, 190, 191, VJo 
 not protected if consideration grossly inadequate, 183, 189 
 fraud against subsec^ueut, 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, ly;!, 195. 196 
 fraud against subsequent, merely constructive, 187. 193, 191 
 Avith collateral security against voluntary deed, 196 
 conveyance for value voici against subsequent, if actually fraudulent, 197 
 when constructively fraudulent, li'7, 198, 19H 
 voluntary secret deeds void against subsequent, l!'9 
 
 conveyance of reversion in fee, whether always void against 
 subsecpient, 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, 23r> 
 a mortgagee legal or ec|uitablc or by deposit of deeds is, 219 
 owner of ecpiitable estate is, 219 
 trustee, when, 220 
 release of adverse claims, 22U 
 lessee, when, 220, 221 
 surety, when, 221 
 assignee of lease, 221 
 
 not by ex jiost facto consideration, 221, 222 
 mining agreement, 220 
 
 marriage consideration makes husband, wife, and issue, 222, 223 
 husband, jure mariti, not, 22:'> 
 judgment creditor not, 22 !■, 227 
 in America judgment creditor not a, 229 
 trustees for creditors, whether, 229, 230 
 creditor taking sjjccific mortgage is a. 231, 2:!2 
 assignee by general words not, 231, 233, 234 
 in bankruptcy, 233, 234
 
 INDKX. G31 
 
 V\JRGRAB'ER—(cnntinvc(l) 
 true test of who is, 2:55 
 
 imnnitant by gononil charjijo not a, 'J:!.'., -J:!'', 
 trustee of voluntary deed, wlietlicr, 'S-'<i>, '2',>7 
 
 from i)ersou other tliau voluntary Hettlor, wlullirr a, 207, SW 239 211 
 from heir of settlor not a, 'J:}'.), 2 lU, "J H 
 from devisee of settlor not a, •2'\7, 2111. 21 1 
 
 from grantee of second voluntary settlenn nl noi :i, j.,7, j,v> jil 
 in America purchaser from i)erson not settlor not n, '2U 
 contract for sale by settlor enforced against heir or duvJBCC by, JH 
 from ])erson virtually settlor a, 2 I2 
 
 of diiiereut interests in same land from diflercnt |-MTKonH a, 212 
 consideration against, what sidlices, 2H, 217, 2|k, Jli> 
 separation deed, when good against, oOl et hcij. : mw. iiv.\'KH\ruiS Dr.KP. 
 rights of two, of same property from two voluntary gruntoeB holding from 
 same grantor, 327, -52^, ;;2!> 
 from voluntary grantee and of a voluntary grai;' ame 
 
 grantor, ;»27. . . 
 Hubseijuont from &aujt jfraO' 
 tor, ;32y. :52*i 
 deed voidable against, good for all other purposes, olii, ^17, iJ2«5, ^27, -I6U, 
 
 464s 4(55 
 sale enforced for, 512, 513 
 
 canuot enforce contract for sale of leaseholds, 513 
 can recover back deposit, when, 512 
 can enforce sale against ])urchascr from him, •M"-, "d J 
 plaintifl creditor and, 527 
 deed declared voiel only against, 520 
 cannot have deed cancelled, 52!) 
 deed partly good against, 5oi, 535 
 
 QUALIFICATION 
 
 to shoot game, deed for, when binding and when not, 171, 1<2 
 as sheriff, deed to prevent, 471 
 for Parliament, deed for, 471, 172 
 
 REALITY OF TRANSFER, 111, 11:"., 117, 127, 178,271: «oo Thaxsh r.. 
 
 REAL PROPERTY, 2,5,202,203: sec Property. 
 within 13 EHz. c. 5 : 1, 2, 17 
 within 27 Eliz. c. 4 : 1, 2, 202 
 
 RECEIPT 
 
 n 
 ley 
 
 for purchase-money a bill of sale, 147, 310, 317 
 for money, when a declaration of trust, 441 
 
 RECITAL 
 
 in deed evidence against parties, 3,6 . , . ^ , „., 
 
 in post-nuptial settlement of antc-uuptial written atTrcomcnt, .. .s 
 ' ^ i.arol airrcemcul, ^>^-, otHi 
 
 RECONVEYANCE, 
 
 when ordered, 530, 531 
 
 RECOVERY 
 
 not set aside, 530
 
 G32 INI)EX. 
 
 RECTIFICATION, 
 
 not, of voluntary deed in accordance with agreement, o91 
 
 of trusts, when mistake proved, -Wt, iy2 
 
 of voluntary settlement, not against settlor, 481 
 
 on ground of mistake, when, 4-81, 482 
 of part of voluntary settlement as against settlor only b}' consent, 481 
 of voluntary settlement, not, by inserting jjower of revocation, -i82 
 when, after death of settlor, 182 
 what evidence necessary for, 182 
 what proceedings to be taken for, 482 
 of deed by order of Court, without conveyance, 482 
 assigned to Chancery Division, -joo 
 
 EEFUSAL TO ANSWER 
 
 interrogatories under statutes of Elizabeth, 539, 540 
 
 REGISTRATION— (6L'c Bills or Sale) 
 
 of bill of sale, when necessary under Act 1878 : V-]t\ 153 
 
 under Act 1882 : 138, 154 
 not of transfer or assignment of registered bill of sale, 155 
 not of sub-mortgage of registered bill of sale, when, 1 55 
 on transfer of bill of sale and farther advance, whether, 155 
 renewal of, under Bills of Sale Act, 1878 : 165 
 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 1882 : 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, JJOl 
 
 defective execution of power sujiplied for what, and when, 394, 395 
 
 RELEASE— (see Disclaimer) 
 
 of debts within 13 Eliz. c. 5 : 33 
 
 creditors when notJjarred by, 184, 185 
 
 of adverse claims within 27 Eliz. c. 4 : 220 
 
 of dower by wife, formerly valuable consideration, 283 
 
 whether now valualjle consideration, 283 
 of marital rights, formerly valuable consideration, 306 
 
 whether now voluntary, 306 
 of power by married woman, whether now voluntary, 366, odT 
 
 is a covenant not to exercise power, 412 
 of claim, when pleaded, 533 
 
 RELKJION, 
 
 minister of, gift to, 495 : sec Undue LvrLVEXCE.
 
 1M>KX. 
 
 633 
 
 REMAINDERMEN, 
 
 bargalus of, with toniuits for lilV, -J I un ■>,„] 
 bargains of, in tail, with tenant fur life. :;i",. itki, 3(i2, 3«W 
 third prrsou, ;;02, 'M'6 
 
 REMARRIAGK, 
 
 settlement on, after divorce, :!H 
 
 of widow, settlement by, on ill.;-ltinnt. chiidr...., ..(•. .-t Hoq. 
 ,, . , , , childnMi or inHii-. iUH et k.-.i. 
 
 ot widower, settlement by. on ille-itiMiate cliildr.Mj. X.l Xj:'. 
 ■ovy-r children or issue, ,io2, \io.i 
 
 continuance of, a consideration. -JO:'. 
 
 lessee at, within 'J7 i']liz. c. 4: -217, -J-JO 
 
 liability for, supports assignment ot'reaseholds u.iaer 27 Eiiz c. 1 
 
 RErRESEXTATION 
 
 to induce marriage, :iiii 
 
 ytatute of Frauds, fourth section, does not apply to .^si 
 
 parol, followed by post-nuj.tial settlement. oHl, :;h.v';{Si; 
 
 enforced only if of existing fact, i'.S-J 
 in wi-iting followed by post-nuptial settlement, 386 
 whether, must be to one of persons to be married, :;8(J 
 
 REPRESENTATIVE OF CREDrrORS-(fice Cheditoh : Tuisin) 
 
 deeds void against, 170, 171 
 
 REPUTED OWNERSHIP— (sec Possession') 
 delivery of possession must exclude, 127, 128 
 rule as to noii-possessiun same as, 128 
 what is, under Uankruptcy Act, 188:! : 128 
 
 gift by husband to wife not good against his creditor.; if in Iuh, 128, 12'J 
 does not apply if possession consistent with title, 12L> 
 applies only if bankrupt is in sole possession as sole reputed owucr, 129 
 aijplies, when, under Acts 1869, 1883 : l:j.j 
 applied to ail bankrupts before Act 18(J1 : loo n. 
 not under Bills of Sale Act. 1878: 102, loo 
 under Bills of Sale Act, \xx-2: ].>; 
 unregistered bill of sale within, 1.>I 
 
 RESTITUTION, 
 
 when marriage settlement set aside, iinpossil)le, :'.;!o-o;;7 
 of conjugal rights, covenant not to sue for, oUli, oU6 
 injunction against, oFl 
 
 RESULTING TRUST— (sec Tkust) 
 
 avoids deed under lo Ehz. c. 5 : 11, 9(3, 07,98 
 in trusts for creditors, avoids deed, when, :!2, 72, HJ '<:), 97, '^f< 
 does not avoid deed, when, ;!2, h7-^'.^ 'JS 
 settlement on particular marriage, when for aettlnr, 177. l7^ 
 in voluntary settlement for settlor, when, -WO, i'-il 
 
 REVERSION, 
 
 sale of, inadequacy of price as to, 21ti 
 gift of, 402, 427 : sec Gift. 
 
 equitable, 41«, 449, ioO, 4ol 
 
 REVOCABLE TRUSTS, 
 
 for creditors originally voluntary, may become for value, o29, K>o ct scq , 
 
 ^63
 
 G34 . INDEX. 
 
 REVOCATION, POWER OF- {sec Power) 
 
 IN VOLUNTARY SETTLEMENT, 
 
 if not inserted, settlement not rectified, when, 481, 482 
 impeached for absence of, by parties adverse to settlor, 498, 400 
 
 by settlor and parties claiming under him, 
 498. 199 
 absence of. formerly great mark of undue inilucuco and fraud, 19G, 497, 
 499 
 now merel}'^ a circumstance in case, 499, 500 
 may be evidence of undue influence, bOO, 501 
 
 rNDER 13 ELIZ. C. 5, 
 
 voluntary conveyance with, when, 'M, 32 
 
 in voluntary couve3'ance, 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, 21U 
 exercisable at future date, 2lL», 211 
 
 withiu fixed period, 210, 211 
 
 only by will, 212 
 extiugiiished, 211 
 with assent, 211. 212 
 
 power to sell and settle other land, 212. 213 
 on payment of trilling sums, 213 
 fraudulent against purchasers only, 213, 214 
 power to charge sum certain, 21 !• 
 BuUuck V. Thome, 211-210 
 suspended by lease, 214 
 
 SALE— (sec SrEciFic Performance) 
 
 for full value, creditoi's not injured by, 38, 80, 81 : see Bills or Sale. 
 
 to relation, 50, 57, 81 
 
 possession retained after, 113 et se(|. : see Possession. 
 
 intended to be a mortgage, 468 
 
 voluntary settlement of property under 27 Eliz. c. 4, defeated b}', 208, 
 
 209, 463, 466 
 of land by voluntary settlor not enforced, 315, 511, 512 
 
 enforced for jmrchaser, 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 dillercnt persons, 241 
 of land by voluntary grantee, when good, 325 
 
 by second voluntar}^ 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 I'cgi.-iti'ation in England, 149 
 inhibition in, against wife after separation does not prevent deed being 
 
 voluntary, 306 
 Betllcmcnt made in England on re-celebration of marriage in, voluiitar}^, 
 
 223, 367, 368
 
 INDEX. 035 
 
 SECOND S1•;TT^.E^^EXT 
 
 of same I'liud croulfs no debt, U^l 
 
 SECRECY 
 
 a badge of fraud, !'•!"', 118 ti., 1-Jt;, 1J7 
 
 SECRET DEED 
 
 void against pm-chascrs, ]:•:• 
 
 good against subsoqiient voluntary Koltlemont. J-m 
 
 for special purpose only, when set aside, 471, »7J 
 
 SECURITY 
 
 for debt is on valuable considcratiou, '.'7, ll<i, -^./J 
 
 got by undue inllucnce, hOi 
 
 for arrears of voluntary debt, '2'>t\ 
 
 gift of, 110 
 
 SELF-CRTMIXATIOX 
 
 refusal to answer interrogatories tending to, ooO, .'>M) 
 
 SEPARATE ESTATE: sec Maruikd Woman. 
 
 SEPARATE PROPERTY : sco Gift, When Complete; Maubiei) Womax; 
 
 PosT-xurxiAL Settlement; Propeiity ; Wike. 
 
 SEPARATION DEED— (src Post-nuptial Settlement) 
 
 between husband and wife a post-nuptial deed and voIunUiry. 301, 312 
 not against public policy, )!01, •!12 
 may be for value as against creditors or pnrcliaRcrs, IJOl 
 while merely an agreement, not enforced. :!Ul. 'M2 
 covenant of indemnity in. liy trustees or third j>crH(>n. ajj.i 
 
 debts, valuable consideration !• . 
 :;12 
 of value to husband, :]02 
 by wife alone in. when enforced by her, :>02, 'W> 
 trustee for wife not now necessary party in covenant in, •H)'2 
 covenant of indemnity, by wife alone, against licr debts, whether now 
 
 for value, 303, 301, 3u:., 311, 
 
 against her debts and cla! 
 alimony ia, whether u- 
 value, 30i 
 
 conditional covenant in, for value, 301 
 agreement for, with proper clauses, enforced, oOi 
 covenant ibr sup]x)rt of children in, ;!U I-, 'Mo 
 provision to reimburse husband in, when vuluntarv 
 after inhibition of Scotch Court, when voluntary. 
 
 release by husband of marital rights in future-acquire I propiriy oi who, 
 formerly for value, oOH 
 of rights in wife's property, whether r. - ' -- i- • -; 
 covenant for compromise of suit for divorce in, for vuh;. 
 contract not to sue for restitution of conjugal riglits by j — ■ 
 
 in, o08, oO'J ., , , 1 
 
 contract by married woman in, of no value if she lia- tli. n n.. >. • 
 
 property, oU-^, ;l"'' 
 theory of, what, oW.) , • i 
 
 wife's relinquishing claim to alimony, whether tor value as oga»u»l 
 
 creditors, o09, -MO . , .-..•, 
 
 reciprocal covenant by husband and wife in. not to «ue for raiUtuUoii of 
 
 conjugal rights, :'>10 
 compromises of indictments in, wlieu valid, 310, oil
 
 6'SG INDEX. 
 
 SEPARATIOX DEED— (continued) 
 
 collusion Ijt'tweon Imsband and wife in, 311, 312 
 
 after death of husband and wife, when not supported as voluntary, ol2 
 
 trusts of, executed, carried out. when, '-il-l 
 
 from mistress voluntary, ■il'I, 313 
 
 execution of, when a consideration, 313 
 
 avoided by re-cohabitation, 313 
 
 whether also post-nuptial, 313, 31 1 
 
 covenant in, to live apart, enforced, 314 
 
 SEQUESTRATIOX, 
 
 voluntary conveyance to defeat, 70 n., 72, 73, 100 n. 
 
 of choses in action, 11* n. 
 
 writ of, when not defeated, 100 
 
 conveyance for value to defeat, 72, 73, 85 
 
 SETTLEMENT — (.see Ckeditok; Deed; Purchaser; Subsequent Cre- 
 uituk) 
 of what property within 13 Eliz. c. 5 : 17-23 
 
 27 Eliz. c. i : 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 straut(er t,'ood against her ante-nuptial debts, 30 
 what kinds of, voluntary, witliiu I'-) Eliz. c. 5 : 31, 32 
 
 for value, within 13 Eliz. c. 5: 32 
 every kind of, within 27 Eliz. c. 1 : 202 
 
 by person indebted in pursuance of agreement, whether void, 36 
 voluntary, when good against creditors, 30 et seq., 61 et seq. : see 
 
 Voluntary Conveyance. 
 purchasers, 187 et seq. 
 for value, when good, 78 et seq. : see Conveyance for Value. 
 post-nujDtial, registration of, under Bills of Sale Acts, 147, 3-lU: sec Bill 
 or Sale. 
 when voluntary, 261 etseq., 295, 340, 365 et seq. 
 when for value, 223, 224, 295, 296, 340, 365 et seep : see PosT- 
 NUi'TiAL Settlement. 
 purchased by third person, 82, 250, 251, 365 
 
 on marriage, how different from others, 260, 261, 335 et seq. : see Mar- 
 riage Settlement. 
 limitations in marriage, 342 et seq. : see Limitations i.n Marriage 
 
 Settlement. 
 family, when voluntary, 34, 261 et seq.: see Family Arrangement; 
 
 Family Settlement. 
 of estates tail, 21, 263-266 
 of goods on wife for separate trade, 339, 340 
 on remarriage after divoi'ce, 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, 4ul 
 of land not existing, 4Ul 
 
 voluntary, when complete, lul et seq. : sec Gn'T, When Complete. 
 in contemplation of j^articular marriage, not revoked, when, 477, 478 
 consideration of marriage attaches to which of two, 477, 478 
 rectification of, 481, 482 : see Rectutcation. 
 
 when voidable for undue influence, 483 et seq. : see Undue Ineluence. 
 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, 4.'>8, 459, 534, 535 
 impeached by cross bill, 527
 
 IM.KX. C37 
 
 SETTLOR— (flee Voluntahy Convrvaxck) 
 
 on death or bankruptcy of. Hottle.nont un.ler U TAh. c. 5. ftvoiJo<l 10 -v. 
 
 sale by person other t'han the. iIooh not avoi.l v..lnnlary tl«Hl '^Z? Ml 
 voWary. retains no estat. to co:;vey t., any ono Uuia^^utr.m. 
 
 death of, after contract for sale, 2 H 
 
 when virtnally the same jierson as the vendor, -J I' 
 
 death of, while deed in preparation, \o:, 
 
 complete gift by, nnaliected by cliango of niin.l ..f, .^1.', 
 
 sottlement by, when voidable for undue inlluencc, m ot m.. to 
 
 voluntary settlement retained or destroyed by, -1^8. 4,59, 17:, 
 
 , . ^ ^ ffom what time Innding on, 4o8, 17' 
 
 not assisted to defeat his own gift, l-?*;, .Ml 
 not restrained from selling un<!er 27 Eliz. c. I : Ml. .MJ 
 sale of land enforced against voluntary, -M'J 
 sale of leaseholds not enforced against voluntary, .M:j 
 burden of proof of solvency on, when, rd, .Olti 
 
 SHARES— (see Stock) 
 
 are goods and chattels within 13 Eliz. c ■>■ 18 ^H 
 gifts of. 111, 413 : .see Gift. ' " 
 
 settlement of, set aside without cliarging order, ."iO? 
 
 SHERIFF, 
 
 possession of debtor after sale by. 1.32. 13 !■ 
 executing process is a creditor, 171-1«1 
 fraudulent deeds void against, 171 
 
 execution void against. 171 
 liability of, to execute writs in order received nnles.q fraudul.-nt. 177 
 how to decide whether prior deed or execution fraudulent, 17S 
 powers of, under Interpleader Act, 17!t 
 
 under Common Law Procedure Act. 18(j0: 17;», 180 
 must prove he was acting for a creditor, 173, 17 1 
 evidence of fraud in prior judgments and executions. 171- 
 bound to seize and sell after fraudulent execution. 17<l, 178 
 
 although he has sold after notice, 1 70-178 
 
 right of, to indemnit3% when, 177 
 bound by acts of his officers. 180 
 appointed after fraudulent execution, 180 
 gift to avoid being quahtied as, -l^l 
 
 SISTER, 
 
 gifts to and by, -I'.i.j 
 
 marriage with deceased wife's, settlement on, vuluntarv, 177 
 
 SOLICITOR— (see Client; Undue Influence) 
 
 letter to, and transfer, when declaration of trust, I J J 
 
 instructions to carry out gift not a declaration of tru.st, 113 
 
 confidential relation of, to client, ■IStJ-J.SS, 41'3 
 
 undue iulluonce of, over client, when assumed, 484, '180—188 
 
 cannot take gift from client wliile such, •ll'3 
 
 gift to, or voluntary settlement on, by client, when npljcM, 403 
 
 SOLVENCY— (see Insolvency) 
 
 when settlor must prove, at time of scttliMiu^nt, 11, .".J. .".M 
 of settlor, how estimated, 55 et seq. 
 
 SPAIN, 
 
 princii>les of 13 Eliz. c. 5, adopted in, !<•
 
 638 INDEX. 
 
 SPECIAL PURPOSE, 
 
 deed executed for, -171, 47"J 
 
 SPECIALTY DEBT 
 
 implies consideration, 390 
 
 SPECIFIC 
 
 iucumbrauoers, how different from general creditors, IGO, IGI, 230 
 mortgage to creditors a sale, 231 
 
 SPECIFIC PERFOR]\[ANCE, 
 
 question of consideration in cases of, 261, 272 
 in cases of family arrangements, 272 et seq. 
 
 of voluntary agreement, contract, covenant, not enforced, 201, 389, 390 
 of agreement lor value enforced, 390 
 
 of contract to sell land not generally enforced for voluntary vendor, 31. "i, 
 511, 512 
 enforced for vendor only if willing purchaser, 
 
 511, 512 
 enforced for ^■)urchasei', 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 
 l)arties to action for, 514 
 order for, 529 
 of contracts assigned to Chancery Division, 533 
 
 SPIRITUAL ASCENDANCY, 
 gift obtained by, 495 
 See UxDUE Influence. 
 
 STATUTE OF FRAUDS. 
 
 representation not within fourth section of. SSI- 
 agreement in consideration of marriage within, 371, 375 et seq. 
 whether excluded by jjart performance of parol agreement, 371 et seq. 
 may not lie set up to cover fraud, 470 
 trusts -when proved by writing under, 404, 443 
 who can declare trust under, 104, 443 
 
 STOCK— (see Shakes) 
 
 formerly was not, but now is, within 13 Eliz. c. 5: 18, 23 
 
 on death or bankruptcy of settlor brought within 13 Eliz. c. 5 : 19, 23 
 
 gift of, how made, 411, 413 : see Gift. 
 
 SUBSEQUENT 
 
 considerations for voluntary deeds, 315 et seq. : see Coxsideration Ex 
 
 Post Facto. 
 dispositions of settled property l)v grantor under 27 Eliz, c, 4 : 187, 475, 
 47G 
 if voluntary, invalid, 475 
 
 of property not within 27 Eliz. c. 4. for value or voluntary, 
 475, 47<; 
 avoided by creating voluntary debts, 47() 
 
 SUBSEQUENT CREDITOR— (see Action) 
 voluntary settlement good against, 
 
 if by person not indebted and not fraudulent, 50, 75, .520 
 if by non-trader owing no deljt, of all his property, 71, 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, 08, 
 521
 
 INDKX. (J3'J 
 
 SUBSEQUENT CREDITOR-(''^*"n«"aO 
 
 settlement for value good aKuiust. if no dcLt thou . • | 
 
 void agamst, //• so aKainat an exUliiiK' l-Ci, .',1C- 
 
 on ground of intention to defcnt, VA, «4H w«^j . 
 
 voluntary settlement void a<,'ainst— 
 
 if by pev«on indt-l.tcd, a^d one of oriK'inai . ,.„.i.,rH mm, unjaM. ...; 
 
 '^ iinpakl'?;;! V;T' v'T''"^ insolvent, though no debt Ihon duo .Ull 
 
 '^ d^ OtrVn^'^^^'^'^ ''^''"^ ^'^ ^'■'^'^' *"'^ °^ "" *"' ^""^ °' property, 
 
 if fraudulent intent proved, indobtcduoss immateriu!. 'C H-. 72 ?:. 
 
 52U, oiil 
 
 if made pendente lite, 71. '.lil 
 suLstitutiou of for existin- does not aifect validity of HeUlfa.ci,L6i.i^ 
 doubttul, whether debt accrued till after settk-meut, (L' 
 all let in pro rata with existing, when settluni.'nt set iih' ' 
 . analogous case in bank 1 
 
 participation of, seems contrary to words of the Ktntnto. <.| 
 action by, on ground of indebtedness, must not defeat prior crcditora 
 521 ' 
 
 inquiries, when allowed as to settlor's debts, .MO, .M7 
 
 subsequent indebtedness not evidence of fraudulent intcntiuu i wi • 
 64 • • •. 
 
 voluntary deeds, onus prol^andi, when on, (il, .',10 
 
 when on settlor, CA, '>16 
 " creditors and others,'"' 64, 65, 16:? .- see Crkditor. 
 marks of fraud against, in voluntary deeds, 66-74 
 generality of gift, tiii 
 continuance in possession after gift, 67 
 gift made pendente lite, 7"', 71, 71, 7'» 
 to defeat execution. 72 
 
 sequestration. 72 
 large contingent liability, 7:1 
 debt soon to fall due. 7;$, 74 
 powers of revocation, 76; see Revocation-, Pijwkii or. 
 fraud against, must be express, 67, 7;J-7-"') 
 consideration of natural love no good against, 76, 77 
 costs of, 546 
 
 SUBSEQUENT PURCHASER, 217 et seq. : see Coxsider.\tiox Ex Post 
 
 Facto; Pukchashr. 
 sale of laud enforced for. when. 512, 51:5 
 
 only enforced against, if willing, 5)1 
 sale of leaseholds not enforced for, 51 :» 
 
 can enforce sale of land against purchaser from hiin, 51:1,514 
 can recover deposit from voluntary vend.or, 512 
 
 SUBSTITUTION 
 
 of fresli liabilities for debts duo at date of voluntary settlement, CI, 530 
 
 civil law the same, 61 n. 
 
 SUMMONS, 
 
 ci'editor may impeach settlement in admini^t: '2'' 
 
 settlement whether impeached by creditor by 
 
 by creditor on Ijehalf of self and all other crL-uii.,., ,.. -u,' i. .'.Jo 
 
 SURETY 
 
 a debtor within 1:j Eliz. c. 5 : 50 
 
 creditor on bond for indemnity within lo F^liz. c. 5: 166 
 
 when a purchaser within 27 Eliz. c. •! : 221
 
 G40 INDEX. 
 
 SURPLUS — {see Amount ; Assets) 
 
 settlement good wbeu ample, then avallaLle to pay debts, 49, 50 
 proceeds of sale of land mortgaged aud settled subject to settlement, 
 
 4G7 
 after satisfaction of creditors subject to settlement, G8, 464, r»27, 528, 530 
 purchasers subject to settlement, 208, 209, 465, 466 
 529 
 
 SURPRISE, 
 
 gifts or voluntary settlements void for, 462, -180, 496 : see Undue 
 
 IXFLVENCE. 
 
 SUI JURIS, 
 
 gift or volui'tary settlement by persons not, 4S3 
 
 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, whethernow. 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 27 Eliz. c. 4 : 203 
 
 TIME — {nee Acquikscexc e; Delay ; Laches) 
 effect of lapse of, under 13 Ebz. c. 5: 184 
 under 27 Eliz. c. 4 : 202 
 bars remedy for undue influence, when. 507. 509 
 
 TRADER, 
 
 settlement of whole or bulk of property by, void, 51, 52, 53, 65, 75, 521 
 settlement by. void even if no debt due at its date still unpaid, 53. 65, 
 
 66, 75. .^.21 
 Fettlement ])y. void even if very small compared with amount of Inisiness, 
 
 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, generally irrevocable, 433 
 
 to trustees by debtor, when revocable, 433 ct scq. : see 
 Cju'.ditors' Deeds. 
 of voluntary gift of stock, when not ordered, 432, 433 
 imperfect legal, not upheld as a trust, 406, 430 : see Teust.
 
 INDEX. (541 
 
 TRUST, 
 
 secret, a bailgo of fraud, 09 
 
 resultiiijT. when avuids deed under 1.', Kliz. c. :>: iJJ h7 ,,, 
 
 IIesulting Tuust. ' "* 
 
 in voluntary deeds, wlien resulting for Bcltlor, -130, -131 
 of separation deed executed, when carried out, ;U2 
 comijletc, enforced by Court, loii ct hcii.: g,;-. (JlKT, WllRV CoxrLETL 
 voluntary, subsists subject to rights of creditors or purclijuwrH. 461 465, 
 
 b'28: SIT. Suiu-ixs. 
 of settlement on particular marriage, when not revoked. 177 
 -, wlien revoked, I7<j, 477, 478 
 
 all property subject to voluntary, 1-:N, lil'.t 
 declaration of, may bo voluntary, :!'J7, I'Jo-PC. 
 to take effect on marriage, when binding, l/ij, 177 
 declaration of, kept by settlor and lost, power of revocation not inferred 
 
 in, .Mil, 5U-2 
 exccutiou of, assigned to Chancery Division, h'.V.l 
 declaration of, what, iO'S, 10 1-, 10.:), llo, lU.!, WO, lU): sco DEtuaATiox 
 
 OF Trust. 
 imperfect, not uplicld as gilt, when, lotj, HI, \\'>, 117 J.-JU. liiO 
 whether transferee takes beuelicially or subject to, IMl-WJ 
 lor creditors, when revocable, when not, l:j:j et acq.: »''o Ckkmitmrs' 
 
 Deeds. 
 when revocable for other persons, -iSti, -R!? 
 
 of lands, tenements, and hereditaments declared l)y writing, J" I, 1 1 ; 
 of personal property may be declared by jiarol, lOl, in- 
 valid, not commimicated to trustees, l-jl-l-jo 
 
 cestuis que trust, Ho, i'jo 
 addition to original, 452, -ioiJ 
 
 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 /'. 
 
 must not leave estate outstanding on personal security, when, 51 ti. 
 
 of creditors' deeds, when purchaser, '22i*, 2:50 
 
 purchasing trust property, whether a purchaser, 2:Jt3, 2o7 
 
 mere, cannot sell, 237 
 
 for creditors, assignments to, when withiu 13 Eliz. c. 5 : 87-^9, 07, J^8 
 
 of separation deed, covenant of indemnity by, ai^ainst wifo'a debts, 301 
 
 refusing to sue on covenant, wife may, when, ;!'.'3 
 
 covenant by, for wife, in separation deed not now necousary. 303 
 
 in separation deed to support wife's children, II'M, 3<"5 
 contract of trustee in separation eteed.what, 30!*: gcc SKr.viuTiox Ueed. 
 in baidcruptcy not purchaser for value, 233, 234 
 assi"-nments to, for creditors, 133 et scq., 403 : sec Creditobs' Deed.^. 
 " for volunteers, 406 et seq., 4-i6 et acq.: $tc Girr, W'uvi 
 
 CO-MPLETE. 
 
 breaches of trust by, of voluntary d^ed. 121, 425, 420, 4k5. 4*-' 
 gifts from cestui que trust to, when upheld, •!**, 4l»2 
 undue influence of, over cestui (juc trust, when iiresunie !. '^ •■- 
 
 of bankrupt settlor should bring actiiwi to avoi.l lu.s s.-tt. 
 
 should now bring action to a-. •! ^..-nicnt, 
 
 where. 522-524 
 title of, higher than of bankrupt settlor, 523 
 of voluntary settlement directed to convey m order for specinc ixrrform- 
 
 ance, 52t) . . _ , 
 
 intention to become, how shewn, 401, 41.»-4h : >ce Lstentiox. 
 acceptance of trust by, not necessary, 4-. 2. 4..3 
 notice of trust to, when necessary, 4^1-4-^3 
 costs of, 545 et seq. : see Costs. 
 
 T T
 
 G42 INDEX. 
 
 UNDERVALUE : sec Ixadequacy. 
 
 UNDUE INFLUENCE— (6W Confidential Relation) 
 gift or settlement obtainecl by, set aside, i80 et seq. 
 when presume J, 1-83, 484, 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 l:)y donor, 184, 488 
 marks of. 496, 497 
 
 will set aside wholly or in part on ground of, 490 
 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, oUi: hoc Revocation, 
 
 Power of. 
 marriage settlement, how affected by, oU2 
 who can avoid deed for. 481. 5U2, olio 
 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 ct 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, 1:J7 
 proof of fraud, 178 
 
 UNREGISTERED DEED— (.•jce Bills of Sale) 
 
 under Bills of Sale Act, 1854, void as against whom, 136 
 
 Act 1878, void as against whom, 137, 15U, 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 
 
 VALlDi'l'Y OF GIFT, 
 
 how far ail'ectcd by fraud on third parties, 463, 464, 470 
 by illegality in creation, 468 
 by retainer, 471-475 
 
 by subse(pient dispositions of the property, 475, 476 
 by fraud between the parties, i8U 
 not communicated to grantee, 472, 473 
 
 to cestuis que trust, 143, 451, 453 
 
 VALUABLE CONSIDERATION— (wc Conveyance for Value; Sale) 
 what is, 243 et Req. : nee Consideeation, Valuable. 
 between husband and wife. 281 et seq. : sec Consiberatiun Between 
 
 liuSBANU AND WiFK. 
 
 arising ex post facto, 315 et seq. : see Consideration Ex Post Facto.
 
 INDKX. G43 
 
 VALUABLE CONSIDERATrON-MWrnHcJ) 
 
 sS^hIkSknt'^ '^ "O'l-: 80C CossiBKRATioM OF Marriage: Marrugr 
 
 FORMANci: ; Voi.u.vT.vKv A(;ui:kmknt. 
 
 A^ENDOR OF LAND PREVIOKSLY SK'ITLKI) 
 
 by general words. 'I'M . -j:! I- 
 may assignee in Ijankruptoy be -l.V.',, \>:U 
 can any one but tlio settlor be, -J:!?- 211 
 heir or devifice of settlor cannot be. 2:t7. 241 
 cannot enforce the contract. .Ml-.M:5 
 
 YOTD — (src Deki) ; Voidaiu.k) 
 
 deed declared, under 1;! EHz. c. .'.. only ko nifainst ■ 
 under 27 Eliz. c. I, only so ii-'aiust i 
 529 
 
 under Bills of Sale Acta, agaiust whom, \'M. 137, 1-10. 150, 
 
 •l(i5 
 
 VOIDABLE— (sre Deed; Void) 
 
 deed under 1:! Eliz. c. 5, is not void, but, :?1<!, 317, 325 
 under 27 Eliz. c. 1. is not void, but. 'M(>, :\\7, '.V2o 
 deed procured by undue intluence is. H} et scq. : net' UxDDE IXFLCEXCB. 
 who can set aside deed for undue iullueuce, -UiS, 'Khl 
 gift of right to set aside, deed. 112 
 
 VOLUNTARY AGREE:\IENT 
 
 not enforced, whether uuder seal or not, o80, 300, ¥^\, to." 
 
 even if meritorious. •\9() 
 in family arrangements, when enforced. 391 
 to surrender copyholds not enforced, i'.l'l 
 voluntary deed not rectified in accordance with, 391 
 made good by subsequent acts of donee. 39;! 
 formal defect in, supplied only for wife and legitimate children. 3;» I, 3'.».'<, 
 
 397 
 substantial defect in, not supplied, 395, 39(! 
 must be perfect, 390, 391, 393. 397, 398 
 complete legal liability under, wlien enforced, 398 
 
 when not enforced, ■V.*'* 
 to pay in deed creates legal debt, 4<)0, 401 
 
 VOLUNTARY BOND, 
 
 giving up, a good consideration, 2.'">1 
 creates legal debt, 398 
 
 VOLUNTAEY CONTRACT: soo Contract; Voluxtart Agreevcst. 
 
 VOLUNTARY CONVEYANCE 
 
 good between parties, :51(J, 317, :'.2.j, -l<J3, [ul, •k'i;» 
 
 only void as against creditors or i)urcha8er!<, and so far n-< U> BRtufjr 
 
 them, :51G, 317, 325, 463, 4l)4_. 405^ 
 voidable, and not void, :n<;, 317, 325 -.o im 
 
 (rood as against all who claim through settlor. 325. Ahii, 4h\ 
 priority of date of. is priority of title, 320, 327. 328. 329. 475. 47G 
 
 in America, 32>< 
 perfect legal liability under, enforced, 398-kK» ^ 
 complete, for particular purpose, when set aside, 472, *«^ 
 
 executed under mistake of law, when set asule. 4j.i 
 delivered up if got by fraud of grantee, when, 473, 474, 175
 
 G44 INDEX. 
 
 VOLUNTARY CONVEYANCE— (eou^niwef?) 
 
 delivery of. to third person, -l-^S, 475 
 
 when douor of. has locus prenitentia^, 4-7o 
 
 not avoided by grantor's destroying, -loO, 475 
 
 how far avoided by grantor's subse(iuent disposition, 175, 476 
 
 to take efiect on marriage, when binding, 47l>, 477 
 
 not understood by settlor not upheld against hiur. 480, 4S1 
 
 unless settlor consent, upheld or set aside in toto, 481 
 
 when rectified, 4-81 et seq. : see Rectificatiox. 
 
 without power of revocation, when upheld, 499, 501 : sec Revocation, 
 
 POWEII OF. 
 
 imperfect, when upheld as trust, 425 
 
 not altered after death of donor, 425 
 
 must be perfect, :'!'7. 4<i2 et seq. : .see Gift, When Complete. 
 
 construction of complete, same as if for value, 458, 460, 461 
 
 void for ignorance, surprise, undue influence, 4'80, 4S3 et seq. : sec Undue 
 
 IXFLUEXC E. 
 rXDER EAXKRUl'TCV ACTS 
 
 may be void, but not under 13 Eliz. c. 5 : 11, 12 : see Assignmknt. 
 
 may be good, but not under 13 Eliz. c. 5 : 44 
 
 when void, 42, 51 
 
 when voidable, 43, 44 
 
 under Act 1809, by trader, 42, 51 
 
 under Act 1883, by trader or non-trader, 42, 4 1, 51 
 
 UNDER 13 ELIZ. C. 5, 
 
 what, 31, 32 
 
 to be judged of by all settlor's circumstances at time, 15, 35, 67 : see 
 
 Circumstances. 
 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, 8i 
 of all property, against any debt, void, 49 
 
 liability, whether void, 57 
 if fraudulent, void, whether any debtor not, 36, 41, 516 
 as against existing creditors — {see Cheditor) 
 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— (.sre Subsequent CREinToii) 
 when good, 45, 50, 75 
 
 paying oft" debts and substituting frosli will not protect. 61 
 set aside, if any original creditors still unpaid, 6:! 
 if settlor not in position to make, 63, 6 !• 
 when made by actual or then intending trader, 65. 66, 
 
 75 
 all creditors participate pro rata, 62 
 marks of fraud against, 66-68, 70-73, 76 
 
 fraudulent inbmt avoids even if no prior indebtedness, 68, 520, 521 
 express, fraudulent intent necessary to avoid, 78 
 in favour 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, but qua fraudulent, 5, 187, 188, 189, 195 
 
 void against purchaser with notice, 193, I'.'O 
 
 in America not void against purchaser with notice, 5, 196
 
 m L mted States not void a«ui„Hl p„rcluu,or without notice, if bonA fiJc. 
 
 made by direction of Court, void, 10-> 
 
 made to trustees, void, I '.i-J 
 
 secret, void against purchaser, li»!» 
 
 wholly defeated by sale of same property. 20H. 21 :J 
 
 only voKl to extent ot .nterest of^n.ok.^oe or' purcba«r. 208. 209. 217. 
 
 subject to ri-hts of purchaser, trusts of, HubRist .U).^ m 
 
 trnsteo of. purchasiu.ir the trust j.roperi;, 2:1.; " {7 ' 
 
 only voidable and not void, :!](;, ;!1 7 :!••:, 
 
 equity of redemption bound by] It;?' 
 
 of^land subject to a mort,,a.o. surplu. pr -...s ,., «,,, ,,.,„, ,^_,. 
 
 sale of land after, not enforced for vendor, :iV, 47G r.ll M-. 
 
 UNDER STATUTES OF EMZAHETII, ' *""'•■'* ^' ♦^J- 
 
 niadc good by matter ex post facto, 101 ^""lO ni '. ,., -„_ 
 rif^ht to avoid, how lost, :i2r> ' ~ ' ' ' ^' 
 
 not spoken of as such, f. 1^7. ]u7 
 intent of donor alone material in, lo 
 
 good as between the parties, G8, 208, 31(1, ;jl7, 325 -WS 4C1 
 only void so far as to satisfy creditors or purchaser, G«, 208. 209 32i 
 
 400, 403, JOl ' ' 
 
 v^ 1 1 1 1 r 1 , '" America, G'J 
 
 when cancelled, 529, 530 
 
 VOLUNTEER, 
 
 gift to, ^yitll or without notice of fraud on creditors, void, 4.'. 78 
 
 ancestor's debts avoid conveyance by, when, 105, lOG ' 
 
 how far a creditor under 1:5 Eliz. c. ;j : 107. lOS ' 
 
 assignee of debt now a creditor under 13 Eliz. c. 5 : 1G8 
 
 conveyance to, void against juirchaser, 187 et son. '-. see Pcrchaseb. 
 
 judgment relates back against, 22!» 
 
 contract for value enforceable /o/-, when. :]91, ;{f)2. 5:54 
 
 in America. 3!»2 
 cannot generally enforce contract for value, 31*1, ;if>2, 53^1. 
 voluntary agreement not enforced for. :!89 et «ofj': «^o Voluxtakt 
 
 Agreemknt. 
 surrender of copyholds not supplied for, :'.!»1 
 defect in execution of powers, when supplii-d for, ..■!. .. •.. 
 legal lial)ility created in favour of, when enforced, :;!»s. ;::»!• 
 claim of, when enforced against assets of deceased douor, ;JJ»8, 3(>y 
 gift to, 402 et seq. : sec Gift. 
 trust for, 402 et seq. : see Trust. 
 Court will not alter mode of assignment for, •J'V,, tl.'.. 42.1, 4^, 439, 
 
 445 
 conveyance to. good between parties, ;!10, 325, 320, iOO, 40'M<}(3 
 limitation to, in marriage settlement, 342 et seq., 5<'2 
 consideration ex post facto given by. as against creditor or parcbiuer, 
 
 315 et seq. 
 date of conveyance to. confers title, :!20. 475. 470 
 has no right to land sold on paying i)urchaser under 27 Eh'r. o. 4: 466. 
 
 467 
 may redeem mortgage, 467 
 
 cannot take benefit under settlement void between j'.iri;' - lur irau-l 
 or undue influence, 503, 50 1-
 
 G46 INDEX. 
 
 YOLUXTEER— (coH/ZnifCfZ) 
 
 cannot specifically enforce contract for sale, wlien, 315, -170, 511, 
 
 512 
 a party to action for specific performance, when, 514.' 
 marshalling in favonr of, when, 5:35 
 under deed and will in same position, 536 
 liability of, to contribution, 535, 530 
 
 WAIVER: see AcQUiEscEXCE ; Delay; Laches. 
 
 WARD— (srr Gr.vRDiAX ; ITxnuE Influence) 
 
 under intiuenco of guardian while relation exists, 481, 480-188 
 gift or voluntary settlement by, on guardian, when voidable bv. 488, 
 
 4H3, 4!U 
 when not voidable by, 
 494 
 WARDSHIPS, 
 
 feoffments to defeat, 3-22 
 
 WHOLE PROPERTY. 
 
 assignment of : see Assignment ; Generalitv. 
 
 WIDOW, 
 
 settlement by, ou 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, 3-58 
 when creditor of her husband, 165, 167 
 contracts of, with stranger, 281-283 
 
 with husband, 281-233, 483, 484 : see Contracts. 
 seT)arate maintenance of, husband when liable for, :)02-306 
 
 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, Ijy, when now void, 30, 31, 338, 339 
 settlement on, of husband's property, 338, 339 
 post-nuptial settlement by, when for value, 28 !• et seq. : see Post-nuptial 
 
 Settlement. 
 separation deed between, and husband, 301 et seq.: .see Separatiom 
 
 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 c>f pov/ers supplied for, 394. 396 
 husband making self trustee for, 141, 442, It:*, 
 declaration of trust by, 442, 443, 111 
 
 husband's infiuence 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 : 124 
 how now tested, 424, 425
 
 JM.KX. G^7 
 
 WILL. 
 
 what is undue iiilluonoc as to. I'.t7, .|!»H 
 
 l.nrdcu of pi-.K.f of undue ii.llueuce uh to. on whom 497 4nft 
 
 set asulc who ly or ,n i-art for u.uluo i..lluenco or fraud; ^ 
 
 jurisdiction ol l'rol)ute Division as to VM 
 
 contirmation of voidable deed l)y. ;,(»:,' .Vu; 
 
 volunteer under, in same position as iV under deed. oM 
 
 WRITTEN 
 
 autc-nuptial agreement for value :!t!8 :;71 
 ^'ll-S^ircT^ settlement founded on untc.ni.,.lial a^r, .•„,.. 
 agreements on marriage must be. .'171 et scq 
 recognition after marriage of parol contract U-foro. :;70 cl .ci 
 post-nuptial recognition, when valid by estoppel im '' 
 
 promise to reduce parol agreement to. prevented by fraud >-. 
 Pauol Agrkement; Parol llEniiisE.NT.vTiu.v. «"«, ^ 
 
 WRONGS, 
 
 public and private, difference as to compromise of, 311 
 
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 9.2.92
 
 STEVENS «&- HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS. 
 
 J'AGE 
 
 ADMINISTRATION ACTIONS— 
 
 Walker and Elgood l8 
 
 ADMINISTRATORS— 
 
 Walker 6 
 
 ADMIRALTY LAW— 
 
 Jones '4 
 
 Kay »7 
 
 Smith 23 
 
 ARBITRATION— 
 
 Slater 7 
 
 ARTIZANS AND LABOURERS' 
 DWELLINGS— Lloyd .... 13 
 
 ASSAULTS— 
 
 See MAGISTERIAL LAW. 
 
 BANKRUPTCY— 
 
 Bald\\in 15 
 
 Hazlilt 29 
 
 Indermaur (Question & Answer) 28 
 Ringwood 'I5» ^5 
 
 BAR EXAMINATION JOURNAL 39 
 
 BIBLIOGRAPHY 40 
 
 BILLS OF LADING— 
 
 Campbell 9 
 
 Kay 17 
 
 BILLS OF SALE— 
 
 Baldwin 15 
 
 Indermaur ........ 28 
 
 Ringwood 15 
 
 BUILDING LEASES AND CON- 
 TRACTS— 
 
 Emden 8 
 
 Hudson 12 
 
 CAPITAL PUNISHMENT— 
 
 Copinger 42 
 
 CARRIERS— 
 
 See RAILWAY LAW. 
 „ SHIPMASTERS. 
 
 CHANCERY DIVISION, Pr.aclice of— 
 Brown's Edition of Snell ... 22 
 
 Indermaur .25 
 
 Williams 7 
 
 And see EQUITY. 
 
 CHARITABLE TRUSTS— 
 
 Cooke 10 
 
 Whiteford 20 
 
 CHURCH AND CLERGY— 
 
 Brice ... 9 
 
 CIVIL 'LAW— See ROMAN LAW. 
 
 CLUB LAW— 
 
 Werlheimer 32 
 
 CODES— Argles 32 
 
 COLLISIONS AT SEA— Kay . . 17 
 
 COLONIAL LAW— 
 
 Cape Colony 3^ 
 
 Forsyth 14 
 
 Tarring 4* 
 
 COMMERCIAL AGENCY— 
 
 Campbell 9 
 
 COMMERCIAL LAW— 
 
 Hurst and Cecil H 
 
 COMMON LAW— 
 
 Indermaur 24 
 
 COMPANIES LAW- 
 
 Brice »6 
 
 Buckley »7 
 
 Reilly's Reports 29 
 
 Smith 39 
 
 Watts 47 
 
 COMPENSATION— 
 
 Browne 19 
 
 Lloyd 13 
 
 COMPULSORY PURCHASE— 
 
 Browne 19 
 
 CONSTABLES— 
 
 ^tY POLICE GUIDE. 
 
 CONSTITUTIONAL LAW AND 
 HISTORY— 
 
 Forsyth 14 
 
 Taswell-Langmead 21 
 
 Thomas 28 
 
 CONSULAR JURISDICTION— 
 
 Tarring 42 
 
 CONVEYANCING— 
 
 Copinger, Title Deeds .... 45 
 Copinger, Precedents in ... 40 
 Deane, Principles of 23 
 
 COPYRIGHT— 
 
 Copinger 45 
 
 CORPORATIONS— 
 
 lirice 16 
 
 Browne 19 
 
 COSTS, Crown Office - 
 
 Short 41 
 
 COVENANTS FOR TITLE— 
 
 Copinger 45 
 
 CREW OF A SHIP— 
 
 Kay 17 
 
 CRIMINAL LAW— 
 
 Copinger 42 
 
 Harris 27 
 
 CROWN LAW— 
 
 Forsyth 14 
 
 Hall 30 
 
 Kelyng 35 
 
 Taswell-Langmead 21 
 
 Thomas 28 
 
 CROWN OFFICE RULES— 
 
 Short 10 
 
 CROWN PRACTICE— 
 
 Corner lO 
 
 Short and Mellor lo 
 
 CUSTOM AND USAGE— 
 
 Ikowne 19 
 
 Mayne 38 
 
 DAMAGES— 
 
 Mayne 3' 
 
 DICTIONARIES— 
 
 Brown 26
 
 STEVENS <&- HAYNES, BELL YARD, 7&M^ 
 
 INDEX OF SUBJECTS-^'"""-'/ 
 
 DIGESTS- ,^^K 
 
 Law Magazine (^iiarlcrly Digest , 37 
 Mcnzies' Digest of'Cape Reports. 38 
 
 DISCOVKRV— I'eile 7 
 
 DIVORCE— Harrison 23 
 
 DOMESTIC RELATIOiNS— 
 
 Eversley 9 
 
 DOMICIL— ^-ff^ PRIVATE INTER- 
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 DUTCH LAW 3S 
 
 ECCLESIASTICAL LAW— 
 
 Brice 9 
 
 Smith 23 
 
 EDUCATION ACTS— 
 
 See MAGISTERIAL LAW. 
 
 ELECTION LAW and PETITIONS— 
 
 Hardcastle 33 
 
 O'Malley and Hardcastle . • . 33 
 Seager 47 
 
 EQUITY— 
 
 Blyth 22 
 
 Choyce Cases 35 
 
 Pemberton 32 
 
 Snell 22 
 
 Story 43 
 
 Williams 7 
 
 EVIDENCE 
 
 See USAGES AND CUSTOMS. 
 
 EXAMINATION OF STUDENTS— 
 Bar Examination Journal ... 39 
 
 Indermaur 24 and 25 
 
 Intermediate LL.B 21 
 
 EXECUTORS— 
 
 Walker and Elgood 6 
 
 EXTRADITION— 
 
 Clarke . 45 
 
 See MAGISTERIAL LAW, 
 
 FACTORIES— 
 
 See MAGISTERIAL LAW. 
 
 FISHERIES— 
 
 See MAGISTERIAL LAW. 
 
 FIXTURES— Brown Zl 
 
 FOREIGN LAW— 
 
 Argles 32 
 
 Dutch Law 3^ 
 
 Foote 3<i 
 
 FORESHORE— 
 
 Moore 3° 
 
 FORGERY— 5-^^ MAGISTERIAL LAW. 
 
 FRAUDULENT CONVEYANCES— 
 May 29 
 
 GAIUS INSTITUTES— 
 
 Harris ^'■^ 
 
 GAME LAWS— 
 
 See MAGISTERIAL LAW. 
 
 GUARDIAN AND WARD— 
 
 Eversley 9 
 
 HACKNEY CARRIAGES- 
 See MAGISTERIAL LAW. 
 
 HINDU \.\\\ 
 
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 Cunninghati) . 
 
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 Lloyd 
 
 L.\ND, IMPROVEMENT UK. by 
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 Emdcn ... 
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 L\W M.\(i.\ZINE »nd REVIEW. 
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 Common Law . 
 
 Constitutional 1. 
 
 Equity and Coa^cyoiu^;;^ . ■ • 
 
 Hindu Law 
 
 International L - 
 
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 37 
 
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 14 
 «3 
 
 47 
 
 23 
 
 8 
 4J
 
 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS-^'"'/'""'''- 
 
 PAGE 
 
 LEADING STATUTES - 
 
 Thomas 28 
 
 LEASES— 
 
 Emden ^ 
 
 Copinger 45 
 
 LEGACY AND SUCCESSION— 
 
 Hanson JO 
 
 LEGITIMACY AND MARRIAGE— 
 
 See PRIVATE INTERNA- 
 TIONAL LAW. 
 LICENSES— ^^ MAGISTERIAL LAW. 
 LIFE ASSURANCE— 
 
 Euckley I7 
 
 Reilly 29 
 
 LIMITATION OF ACTIONS— 
 
 Banning 42 
 
 LUNACY— 
 
 Williams 7 
 
 MAGISTERIAL LAW— 
 
 Greenwood and Martin . ... 46 
 MAINTENANCE AND DESERTION. 
 
 Martin 7 
 
 MARRIAGE and LEGITIMACY— 
 
 Foote 36 
 
 MARRIED WOMEN'S PRO- 
 PERTY ACTS— 
 
 Worthington's Edition of Griffith. 40 
 MASTER AND SERVANT- 
 
 Eversley 9 
 
 See MAGISTERIAL LAW. 
 ,, SHIPMASTERS & SEAMEN. 
 MERCANTILE LAW 32 
 
 Campbell 9 
 
 Duncan 33 
 
 Hurst and Cecil 11 
 
 Slater 7 
 
 See SHIPMA.STERS. 
 ,, STOPPAGE INTRANSITU. 
 MERCHANDISE MARKS— 
 
 Daniel 42 
 
 MINES— 
 
 Harris 47 
 
 See MAGISTERIAL LAW. 
 MORTMAIN— 
 
 .S-^^ CHARITABLE TRUSTS. 
 NATIONALITY— i-^r^ PRIVATE IN- 
 TERNATIONAL LAW. 
 NEGLIGENCE— 
 
 Beven 14 
 
 Campbell 40 
 
 NEWSPAPER LIBEL— 
 
 Elliott 14 
 
 OBLIGATIONS— 
 
 Brown's Savigny 20 
 
 PARENT AND CHILD— 
 
 Eversley 9 
 
 PARLIAMENT— 
 
 TaEwcll-Langmead 21 
 
 Thomas , 28 
 
 PACE 
 
 PARTITION— 
 
 Walker 43 
 
 PASSENGERS— 
 
 .S-^,; MAGISTERIAL LAW. 
 „ RAILWAY LAW. 
 
 PASSENGERS AT SEA— 
 
 Kay 17 
 
 PATENTS— 
 
 Daniel ii 
 
 Frost 12 
 
 PAWNBROKERS— 
 
 See MAGISTERIAL LAW. 
 
 PETITIONS IN CHANCERY AND 
 LUNACY— 
 
 Williams 7 
 
 PILOTS— 
 
 Kay 17 
 
 POLICE GUIDE— 
 
 Greenwood and Martin .... 46 
 
 POLLUTION OF RIVERS— 
 
 Higgins 30 
 
 PRACTICE BOOKS— 
 
 Bankruptcy 15 
 
 Companies Law .... 29 and 39 
 
 Compensation 13 
 
 Compulsory Purchase . . . . 19 
 
 Conveyancing 45 
 
 Damages 31 
 
 Ecclesiastical Law 9 
 
 Election Petitions 33 
 
 Equity 7, 22 and 32 
 
 Injunctions 44 
 
 Magisterial 46 
 
 Pleading, Precedents o.*" . . . 7 
 
 Railways 14 
 
 Railway Commission . . . , 19 
 
 Rating 19 
 
 Supreme Court of Judicature . . 25 
 
 PRACTICE STATUTES, ORDERS 
 AND RULES— 
 
 Emden II 
 
 PRECEDENTS OF PLEADING— 
 
 Cunningham and Mattinson . . 7 
 
 Mattinson and Macaskie ... 7 
 
 PRIMOGENITURE— 
 
 Lloyd 13 
 
 PRINCIPLES— 
 
 Brice (Corporations) . . . , . 16 
 
 Browne (Rating) 19 
 
 Deane (Conveyancing) .... 23 
 
 Harris (Criminal Law) .... 27 
 
 Houston (Mercantile) .... 32 
 
 Indermaur (Common Law) . . 24 
 
 Joyce (Injunctions) 44 
 
 Ringwood (Bankruptcy) ... 15 
 
 Snell (Equity) 22 
 
 PRIORITY— 
 
 Robinson 32 
 
 PRIVATE INTERNATIONAL LAW— 
 
 P'oote 36
 
 INDEX OF SUBJECTS-'^-/-.'/ 
 
 47 
 
 TROBATE— 
 
 Hanson 
 
 Harrison . 
 rROMOTERS— • • • 
 
 Watts .... 
 PUBLIC WORSHH'-" 
 
 I^rice .... (, 
 
 QUARTER SESSIONS- " " " -' 
 
 ^mith{F. J.) 6 
 
 QUEEN'S BENCH DIVISION, Practice 
 of — 
 
 Indermaur 
 
 QUESTIONS FOR STUDENTS^ 
 
 Aldred 
 
 Bar Examination Journal . . 
 
 Indermaur 
 
 Waite .... 
 
 RAILWAYS- ■ • • . 
 
 Browne 
 
 Godefroi and Short t ... 47 
 
 See MAGISTERIAL LAW. 
 
 RATING— 
 
 Browne in 
 
 REAL PROPERTY— 
 
 Deane 23 
 
 Edwards 16 
 
 Tarring .... 26 
 
 REGISTRATION— 
 
 Elliott (Newspaper) . . . 
 Seager (Parliamentary) . . . 
 
 REPORTS— 
 
 Bellewe 
 
 Brooke 
 
 Choyce Cases 35 
 
 Cooke 35 
 
 Cunningham 34 
 
 Election Petitions 33 
 
 Finlason 32 
 
 Gibbs, Seymour Will Ca^o . . 10 
 
 Kelyng, John 35 
 
 Kelynge, William 35 
 
 Reilly 29 
 
 Shower (Cases in Parliament) . 34 
 
 ROMAN DUTCH LAW— 
 
 Van Leeuwen 38 
 
 ROMAN LAW— 
 
 Brown's Analysis of .Savigny . , 20 
 
 Campbell 47 
 
 Harris 20 
 
 Salkow.ski 14 
 
 Whitfield 14 
 
 SALVAGE— 
 
 Jones 47 
 
 Kay 17 
 
 SANITARY ACTS— 
 
 See MAGISTERIAL LAW. 
 
 SAVINGS BANKS— 
 
 Forbes iS 
 
 SCINTILLAE JURIS - 
 
 Darling (C. J.) iS 
 
 SEA .SllOkl ,, 
 
 Hall. . 
 
 .^^<M)rc . 
 
 SHMMA.STKk.-i AND .SKAMKN- 
 
 R-'y . . . , 
 
 SOCIETHIS- 
 
 S^e CUKPQRATION.S. 
 
 .sta<;e (AkkiAcis . 
 
 ^■/•(-.MAtMSTEklAL LAW. 
 STA.MI' DUTIES - 
 
 C.ii)inj;cr 40 and 
 
 STATOtE OK LIMITATIONS- 
 
 Banning 
 
 statuti:s- 
 
 llardcastic. . 
 Marcy . 
 
 New ZcaLind 
 
 Thuin.as 
 
 stoppa(;e in TkANSIXu" 
 
 CamjilK.ll 
 
 Houston 
 
 Kny ; : : ; 
 
 STUDENTS' BOOK.S . 20 :S. 10. 
 
 succession DUTIF^ 
 
 Hanson 
 
 SUCCESSION LAWS 
 
 Lloyd 
 
 SUPkEME COURT OF JLDI'.A 
 TL'kE, Practice of — 
 
 Cunningham and Maltinton . . 
 
 Indermaur 
 
 TELEGkAPHS— 
 
 .S'«.M.\(;iSTERIAL LAW. 
 TITLE DEEDS- 
 
 Co|Hngfr ... 
 TOkTS— 
 
 kingwocxl 
 
 TOWNS IMPkOVEMKNTN 
 
 See M.UJI.STFklAL LAN'. 
 TRADE ^L\kKS- 
 
 Danicl 
 
 TREASON - 
 
 Kelyng . . . 
 
 T.xswcllLangnictd 
 
 TklALS— Bartlctt. A. (Mur.tcrl 
 
 (^uccn f. (iurn>\ 
 ULTkA VIRES 
 
 Price 
 
 US.VIES AND CUSTOMS— 
 
 Browne 
 
 Mayne 
 
 VOLUNTAkV CONVFV^N ' •> 
 
 May 
 
 WATEk COUKSKS— 
 
 Higgins 
 
 WILLS, CONSTRUCTION OF— 
 
 Gil>K kciKut of WalUre r. 
 AllurncyGnicial .... 
 
 U
 
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 Second Edition, in 8vo, price 2$s., cloth, 
 
 REMODELLED, MUCH ENLARGED, WITH SEVERAL NEW 
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 not least, is an excellent glossary of architectural and building terms used in the Building Act, building 
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 prehensive work published by Messrs. Stevens & Haynes, of Bell Yard, Templfe Bar, by Mr. Alfred 
 Emden, is the best and most generally useful we know. We mention this fact because a second edition 
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 — Building Titties. > • , , 
 
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 that'^^^Foa'sToi^ln^dTsZl^^^^^^^^^ O" «»« "-W.*.. « r 
 
 favourable one."-z'„l1S:'i.V':rw" """"• ' ''"'''"•'"• *" '^' '-* -^ 
 " ' Ihe Relationship of Landlord and Tenant ' wriiien l.v Mr P t 
 
 iawye"! b^rbv Lndr'd""-^! ^"'^ '""-'l"^ oV".a"cm:n;"'"li> ^^n.^. ": 
 lawyers but by landlords and tenants themselves, the Uw in c 
 and clearness which bring it within the gra,p of .'he lay mind 
 
 I cac; 
 
 Second Edition, in i Volume, medium Svo, price 351., doth, 
 
 EMDEN'S COMPLETE COLLI-CTIONJ 
 
 UF 
 
 PRACTICE STATUTES, 
 
 ORDERS AND RULES. 
 
 Being a Selection of such Tractical Parts of all Statutes. Orrlcrr art! Rnfft. 5, a,^ ^^^ 
 in force, and relate to the I'racticc and Procedure uf i' 
 1276 to 1886. With Tal.ulatcd Summaries of the V 
 
 Cross-references. 
 
 By ALFRED E^rI)Ey, 
 
 [OF THE INNER TEMPLE, ESQ., BARRISTER-AT-LAW ; ALTIIO* or "l,.^ ..* -.,i,,v-ir 
 
 COMPANItS; THE LAW RELATI.NG TO BCILUIM;, B|/ILbl.'<C. UIIA«», *»« CmmUICn * ' 
 
 "the sharkholuer's LBCAL OI'IUI," «1X. * 
 
 ASSrSTEn llY 
 
 HERBERT THOMPSON', M.A.. 
 
 OF THE I.N.NER TKMI'LK, UAKNIfcTaK-AT-t A^
 
 12 STEVENS & HAYNES, BELL YARD, TEMPLE BAR. 
 
 Just published, in royal Svo, cloth, 2Sj., 
 A TREATISE ON THE 
 
 LAW AND PRACTICE 
 LETTERS PATENT FOR INVENTIONS. 
 
 WITH AN 
 
 APrENDIX OF STATUTES, INTERNATIONAL CONVENTION, 
 RULES, FORMS AND PRECEDENTS, ORDERS, &c. 
 
 By ROBERT FROST, B.Sc. (LoNa), 
 
 FELLOW OF THE CHEMICAL SOCIETY; OF LINXOLn's INN, ESQL'IRE, BARRISTER-AT-LA\V. 
 
 " In our view a good piece of work may create a demand, and without disparaging existing literature 
 upon the subject of patents, we think the care and skill with which the volume by Air. Frost has been_ 
 compiled, entitles it to recognition at the hands of the profession. . . . Judging Mr. Frost on this 
 ground, we find him completely satisfactory. A careful e.xaniination of the entire volume satisfies us that 
 great care and much labour have been devoted to the production of this treatise, and we think that patent 
 agents, solicitors, the bar and the bench, may confidently turn for guidance and instruction to the pages 
 of Mr. Frost." — Law Times. 
 
 " Few practice books contain so much in so reasonable a space, and we repeat that it will be found 
 generally useful by practitioners in this important branch of the law. ... A capital index concludes 
 the book." — Law Journal. 
 
 " The book is, as it professes to be, a treatise on patent law and practice, the .several topics being con- 
 veniently arranged and discussed in the thirteen chapters which form the body of the work, to which 
 are appended statutes, rules, and forms. The statements of the law, so far as we have been able to test 
 them, appear to be clear and accurate, and the author's style is pleasant and good. . . . The book is 
 a good one, and will make its way. The index is better than usual. Both paper and type arc ako 
 excellent." — Solicitors Journal. 
 
 In royal Svo, price Z^s., in cloth, 
 
 A PRACTICAL TREATISE ON THE 
 
 LAW OF BUILDING AND 
 ENGINEERING CONTRACTS, 
 
 And of the DUTIES and LIABILITIES of ENGINEERS, ARCHITECTS, 
 
 SURVEYORS AND VALUERS, 
 
 WITH AN APPENDIX OF PRECEDENTS, 
 
 ANNOT.\TED BY ME.\NS OF REFERENCE TO THE TEXT AND TO CONTRACTS 
 
 IN USE. 
 
 AND AN APPENDIX OF UNREPORTED CASES 
 
 ON BUILDING AND ENGINEERING CONTRACTS. 
 
 By ALFRED A. HUDSON, 
 
 OF THE INNER TEMPLE, HARRISTER-AT-LAW. 
 
 " A very full index completes the book. Mr. Hudson has .struck out a new line for himself, and pro- 
 duced a work of considerable merit, and one which will probably be found indispensable by practitioners, 
 inasmuch as it contains a great deal that is not to be found elsewhere. The Table of Cases refers to all 
 the reports." — Law Journal. 
 
 " Mr. Hudson, having abandoned his profession of an architect to become a barrister, hit upon the idea 
 of writing this work, and he has done it with a thoroughness which every houseowner would like to see 
 
 bestowed upon modern houses The Index and Table of Cases reveal a vast amount of industry 
 
 expended upon detail, and we shall be much surprised if Mr. Hudson does not reap the reward of his 
 labours by obtaining a large and appreciative public." — La7u 7'i»tcs. 
 
 "The author of this somewhat bulky volume has, within the compass of some 900 pages, dealt in a 
 practical and exhaustive manner with the Law of liuilding and Engineering Contracts. . . . An Index ol 
 Precedents and a good General Index will be found at the end of the work.' — Solicitors' Jountal. 
 
 "... has enabled him to produce a work which, regarded both from the lawyer's and from the architect's 
 and builder's point of view, must be pronounced excellent. It is good from the lawyer's standpoint as 
 being logical in arrangement, clear in statement, and generally accurate in the law laid down. The archi- 
 tect or engineer will also give it praise for answering the questions precisely which arise in his dealings 
 with his employers." — Scotsman.
 
 STEVENS &- liAYNKS, BELL YARD, TEUPLR BAR. 
 
 It 
 
 In 8vo, price lo/. &/., clolh, 
 
 OUTLINES OF THE LAW OF TORTS. 
 
 By RICHARD RINGWOOD, M.A., 
 
 OF THE MIDDLE TE'.Ml l.K. DARRISTHK-AT-I.AW ; ALTIIO« ..r •'r»IN.-|MA» or ••■•■vrtC*.' A' 
 AND LECTUHRR ON COMMON LAW TO TH« IN( OlirOIIATKI) LAW fXIVTt. 
 
 "This is a work by tlie well-known author of a studcm'a boot 
 series of lectures delivered in 1887 by Mr. Rincwood, u Icctu;. 
 Society. It is clear.-concise, well and intelliKcnlly written and 
 pleasure. . . . After perusing the entire wort, we tan com 
 Law Students' Journal. 
 
 " The work is one we well recommend to law Hudentt, »nd the a: > mj,v in ».'.„J. a n 9 
 much credit upon the author." — /.aw Times. 
 
 " Mr. Ringwoods book is a plain and straightforward intr.>ducti.>n to thii UiUf h U i^^ 
 Journa!. 
 
 In Svn, price 251., ciuth, 
 
 THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c. 
 
 UNDER THli LANDS CLAUSI.S, KAll.UAV t. l..\L'.^l,S t.( i.NMJl.lJtAI lUN ASU 
 MKTROl'OLllAN ACTS 
 THE ARTIZANS AND LAIJOURKRS' DWKI.MNf'.S IMPROVKMrST A'T ' 
 
 WITH A FULL COLLECTION OF FORMS AND PRECEDENTS. 
 
 FIF'IH EDITION, Enlarged, wirit Additionai. Forms, ikcluoiwo 
 Precedents ok Uii,i„s ok Cos is. 
 
 By EYRE ELOYD, 
 
 OF THE INNER TEMPLE, DAKRISTEK-AT-LAW. 
 
 satLsfaclory it appcan _lo n« fn 
 view — coniprehenuve in iu n 
 treatment, sound in iu c<(» 
 Tima. 
 
 "The work is entinently a practical one, and b of great N-alue to praclilionert ■!«. — 
 
 compensation cases." — Solicitors' Journal. 
 
 "It is with much gratification that we have to 
 express our unhesitating opinion that Mr. Lloyd's 
 treatise will prove thoroughly satisfactory to the 
 profession, and to the public at large. Thoroughly 
 
 " In proT.ndiiig tlie legal profession with a book whiih . 
 Equity upon the various statutes relating to the Law 0/ ■ 
 left all competitors in the distance, and his book may n- 
 j'ect. The plan of Mr. Lloyds book is gcuf rally kiunvn, .. 
 fulfils all tlie promises of the preceding editions, and Civ. • 
 of forms utuier tlie Artizans and Labourers Act, 1875, <i -.• .- 
 a novel feature, extremely Jiseful to legal practitioners,"— y.^W-^ 'jf T 
 
 , !^ *^ 
 
 fy^^^ fMQisv •■ 
 
 In Svo, price Jj., cT ■•:!., 
 
 THE SUCCESSION LAWS OF CHRISTIAN COUNTRIES, 
 
 WITH SrF.riAI. KK1FKKN( F lO 
 
 THE LAW OF PRIMOGENITURE AS IT EXISTS IN ENGLAND. 
 By eyre LLOYD, B.A., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW ; At THOK OF " f***}^'^ CB1ir«««*T»MI 
 UNDER THE LANDS CLALSKS COSSOLIOATIOK ACT*, «TC. 
 
 In crown Svo, price 6/., cluth. 
 
 ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY. 
 
 By JOHN W. SALMON 1), ^LA., LL.B. (bjNiM. 
 
 A LAKRISTER UK THE SU REMK COIHT -f MW 7«ALA«I^
 
 14 ST£II:A'S &- J/AVNES, BELL YARD, TEMPLE BAR, 
 
 In one volume, royal 8vo, price 42^., cloth, 
 
 PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 By THOMAS BEVEN, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LA\V ; AUTHOR OF " THE LAW OF EMPLOYER'S LIABILITY 
 FOR THE NEGLIGENCE OF SERVANTS CAUSING INJURY TO FELLOW SERVANTS." 
 
 He has treated the well-known subject of Negligence in a scientific way, and has not been content with 
 merely collecting, in more or less relevant positions, a number of cases which anyone could find for himself 
 in any Digest of Law Reports, but has endeavoured to reduce from the chaos of decided cases a systematic 
 study of the subject, with clear enunciations of the principles he finds governing the various decisions. In 
 the arrangement of the book the author has been verj' happy in his method, a by no means easy task in the 
 treatment of a subject in which each branch of it in reality overlaps another. ... A good index and 
 clear type increase the value of a book which will without doubt receive the hearty commendation of the 
 profession as a successful completion of the author's ambitious t.-lsk." — Law Times. 
 
 " The reader who takes these as samples of the work, will find how careful and exhaustive Mr. Beven has 
 been, and how valuable a contribution he has made to the important branch of the law with which he has 
 undertaken to de^sX." -Solicitor's yoiirnai. 
 
 " In respect of the style of treatment of the subject, the book must be highly commended. It will be of 
 service to ever>- lawyer who wishes rather to get an intelligent understanding of the Law of Negligence, 
 than merely to find correct and reliable legal propositions for practical use and that whether he be a student 
 or a practitioner. To the student the work is valuable for the searching and well-sustained discussion of the 
 cases ; and to the practitioner there are jpresented all the cases that bear on most points for which he may 
 be in search of authority. One of the chief merits of tlie work is, that all the available authority on each 
 point is collected and so arranged that it can be easily found." — Jin idical Rez'ic'w. 
 
 Contains evidence of much serious work, and ought to receive a fair trial at the hands of the profes- 
 sion." — La7v Quarieriy Rcz'icw. 
 
 'This is the mo.st elaborate work on the Law of Negligence which has yet appeared in England. . . . 
 His treatment is original, and has evidently not been adopted without great research, care, and revision." 
 — Law Jouinai. 
 
 In one large vol., Svo, price 32J'., cloth, 
 
 INSTITUTES AND HISTORY OF ROMAN PRIVATE LAW, 
 
 WITH CATENA OF TEXTS. 
 
 By Dk. carl SALKOWSKI, Professor of Laws, Konigsberg. 
 
 Translated and Edited by E. E. Whitfield, M.A. (O.xon.). 
 
 In Svo, price 4? . 6d. , cloth, 
 THE 
 
 NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. 
 
 With a statement of the Law of Libel as affecting Proprietors, Publishers, and Editors of 
 Newspapers. By G. Elliott, Barrister-at-Law, of the Inner Temple. 
 
 In one volume, royal Svo, price 305-., cloth, 
 
 CASES AND OPINIONS ON CONSTITUTIONAL LAW, 
 
 AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE. 
 
 Collected and Digested from Official Documents and other Sources; with Notes. By 
 William Forsyth, M.A., M.P., Q.C., Standing Counsel to the Secretary of 
 State in Council of India, Author of " Hortensius," "History of Trial by Jury," 
 " Life of Cicero," etc., late P"ellow of Trinity College, Cambridge.
 
 /'///• Edition, ill Svo, juice lu., u.„ <kij. 
 
 THE PRINCIPLES OF BANKRUPTCY. 
 
 WITH AN APPENDIX 
 
 < "N lAIMN.; 
 
 THE CONSOLIDATED RULES OF 1886 k 1890, SCALE OF COSTS 
 1886, AND THE BILLS OF SALE ACTS. 1878. 1BH2 A. kit. ' 
 
 liTc, Etc. 
 Bv RICHARD RINGWOOD. ' 
 
 OF TICK MIDDIK TKMPLE, BAKRrSTHIi-AT-IJ\W ; I 'TK ^r--,,, ^„ , ,, , 
 
 "This edition is a considerable improvement ••' 
 Students, the work will be found useful to the pr;i. 
 
 " Those who have to deal with the subject in any ,.| 
 Mr. Kingwood's unpreTending but useful volume."— /,«., 
 
 "His book docs not profess to be an exhaustive trcai; 
 volume we have a v.ist amount of viell-digested matter. 1 
 a long list of cases flung at him at the end of each page 
 well-selected sentences, and a reference given to the Ic . 
 excellent index, and a table of cases where references to four >■ 
 a glance, show the industry. and care with which the work hij I 
 
 Sixth Edition, 1890, in royal izmo, price 20/., 
 With Su/>/>Iciiiciit, 1 89 1, coiitainiiii; the Act niid A: 
 
 A TREATISE UPON 
 
 THE LAW OF BANKRUPTCY 
 
 A.M) 
 
 BILLS 01^ SALi:. 
 
 WITH AN APPENDIX 
 
 CONTAINING 
 
 THE BANKRUPTCY ACT, 18S3 ; GENKK.XL KILES ■; 
 
 OF 1886; SCALE OF COSTS AND FEES Hi 
 RULES UNDER S. 122 of 1S8S ; BANKRUPTCY ' l: I 
 
 APPEALS) ACT, 1884; BANKRUPTCY DLSCH A' 
 RULES AND FORMS; BANKRUPTCY 
 PAYMENTS) ACT, 1888; DEEDS OF ARKAN' 
 
 RULES AND FORMS; BOARD OF TRADE AND (. 
 ORDERS; DEBTORS ACTS, 18C9, 1878, and RULES, «.. ,, 
 BILLS OF SALE ACTS, 1S78, 1882, AND RULES, 1883. 
 
 By EDWARD T. BALDWIN, M.A.. 
 
 OK THE IN.SER TE.Mri-E, nARRISTEK-AT-t-AW. 
 
 *^* The Supplement may be htui separattly, frite 3 
 
 " His new edition is in every respect satisfactor)-." — /..i 
 
 " It is a thoroughly good and reliable work. . . . W 
 have this book than any other on the same subject in our \\' 
 
 " Mr. Baldwin's book has a wcll-eained reputation lor cor.^in 
 a terse and readable treatise on Bankruptcy law hi« work mjy be 
 is a good index." — Solicitors' J onr)ial. _ . 
 
 " The present edition appears to be quite equal in excelkiKO lo ili jj;i.iIv-Ci»or», aftj fj» J*a 
 purposes the book is all that can be desired." — La-JD Js'ottt.
 
 IG S7 EVENS (Sr' IIAYNES, BELL YARD, TEMPLE BAR. 
 
 Ljccoml Edilion, n one vol., price 20J., cloth, 
 
 A COMPENDIUM OF THE LAW OF 
 PROPERTY IN LAND. 
 
 FOR THE USE OF STUDENTS AND THE TROFESSWN. 
 
 SECOND EDITION. 
 
 V>\ WILLIAM DOUGLAS EDWARDS, LL.B., 
 
 OF Lincoln's inn, barrister-at-law. 
 
 " .Another excellent compendium which has entered a second edition is Mr. Edwards' 'Compendium of 
 the Law of Troperty in Land.' No work on English law is written more perspicuously. . . . Mr. 
 Edwards has manifestly bestowed the utmost care in putting into the most modern dress a treatise which 
 we think will continue to grow in the estimation of the profession." — Law Times. 
 
 "We formed a verj- favourable opinion of the first edition of this little book, and our opinion is con- 
 firmed by the perusal of the second edition. The author has the merit of being a sound lawyer, a merit 
 perhaps not always possessed by the authors of legal te.\t books for students. He writes in good English, 
 and generally speaking states the law correctly. We are glad to hear of the rapid sale of the book, as we 
 feel certain that no student will repent having studied it." — Law Quarterly Kciiiew. 
 
 "The book is certainly destined to take a high place as a standard work on the Law of Property in 
 Land. The style is good, the conclusions of law are accurate, and the authorities are well selected. .... 
 
 The amount of detail is much greater than in Williams As a companiori volume to it, we can with 
 
 great confidence recommend it to the student ; and the practitioner will find it a very useful epitome of 
 the modern law. Altogether it is a work for which we are indebted to the author, and is worthy of the 
 improved notions of law which the study of jurisprudence is bringing to the Uon\.."—Soliciiori' Journal. 
 
 " This book shows signs of thorough work throughout The book is a business-like and useful 
 
 performance." — Law Joutnal. 
 
 "Mr. Edwards has produced a most comprehensive, and in many ways most valuable, piece of work 
 
 We consider this book preferable in many respects to the standard w^orks usually placed in the 
 
 hands of student,s In arrangement, the book has more good method in it than any other book we 
 
 know on the same subject." — Tlic Vxjord Review. 
 
 In one volume of One Thousand Pages, royal 8vo, price 42^., cloth, 
 A TREATISE ON THE DOCTRINE OF 
 
 ULTRA VIRES: 
 
 BEING 
 
 An Investigation of the Principles which Limit the Capacities, Powers, and Liabilities of 
 CORPORATIONS, 
 
 AND MORE ESPECIALLY OK 
 
 JOINT STOCK COMPANIES. 
 
 SECOND EDITION. 
 
 By SEWARD BRICE, M.A., LL.D. London, 
 
 OF THE INNER TEMl'LE, BARRISTER-AT-LAW. 
 
 REVIEWS. 
 
 ". . . . Oh the whole, we consider Mr. Brice' e.xhaustii'e work a valuable etddition to the literature oj 
 the fro/eaion." — Saturday Review. 
 
 "It is the Law of Corporations that Mr. Brice treats of (and treats of more fully, and at the same 
 lime more scientifically, than any work with which we are acquainted), not the law of principal and 
 agent ; and Mr. ISrice does not do his book justice by giving it so vague a title." — Law Journal. 
 
 "On this doctrine, first introduced in the C(jmmon Law Courts in East Anglian Railway Ce. v. 
 Eastern Counties Railway Co., Brice on Ultra Vikes may be read with advantage." — Judgment 0/ 
 LoRO JusTiCK Bkamwkll, in the Case 0/ Evershtdy. L. b' N. IV. Ry. Co. (L. R., 3 Q B. Div. 141.)
 
 STEVENS &. IIAYNES, BELL YARD, TEMFIS b.i 
 
 Sixth Edition, in royal Svo. ,„;, 
 
 c 14' : rt.jk 
 
 BUCKLEY ON THE COMPANIES ACTS. 
 
 SIXTH r.DITloy liY THE AUTHOR. 
 THE LAW AND PRACTICE UNDER THE COMPANIES ACTS. 
 1862 TO 1890, 
 
 ASO 
 
 THE LIFE ASSURANCE COMPANIES ACTS. 1870 TO 1877. 
 
 Including the Co.m,.aniks ,M..M,,KAM.rM u. .V.>^uno.s) .v... ' 
 The Companies (Winuing-u..) Act, ani, Tut DutcToa.' Lu.iurr A. : 
 
 '^ miatiac on the jC.ito of Joint ^tock Cotnpanu*. 
 
 CONTAINING THE STATUTES, WITH THE RULES, ORDERS. AX1> 
 
 FORMS, TO REGULATE rkOCEEULN'G.S. 
 
 By H. burton BUCKLEY, M..\., 
 
 OF LINCOLN'S INN, ESQ., ONE OP IlkM MAJKkTV* CuUMHU. 
 
 In two volumes, royal Svo, 7cxf., cloth, 
 THE LAW RELATING TO 
 
 SHIPMASTERS AND SEAMEN. 
 
 THEIR APPOINTMENT, DUTIES, PO\i'EKS, KIGITTS, LJAIilUTJES, 
 
 AND REMEDIES. 
 
 By JOSEPH KAY, Eso., M.A., Q.C., 
 
 OF TRIN. COLL. CA.MUKIOtiB, AND Of TUB MOKTMBRN Ciacl'IT ; 
 
 SOLICITOR-GENERAL OF THE COUNTY PALATINE OF DUKHAM*. ONK OF TMI Jl'DUa Of TWt CSOST OV 
 RBCORD FOR TMK Hl'NUKEU OF SALFuMI ; 
 
 AND AUTHOR OF " THE SOCIAL CONDITION AND EDtCATIOM Of TIMI 
 IN ENGLAND AND EL'RurK." 
 
 REVIEWS OF THE WORK 
 
 From the LnnSKPOOL JOURMAIj OF COMMEl'.CE. 
 
 " 'The law relating to Shipm.asters and Seamen ' work beinj; r'-..r. r' ■ 
 
 — such is the title of a voluminoiis and important index, an^i 
 
 work which has just been issued by Messrs. Stevens tics. . . . 
 
 and Haynes, the eminent law publishers, of London. to tkf ikif^ 
 
 The author is Mr. Joseph Kay, Q.C., and while ! port. 'I'hr >*^:^*^«, ■x.jcUm 
 
 treatinggenerally of the law relating to shipmasters \ leijal »tan' ^fc >nM (*•*•■•■• 
 
 and seamen, he refers more particularly to their ap- ' thai he ■»■■■■ ■■•• ••(Wmiy, amA 
 
 pointment, duties, rights, liabilities, and remedies. \ that the cax:» 'i>! u ' ' ) ■ .-r. ir» Jauitfi M t% %f m4t 
 
 it consists of two large volumes, the text otcupyinc I the poi3U oo wWb ba lou(i>ct>* 
 nearly twelve hundred pages, and the value of the I 
 
 From tba IjAW JOURNAIo 
 
 "The author tells us that for ten years he h.-vs 
 been engaged upon it. . . . Two large volumes 
 containing 1181 pages of text, 81 pages of .nppen- 
 dices, 98 pages of index, and upwards of 1800 cited 
 cases, attest the magnitude of the work designed 
 and accomplished by Mr. Kay. 
 
 "Mr Kay says that he has 'endeavoured 10 
 
 com;-: - 
 Jjle:. 
 Ilol '. 
 Iiv ^
 
 18 
 
 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Fourth Edition, in Royal 8vo, price 40J., cloth, 
 
 THE JUDGMENTS, ORDERS, AND PRACTICE OF 
 THE SUPREME COURT, 
 
 CniEFLV in RESPECT to ACTIONS ASSIGNED to the CHANCERY DIVISION. 
 
 By LOFTUS LEIGH PEMBERTON, 
 
 One of the registrars of the Supreme Court of Judicature ; and Author of " The Practice 
 
 in Equity by way of Revivor and Supplement." 
 
 "The work under notice ought to be of considerable ser\'ice to the profession The forms 
 
 throughout the work— and they are the most important element in it— appear to us to be accurate, and of 
 the most approved type. This fact alone will commend the new edition to practitioners in the Chancer>- 
 Division. There is a useful table of the Lord Chancellors and Judges at the beginning of the book, and a 
 very full index concludes it." — Law Times. 
 
 In demy i2mo, price 6j., cloth, 
 
 THE LAW OF SAVINGS BANKS SINCE 1878; I 
 
 With a Digest of Decisions made by the Chief Registrar and Assistant Registrars of . 
 
 Friendly Societies from 1878 to 1882, being a Supplement to the Law relating to [ 
 
 Trustee and Post Office Savings Banks. 1 
 
 By U. A. FORBES, of Lincoln's Inn, Barrister-at-Law. j 
 
 %* The complete work can be had, price \os. 6d., cloth. \ 
 
 In 8vo, price 15J,, cloth, 
 THE LAW AND PRACTICE RELATING TO 
 
 THE ADMINISTRATION OF DECEASED PERSONS 
 
 BY THE CHAN-CERY DIYISION OF THE HIGH COURT OF JUSTICE; 
 
 WITH AN ADDENDA giving the alterations effected by the NEW EULES of 1883. 
 
 And an APPENDIX OF ORDERS AND FORMS, Annotated by 
 
 References to the Text. 
 
 By W. GREGORY WALKER and EDGAR J. ELGOOD, 
 
 OK Lincoln's inn, barristers-at-law. 
 
 " All those having the conduct of administration 
 actions will find this work of great assistance ; it 
 covers the whole ground of the law and practice 
 from the institution of proceedings to the final 
 wind up." — Law Times. 
 
 " In this volume the most important branch of 
 the administrative business of the Chancery Divi- 
 sion is treated with conciseness and care. Judging 
 from the admirable clearness of expression which 
 characterises the entire work, and the labour which 
 has evidently been bestowed on every detail, we do 
 not think that a literary executorship could have 
 devolved upon a more able and conscientious repre- 
 sentative .... Useful chapters are introduced 
 in their appropriate places, dealing with the 
 
 ' Parties to administration actions,' ' The proofs of 
 claims in Chambers,' and ' The cost of adminis- 
 tration actions.' To the last-mentioned chaptei wc 
 gladly accord special praise, as a clear and succinct 
 summary' of the law, from which so far as we have 
 tested it, no proposition of any importance has been 
 omitted .... An elaborately constructed table 
 of cases, with references in separate columns to all 
 the reports, and a fairly good index, much increase 
 the utility of the •*.'OxV."^Solicitors' Joinnnl. 
 
 " This is a book which will supply a want which 
 ha-s long been felt .... As a practical manual 
 for the counsel in practice, it will be found ex- 
 tremely useful. It is full, fairly concise, cltar, 
 and exact. The index is good." — Law Jourtial. 
 
 In Foolscap 8vo, superfine paper, bound in Vellum, price 3J-. 6</. nett. 
 *„* A limited nu7)iher of copies have been printed upon large paper, price Ts. 6d. nett. 
 
 SCINTILLAE JURIS. 
 
 By CHARLES J. DARLING, Q.C., IM.P. With a Frontispiece and Colophon by 
 Frank Lockwood, Q.C, M.P. Fourth Edition (Enlarged). 
 
 " 'Scintillae Juris' is that little bundle of humorous essays on law and cognate matters which, since the 
 day of its first appearance, some years ago, has been the delight of legal circles. ... It has a quality 
 of style which suggests much study of Bacon in his lighter vein. Its best essays wou!d not be unworthy of 
 the Essays, and if read out, one by one, before a blindfolded connoisseur, might often be assigned to that 
 wuiiuertul book." — Daily Ktnus.
 
 STEVENS &^ JIAYNES, BELL YAfii), TEMPLE BAR. \% 
 
 Second Ediiion, in 8vo, piicc 35.., ckHh, 
 TlIK I'klNCII'I.KS OK 
 
 THE LAW OF RATING OF HEREDITAMENTS 
 
 IN TlIK ULLLrAllo.N oh t -i.M J'AN | Kb. 
 Bv J. H. BALFOUR imoWNE, 
 
 OK I UK MlliKLB 
 
 And D. N. McNAUtiMTUN. of ihc ,.Ur. |U„. 
 
 "The tables and specinicn valuation* which are 
 printed in an appentfix to this volume will be of 
 great service to the parish aulhuritics and lo the 
 legal practitioners who may have to deal with the 
 rating of tho'^: properties which arc in ihc i» cuiw- 
 tion of Companies, and we congnilnlate Mr. llr„»ric 
 on the production of a clear and concise book of 
 the system of Company Rating. Them in no doubt 
 
 In 8v(i, 1S75, j.ricc 7/. 6./.. cl.-th. 
 
 THE LAW OF USAGES & CUSTOMS: 
 
 ^ ^Iracticiil JTato ffratl. 
 By J. H. BALFOUR HROWNK, 
 
 OF Till-; MIIiDIK TEMhUt, y.l. 
 
 "We look upon this treatise as a valuable addition to worki wnilen oo iIm ScMca of tmm ' 
 
 Lcviu jfoitrnai. 
 
 "As a tract upon a ver>' troublesome department of Ijw it i« admi • • ■ ... 
 
 sourid, the illustrations are well chosen, and the decisions and iinla - 
 distinguished when necessarj-." — Irish Linv Timtt. 
 
 " As a book of reference we know of none so comprehend- - ' 
 Common Law In this way the book is invaluable 10 tlK 
 
 Inonevuhnnc, S\(), 1S75, i.iiii 1,'^ 
 
 THE PRACTICE BEFORE THE RAILWAY COMMISSIONERS 
 
 UNDER Till-: RKOULATION UF RAIIAV.W A' 1 ■>. i>-;\ \S' ^ 
 With the Amended General Orders of the Commisvj. 
 of Fees: together with the Law of L'nduc I'n 
 of the Railway Commis,sioncrs, Notes of their 1 '< > . 
 Forms of Applications, Answers and Replies, and Aj'; 
 
 By J. H. BALFOUR BRo.. :w., 
 
 OF THE MIUl>LE TBMfLK, g.C, 
 
 " Mr. Browne's book is handy and convenient in 
 form, and well arranged for the purpose of refer- 
 ence : its treatment of the subject is fully anil 
 carefully worked out : it is, So far as we have been 
 able to test it, accurate and trustworthy. It is the 
 
 and ill' 
 
 In 8vo, 187^. ]irice 7'. 6. , 
 
 ON THE COMPULSORY PURCHASE OF THE UNDERTAKINGS 
 OF COMPANIES BY CORPORATIONS, 
 
 And the Practice in Relation to the I'.iss.ngc of jJilK f..r 1 ■ ' iv P-rrr^s** ihmogS 
 Parliament. By J. H. Bai four liKuW.NE, of the ^' 
 
 "This is a work of considerable importance to .ill ; both '"V l*-* ■ 
 Municipal Corporations, and it is hardly too much to u 
 say that every member of these bodies should have i 
 a copy by him for constant reference. Prol>;ibly at 
 
 no very distant date the property of all the c\i<im>: ' -•■" - .- . 
 
 gas and water companies will pass under municiiial - ■< ww ««M( «*• 
 
 control, and therefore it is exceeduigly de^ir.iblc '""^ „ ""^ """ 
 
 that the principles and conditions under whitli ••uch • ....._.. 
 
 transfers ought to be made should !)e clearly under- i 
 stood. This task is made easy by the present volume ] 
 The stimulus for the publ cation of such a work | ■ 
 was given by the action of the l'arli.unent.iry 
 Committee which last session p.-Ls.sed the prc.iml.k 
 
 ofthe 'Stockton and MiddlesboroughCoriH.rationt , *■■"■•'• .•".■•'•- \^ '" 
 Water Bill, 1876." The volume accordinsly con- fubjcct with wteidi it » •**» 
 tains a full' report of the case as it was prcscnlct. |
 
 20 
 
 STEVENS dr* HAYNES, BELL YARD, TEMPLE BAR. 
 
 In 8vo, 1878, price 6j., cloth, 
 THE 
 
 LAW RELATING TO CHARITIES, 
 
 ESPECIALLY WITH REFERENCE TO THE VALIUITY AND CONSTRUCTION OF 
 
 CHARITABLE BEQUESTS AND CONVEYANCES. 
 
 By FERDINAND M. WHITEFORD, of Lincoln's Inn, Barrister-at-Law. 
 
 "The Law relating to Charities by F. M. 
 Whiteford contains a brief but clear exposition of 
 the law relating to a class of bequests in which the 
 intentions of donors are often frustrated by un- 
 acquaintance with the statutory provisions on the 
 subject. Decisions in reported cases occupy a 
 
 large portion of the text, together with the ex- 
 planations pertinent to them. The general tenor 
 of Mr. Whiteford's work is that of a digest of Cases 
 rather than a treatise, a feature, however, which 
 will not diminish its usefulness for purposes of 
 reference."— Z.<x7j' Magazine and Rerieiu. 
 
 In 8vo, 1S72, price 75. 6(/., cloth, 
 AN EPITOME AND ANALYSIS OF 
 
 SAVIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW. 
 
 By ARCHIBALD BROWN, M.A. 
 
 EDIN. AND OXON , AND B.C.L. OXON., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW. 
 
 "Mr. Archibald Brown deserves the thanks 
 ol all interested in the science of Law, whether 
 as a study or a practice, for his edition of 
 Herr von Savigny's great work on ' Obligations.' 
 Mr. Brown has undertaken a double task — the 
 translation of his author, and the analysis of his 
 author's matter. That he has succeeded in reducing 
 the bulk of the original will be seen at a glance ; 
 the French translation consisting of two volumes, 
 with some five hundred pages apiece, as compared 
 with Mr. Brown's thin volume of a hundred and 
 
 fifty pages. At the same time the pith of Von 
 Savigny's matter seems to be very successfully pre- 
 served, nothing which might be useful to the 
 English reader being apparently omitted. 
 
 ' The new edition of Savigny will, we hope, be 
 extensively read and referred to by English lawyers. 
 If it is not, it will not be the fault of the translator 
 and epitomiser. Far less will it he the fault of 
 Savigny himself, whose clear definitions and accu- 
 rate tests are of great use to the legal practitioner." 
 — Law youmal. 
 
 THE ELEMENTS OF ROMAN LAW. 
 
 Second Edition, in crown 8vo, price 6s., cloth, 
 A CONCISE DIGEST OF THE 
 
 INSTITUTES OF GAIUS AND JUSTINIAN. 
 
 With copious References arranged in Parallel Columns, also Chronological and 
 
 Analytical Tables, Lists 0/ Laws, ^'c. &^c. 
 
 Primarily designed for the Use of Students preparing for Examination at 
 
 Oxford, Cambridge, and the Inns of Court. 
 
 By SEYMOUR F. HARRIS, B.C.L., M.A., 
 
 WORCESTER COLLEGE, 
 
 OXFORD, A.ND THE INNER TEMl'LE, BARRISTER-AT-LAW, 
 AUTHOR OK " UNIVERSITIES AND LEGAL EDUCATION." 
 
 " Mr. Harris's digest ought to have v,rry gi-eat success atnong law students both in the 
 Inns of Court and the Universities. His book gives evidence of praiseworthy accuracy 
 ana laborious condensation." — Law Journal. 
 
 " This book contains a summary iti English of the elements of Roman Law as contained 
 in the works of Gaius and fustinian, and is so arranged that the reader can at once see 
 what are the opiniotts of either of these two luriters on each point. From the very exact 
 and accurate references to titles and sections given he can at once refer to the original 
 writers. The concise manner in which Mr. Harris has arranged his digest will render 
 it most useful, not only to the students for whom it 'Mas originally written, but also to those 
 persons who, though they have not the time to wade through the larger treatises of Postt, 
 Sanders, Ortolan, and others, yet desire to obtain some knowledge of Roman Law." — 
 O.xFORD AND Cambridge U-ndrrgraduates' Journal. 
 
 " J/r. Harris deserves the credit of hcving produced an epitome which will be of service 
 to those numerous students who have no time or sufficient ability to analyse the Institutes 
 for themselves." --\.\\\ T1MF..S.
 
 ^OffA'S FOR LAIV STUDSt/TS. 
 
 t\ 
 
 Fourth Edition, in 8vo, pricp jt/ rl.-.fh, 
 
 ENGLISH CONSTITUTIONAL HISTORY: 
 
 FHOM THE TF.UTONIC IXVASlvS To THE PfcE'JM ' -.* 
 S'raiflnfb ns a Tfxt-booh for ^tntirnie «nb 0lhrr*. 
 Bv T. P. TAS\VP:LL-LANGMKAr), U.CU 
 
 OP LINCOLN S INK. "-"'ST.H. ATa.W. ,.,«MK..,V V.S„M. .H.H^. ,. T«. . /....„TT 
 
 ANi. LATK IKOKKSM.K „r < ..^^ n I r Tins *,. tAW AMD Muro*. 
 
 IMVKHMTV toLLIIi.l!, li.NKOM. 
 
 Fourth Edition, Revised throunhout. with Note arKl Appcni.cc. 
 By C. H. E, CARMrciiAEi, M.A. Oxom, 
 
 o« louncl as useful as its predecessors to the atRe cla». of rra.len .nd uiHl«tii' 
 accurate knowledge of the history of the cons.i.u.ion."_/.^«. rVml, ' 
 
 add m„rh'",?f i'h "''"'^.^''Sour of ,ts stj;le. The e.li.orial ron.r.bul.,^.. „f \U. C*,n.H h-i «, ,.^«^ ^ 
 
 .. 4^u '°, '^= ^■•■*'"'= '^'^ ^^'^ work.'— .?.„//,i>i /,„«, AVift.. J««»««^ >M 
 
 , l,t=y'°''r*'" continue to hold the field as the lHrMcla»».l.,,lt ,., t',,..,' ,, ■ . -.-ii..,.^ »,-,-, 
 
 Inebookis well known a.s an admirable introduction to I' ^ .4Mli •» 
 
 f^l t' • „•, '^''■- ^^'■""c''»«' ■■>PI''''"<'>hAvedonethe » 
 
 r »« -r 11 » ....v.. ...>., ,.^,n:.>is II. nave uone ine » 
 
 ..n.'. ^^^^f""'"''"Smead, with care and judKmeni.--/.rtt.. , 
 
 I he work before us it would be hardly p,>ssit,|e to t.raise I t-«. ' 
 
 and size, It would be difficult to find anj-thinR letter on th- * hMarrTM 
 
 constitutional growth as a complete story, than this volume • ,,^ 
 
 As It now stands, we should find it hard lo name a U:ni ic*t U*A -a > ~< i-h C« 
 History. —Solicitors Journal. ~ 
 
 ;■ Mr Taswell-Langmead's compendium of the ri*e and developiMnl of iha F.ii(lkli CoW 
 
 evidently supplied a want The present Edition is Kreatly impcuvrd. . . . Wt Ka«« w> I 
 
 say'JJg that It is a thoroughly good and useful work."— .\>-,/,i/<»r. 
 
 We think Mr. Taswell-I^ngmead may be congratulated upon havinc roapiM iii ■[■■lauii aw^ af 
 conspicuous merit."— /'rt//yT/rt//(;rjs^//,'. 
 
 • I nV" ^ "1^'^^' careful, praiseworthy digest and manual of all conwiiutiocuil htuory aixi U».'— Cii^. 
 I he volume on English Constitutional Histor>-, by Mr. Taiwell-I^ncmeul w «t.xtly wkAl Mck • 
 history .should be."— .SVrtnf/arrf. 
 
 •k'^' w Taswell-Langmead has thoroughly prasped the l>earin(:« of hit «ul.j«t ll »«. t wnw . la -f-i't-n 
 with that chief subject of constitutional history— parliamentary KuvemnKnl— Uuu liM wwfc «»lHtat* ■• 
 great superiority over its rivals."— .,4 <;rt//<'»fy. 
 
 Second Edition, in 8vo, price 6-., cl-'h. 
 
 HANDBOOK TO THE INTERMEDI.\TE AND 
 FINAL LLB. OF LONDON UNIVERSITY : 
 
 (PASS AND HONOURSi. 
 Including A COMPLETE .SUMM.XKV OF "AUSTINS irkl>r! 
 AND THE EXAMINATION rAI'ERS ok LATE YEARS is ALL 1 - 
 
 Bv A B.A., LL.IJ. {Lond.\ 
 
 " Increased in size and usefulness. . , . The- *.--x>k will un.l KiMcdly Se of kHp «■> iK-.^ i4»'.«» • 
 who prepare themselves for examination. . . . The Appendix cooloin* a Sf.«ml >«l*<ii «■- nrf {•>««>• 
 set at the different examinations." — Laiv Timtt. 
 
 In Crown 8vo, price 3.f. ; or Interleaved lor Noie«, price v* 
 
 CONTRACT LAW. 
 
 QUESTIONS ON THE LAW OF CONTRACTS. With Not« to TUB 
 
 Answers. Fouudcd on " Ahsch," " CHitty," amJ " /Wi*ti.^ 
 
 By Philip Foster Ai-drrd, D.C.L.. Hertford College aixl Craj'i loa : U'^ 
 
 Examiner for the University of Oxford. 
 
 " This appears to us a very admirable selection of qumiooi, or> mp«fini fa jogrmUy^ ^wV >* * «»«•«• 
 
 run of those set in examinations, and u.»eful for the purpow of icMing proftw^ L^» Jjii-iiH
 
 22 WORK'S FOR LAW STUDENTS. 
 
 Ninth Edition, in 8vo, price 2^s., cloth, 
 
 THE PRINCIPLES OF EQUITY. 
 
 INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. 
 
 By EDMUND H. T. SNELL, 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW. 
 
 NINTH EDITION. 
 By ARCHIBALD BROWN, M.A. Edin, & Oxon., & B.C.L. Oxon., 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, AUTHOR OF "a NEW LAW DICTIONAKV " 
 "an ANALYSIS OF SAVIGNV ON OBLIGATIONS," AND THE "LAW OF FIXTURES." 
 
 REVIEWS. 
 
 "This is the Ninth Edition of certainly one of the best, and probably the most widely read, text-boolc 
 which deals with any part of the English law."— Cr/i^rrf Magazine. 
 
 " Students will find no better book than this to assist them in preparing for the ordeal of examination." 
 — Law yournal. 
 
 " It is ample proof of the popularity of ' Snell's Principles of Equity,' that it has now reached its Ninth 
 Edition in the hands of Mr. Archibald Brown." — Law Times. 
 
 " This is now unquestionably the standard book on Equity for ?.t\iAsn\.;,."—Saiur({ay Review. 
 
 " On the whole we are convinced that the Sixth Edition of Snell's Equity is destined to be as highly 
 thought of as its predecessors, as it is, in our opinion, out and out the best work on the subject with which 
 it deals." — Gibson's Law Notes. 
 
 "The changes introduced by the Judicature Acts have been well and fully explained by the present 
 edition of Mr. Snell's treatise, and cverjthing necessary in the way of revision has been conscientiously 
 accomplished. We perceive the fruitful impress of the 'amending hand' in every page; the results of 
 the decisions under the new system have been carefully explained, and engrafted into the original text ; 
 and in a word, Snell's work, as edited by Mr. Brown, has proved the fallacy of Bentham's description of 
 Equity as ' that capricious and inconsistent mistress of our fortunes, whose features no one is able to 
 delineate.' " — Irish Law Times. 
 
 " We know of no better introduction to the Principles of Equity.^ — 
 Canada Law Journal. 
 
 " Within the ten years which have elapsed since the appearance of the first edition of this work, its 
 reputation has steadily increased, and it has long since been recognised by students, tutors, and practitioners, 
 as the best elementary treatise on the important and diflncult branch of the law which forms its subject. 
 — Law Magazine and Reznevj. 
 
 In 8vo, price 2s., sewed, 
 
 QUESTIONS ON EQUITY. 
 
 FOR STUDENTS PREPARING FOR EXAMINATION 
 
 FOUNDED ON THE NINTH EDITION OF 
 
 SNELL'S "PRINCIPLES OF EQUITY." 
 By W. T. WAITE, 
 
 BARRISTF.R-AT-LAW, HOLT SCHOLAR OF THE HONOURABLE SOCIETY OF GRAV'S INN. 
 
 Third Edition, in 8vo, price 6j., cloth limp, 
 
 AN ANALYSIS OF SNELL'S PRINCIPLES OF 
 
 EQUITY. Founded on the Ninth Edition. With Notes thereon. 
 
 By E. E. Blyth, LL.D., Solicitor. 
 
 " Mr. Blyth's book will undoubtedly be very useful to readers of Snell." — Law Times. 
 " This is an admirable analysis of a good treatise— read with Snell, this little book will be found very 
 profitable to the student." — Law lournal.
 
 WOK/CS FOR I.Aiy STUDEf/TS. 
 
 Second Kdiiion, in mu- volume, Svo, price |8;., cl-.-Ji, 
 
 PRINCIPLES OF CONVEYANCING, 
 
 AN Ef.EMEXTAKV irOA'A' JVA THE LSE VE :>JVP£XTS. 
 13 V HENRY C DEANK. 
 
 OF Lincoln's inn, darrister-at-law, soMrriMR ijutthik* to tub iMcoaro* 
 
 op THK L'MTBU KIMUIauM. 
 
 ''We hope to see this book, like Snell's Equity, a tfatUarJ tltuiht^i im mil Imw Stkmli 
 
 :okerc English la-.v is taught."— Canwa Law Jol'r.nau 
 
 " We like tlie work, it is well written and i* an " In ih» (**"• ••••'»> >»•»• Um .»•»*.••• W« 
 
 excellent student's book, and heinR only just pub- j>^ -^ . ..> .. . . . ,. . 
 
 lished, it has the great advantage of having in it all 1 
 
 the recent important enactments relating to convey- Ir 
 
 ancing. It possesses also an excellent index." — t 
 
 Law Students' youmai. n 
 
 " Will be found of great use to students entering )■ 
 
 upon the difTiculties of Real Property Law. It ha* a:. ...k ....,-.-. .- ...- 
 
 .tn unusually exhaustive index covering some fifty cditinr. '««n fuity kt^ sy •■ ikM 
 
 pages." — Lniu Times. second ' ,i/. 
 
 Fourth Edition, in Svo, ntarljt rtady. 
 A SUMMARY OK THK 
 
 LAW & PRACTICE IN ADMIRALTY. 
 
 FOR THE USE OF STUDENTS, 
 By EUSTACE SMITH, 
 
 OF THE INNER TEMPLE; ATTIIOR OF "a SlMMAkV .1 ■ -r..* I »« 
 
 " The book is well arranged, and forms a good introduction to the - "^ , 
 
 " It is however, in our opinion, a well and carefully written liiilr .. :>»»«l» of 
 
 every student who is taking up Admiralty Law at the Kin.il."' _ __^ 
 
 " Mr. Smith has a happy knack of compressing a large am.^ ""^ P** *- ***. 
 
 present work will doubtless be received with satisfaction e<^ual i '• >— *"> 
 
 has been mtx.."— Oxford attd Cambridge UtuUrgraduaUt Jottrt-t:. 
 
 Third Edition, in Svo, price ^s. 6,1., cl.-ih. 
 A SUMM.\KV OF TUF 
 
 LAW AND PRACTICE IN THE ECCLESIASTICAL COURTS. 
 
 FOR THE USE OF STUDENTS. 
 By EUSTACE SMITH, 
 
 OF THE INNER TEMPLE; AVTHOR OF "a SIMMAKV OK C.-VfANV i-AW," Afc. 
 THE LAW AND PRAtTlCK IS Al^NIKALTV. 
 
 " His object has been, as he tells us in his preface, to give the «udr«. '^'^ ^'^T'IT^ <^J^ ^^^ 
 of the scope and extent of ecclesiastical law, of the pnn. iple* on « -^ 
 
 which it is enforced, and the procedure by which. .hc« •-";-- 
 fulfils its object. Its value is much enhanced by a profuse uuil 
 contained in it."— Bar Examination Journal. 
 
 Fourth Edition, in Svo, |.iice 7;. 6-.'., cLth, 
 
 AN EPITOME OF THE LAWS OF PROBATE AND DIVORCE. 
 
 FOR THE USE OF STUDE.VJS FOR HONOURS EX A. Ml NAT/OS. 
 By J. CARTER HARRISON, Solicitor. 
 
 " The work is considerably enlarged, and we think improv«l. ^ wlH b. fo-a o* C— 
 
 students."-Xa7y Students Joumai.
 
 21 irO£A'S FOR LA IV STUDENTS. 
 
 Sixth Edition. In one volume, 8vo, price 20^., cloth, 
 
 PRINCIPLES OF THE COMMON LAW. 
 
 INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. 
 SIXTH EDITION. 
 
 \\\ JOHN INDERMAUR, Solicitor, 
 
 AUTHOR OF "a manual OF THE PRACTICE OF THE SUPREME COURT," 
 " EPITOMES OF LEADING CASES," AND OTHER WORKS. 
 
 "The present edition of this elementary treatise has been in general edited with praise- 
 worthy care. The provisions of the statutes affecting the subjects discussed, which have 
 been passed since the publication of the last edition, are clearly summarised, and the effect 
 of the leading cases is generally very well given. In the difficult task of selecting and 
 distinguishing principle from detail, Mr. Indermaur has been very successful ; the leading 
 principles are clearly brought out, and very judiciously illustrated."— ^oZ/Vi/or/ Journal. 
 
 " The work is acknowledged to be one of the best written and most useful elementary 
 works for Law Students that has been published." — Law Times. 
 
 " The praise which we were enabled to bestow upon Mr. Indermaur's very useful com- 
 pilation on its first appearance has been justified by a demand for a second edition." — 
 Law Magazhu, 
 
 " We were able, four years ago, to praise the first edition of Mr. Indermaur's book as 
 likely to be of use to students in acquiring the elements of the law of torts and contracts. 
 The second edition maintains the character of the book." — Lata Journal. 
 
 "Mr. Indermaur renders even law light reading. He not only possesses the faculty 
 of judicious selection, but of lucid exposition and felicitous illustration. And while his 
 works are all thus characterised, his ' Principles of the Common Law ' especially displays 
 those features. That it has already reached a second edition, testifies that our estimate of 
 the work on its first appearance was not unduly favourable, highly as we then signified 
 approval ; nor needs it that we should add anything to that estimate in reference to the 
 general scope and execution of the work. It only remains to say, that the present edition 
 evinces that every care has been taken to insure thorough accuracy, while including all 
 the modifications in the law that have taken place since the original publication ; and that 
 the references to the Irish decisions which have been now introduced are calculated to 
 render the work of greater utility to practitioners and students, l>o//i English and Irish." 
 — Irish Law Times. 
 
 "This work, the author tells us in his Pre/ace, is -written mainly with a view to the 
 examinations of the Incorf orated Law Society ; but we think it is likely to attain a wider 
 usejulness. It seems, so far as we can judge from the farts we have examined, to be a 
 careful and clear outline of the principles of the common law. It is very readable ; and 
 not only students, but many practitioners and the public, might benefit by a perusal of Us 
 /flf«."— Solicitors' Journal.
 
 IVORh'S FOR LA IV SrC/DSATTS. 
 
 liftli K.lition, in 8vo, price la/. 6^., cloih, 
 
 A MANUAL OF THE PRACTICE OP THE SUPREME COURT OP JUDICATURE, 
 
 IN TIIK (jrr.I.NS l;i N( II AM. (HAS- li;v MM !..\. 
 lutendfd for the inf of Sludntti an.i tk* />t/nimi. 
 Ky John Inkfrmair, S..lirit.., 
 
 " The second fdilion has followed quickly upon the fini whict. . 
 Rood evidence that the l>ooW ha* l«:cn foiim! ttv-f,,) |, ...n- . 
 studentwhomastersthecontemsloiuriii.il' 
 
 " This is a very useful student's liooU. Ii 
 requires, without bewilderinR him with dei;i! 
 excellent introduction to the clement* of jiir ,,, 
 articled clerks, but also by pupils entering the char. 
 
 Seventh F.diiiun, in ,S\.., ],|-.,. d , , : •!;, 
 
 AN EPITOME OF LEADING COMMON LAW CASES; 
 
 WITH SOMK SHORT NOTKS THKKKON. 
 Chiefly intended as a Cuide to " SMinrs Lkai.is<; Casks." Hy Jr>u^ Imdumavi. 
 
 Solicitor (Cliflord's Inn rrizcman, Michadm** Term, iJtjj). 
 "We have received the third edition of the ' p:pi(ome of Ij-n.lir.j (■•■,,-. n I :». f*4#, • V* Vfr la^M. 
 maur, Solicitor. The first edition of this work was puhlis!^ : ,l,,i 
 
 and now we have a third edition dated September, 1875. '. .» a 
 
 furnished than the fact that in less than three years it has i- 
 
 Seventh Kdition, in Svn, pruc 6/., cl<>lh, 
 
 AN EPITOME OF LEADING CONVEYANCING AND EQUITY CASES; 
 
 WITH SOME SHORT NOTKS THKRKuN, loR THK r>K oj sTll 'J .\T.S. 
 
 By John Indermaur, Solicitor, Author of "An K})it(>n)c o( Loulii^ 
 
 Common Law Casts." 
 
 "We have received the second edition of Mr. Indermaur't very uatftd FiJliil of Laatffalg Ciwwy 
 
 ancing and Equity Cases. The work is verj- well done."— /-.itt' / imn. 
 
 "The Epitome well deserves the continued patronage of the cU<t -Stu«fant i far wlwi il U •McWIy 
 intended. Mr. Indermaur will soon lie known as the ^Students' FncrHl.' " frT^i Lam ^■vmmL 
 
 Fifth Edition, in 8vo, price 5/. 6./., cloth, 
 
 SELF-PREPARATION FOR THE FINAL EXAMINATION. 
 
 CONTAINING A COMPLETE COURSE OK STII'V, WITH STATUTKS. 
 CASES AND nUESTIUNS ; 
 And intended for the use of those Article<l Clerks who read \>y ihcm%«l«T«. 
 By John Inukkmair, Solicitor. 
 "In this edition Mr. Indermaur extends his counsels to the »hole pvriod fnm |K« Im« 
 examination to the Final. His advice is practical and sensible : »nd if the tourw o< utvly K« >«<< 
 is intelligently followed, the articled clerk will have laid in a store i.f lrc»l k>vj»W«l5« ma*^ iImb i 
 to carry him through the Final Examination." — Solicitfri' Jourmtl. 
 
 " This book contains recommendations as to how a complete <;->urse «( tiody fnr the •(••«« «a 
 should t)e carried out, with reference to the particular l>ooks to !•■ rt-ad unmttm. W* r>r»d M 
 that it is essential for a student to be set on the riRht track in ' -- • ■ ' •^-' >• . ^- ^ .-.-.»....- 
 
 ability, who follows the course set out by Mr. Indennaur, oukIh 
 
 Koiirth Kditiun, in 8v'>, pri. . • , 
 
 SELF -PREPARATION FOR THE INTERMEDIATE EXAMINATION. 
 
 As it at present exists on Stephen's Commentaries. Containing a > 
 Study, with Statutes, (Questions, and Advice as to j«^.riion» ^AxY 
 be omitted, and of portions to which special .t 
 whole of the Questions and Answers at the I 
 have at present l)ccn held on Stephen's Commi:. ••: , 
 all Articled Clerks who have not yet passed the Inirrmoliair 1 
 John Indermai'R, Author of " Trinciples of Common Law," » ' 
 
 In 8vo, 1875, price 6/., clolh, 
 
 THE STUDENTS' GUIDE TO THE JUDICATURE ACTS. 
 
 AND THE RULKS TIIKKKCNDKR: 
 
 Being a book of Questions ami Answers intcmlcsl for the u»« o( Law StwknU. 
 
 By John Indermaur, Solicitor.
 
 26 WORKS FOR LAW STUDENTS. 
 
 Fourth Edition, in Crown 8vo, price %s. 6d. , cloth, 
 
 A SHORT EPITOME OF THE PRINCIPAL 
 
 STATUTES RELATING TO CONVEYANCING, extending 
 
 FROM 13 Edw. I. TO THE E.ND OF 48 VICTORIA, Cap. 4. Intended for the Use 
 of Students and Practitioners. Fourth Edition, Enlarged. By George Nichols 
 Marcy, of Lincoln's Inn, Barrister-at-Law. 
 
 Second Edition. In 8vo, price 26s. , cloth, 
 
 A NEW LAW DICTIONARY, 
 
 AND INSTITUTE OF THE WHOLE LAW ; 
 
 EMBRACING FRENCH AND LATIN TERMS AND REFERENCES TO THE 
 AUTHORITIES, CASES, AND STATUTES. 
 
 SECOND EDITION, revised throughout, and considerably enlarged. 
 
 By ARCHIBALD BROWN, 
 
 M A. EDIN. ANDOXON., AND B.C.L. OXON., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF 
 THE "law of fixtures," "ANALYSIS OF SAVIGNY'S OBLIGATIONS IN ROMAN LAW," ETC. 
 
 Reviews of the Second Edition. 
 
 "So far as we have been able to examine the work, it seems to have been most carefully 
 and accurately executed, the present Edition, besides containing much new matter, having 
 been thoroughly revised in consequence of the recent changes in the law ; and 7L<e have no 
 doubt whatever that it xuill be found extremely useful, not only to stitdcfits and practitioners, 
 I ut to public men, and tnen of letters." — Irish Law Times. 
 
 "Mr. Bro-cvn has rroised his Dictionary, and adapted it to the changes effected by the 
 judicature Acts, and it no-iu constitutes a very useful work to put into the hhnds of any 
 student or articled clerk, aiui a work which the practitioner 7uill fijid of value for refereme." 
 — Solicitors' Journal. 
 
 " // will prove a reliable guide to law students, and a handy book of reference for 
 practitioners.'' — Law Times. 
 
 In Royal 8vo., price 5.f., cloth, 
 
 ANALYTICAL TABLES 
 
 OF 
 
 THE LAW OF REAL PROPERTY; 
 
 Drawn up chiefly from STEPHEN'S BLACKSTONE, with Notes. 
 By C. J. TARRING, of the Inner Temple, Barrister-at-Law. 
 
 CONTENTS. 
 
 Table I. Tenures. i Table V. Uses. 
 
 II. Estates, according to quantity of yi. Acquisition of Estates in land of 
 
 ,,. ^ Tenanu Interest. freehold tenure. 
 
 ,, III. Estates, according to the time at ,„, , , tt ■• 
 
 which the Interest is to be enjoyed. ] » ^11. Incorporeal Hereditaments. 
 
 ,, IV. Estates, according to the number and ! ,, VIII. Incorporeal Hereditaments, 
 
 connection of the Tenants. ' 
 
 "Great care and considerable skill have been shown in the compilation of these tables, which will be 
 found of much service to students of the Law of Real Property."— Z.at« Times.
 
 IVO Kh'S /.'OK i^^ iy STUDE//TS. 
 
 Fifth Edition, in 8v... ,,ncr 2q, , rl.,fh 
 
 PRINCIPLES OF THE CRIMINAL LAW. 
 
 INTENDED AS A LUCID EXPOSITION OF 77/ 
 
 THE USE OF STUDEXTS AXD THE /'A-, ...,./< -.v 
 
 By SEYMOUR F. HARRIS, liCU. M ^ <- \ 
 
 AUTHOK OK "A CONCISE DIGEST O, TH« .H,T.TUT« Or^.U. 
 
 FIFTH EDITION. 
 Bv AVIKT AGABEG.ofthe Inner Temple. IUrm,er.|.Uw. 
 
 REVIEWS. 
 "Has proved to be a most popular a.ul i.5crul work. It u but ih.. 
 nubhshed ; now we h.ive the k^ produced under the comUcni .ui« > ■ ** ^^ 
 
 can quite understand the popularity of this trc;ui.sc. l,Uwri»en,„'^^^ , ', •_?^ 
 
 admirably arranged."— Zrtw Times. " i» wmicn in a . .r^r ..Jr „ ,. < ,ule.!W, mmI 4« 
 
 " This is the Fifth Edition within twelve year?, of a vrrv ,,,„,; .1 . i ., ■ s l .^ . . . . 
 
 . lementary introduction ; pleasamly readable throuKhour ' -' r« 
 
 lies ; with an excellent tabular statement of crimes .ind i. T^T* 
 
 ■ •, ■^P'*:""<^''y'° ''^'■ecommended to persons who arc . >•<»"- 
 
 to the Criminal Law."-C\r>n/ Mngazini. " ' " ' ' ' ' '""' '' -■•—*«»-• 
 
 r^^ favourable opinion we e.xprtssed of the first editton of iKu :.sv I ,,♦..,.,,, .v *.«, 
 je.n justified by the reception it has met with. Lockinc throurh th,> mr 
 no reason to modify the praise we bestmved on the former EdUun //.. 
 been added and the provisions of the Summary Jurisdutio,, A.t art nctu < , ,„ ."., . i^i„ 
 '■elating to Summary Convictions. The book is one of the best manuaJ. cf Cnm.mJUm 
 /or the student. —Solicitors' Journ.\l. 
 
 "There is no lack of Works on Criminal I.au', but there u'at room ftr tm*A m uit/uJ 
 
 hattdbook of Principles as Mr. Seymour Harris has suf"-- • ' - -^ ■ '-----■ 
 
 labours, to the task of analysing the laxv, Mr. Harris 
 
 work qualifications well adapted to secure the successful . 
 
 he had set before him. That object is not an ambitious om, joi •: 
 
 above utility to the young practitioner and the student. For hc'h 
 
 yet wider class who may require a hook of reference on t' 
 
 a clear and convenient Epitome of the I.a-w. A notic, . 
 
 which is likely to prove of assistance both to the practU: ,. 
 
 Fable of Offences, with their legal character, their pumshmuH:. 
 it is inflicted, together with a reference to the pages where a -V 
 found." — Law Magazi.ne and Review. 
 
 "This work purports to contain 'a concise exposition of the nntiirr of mmr, thr raH-rtt ^rr,rr% r '* 
 able by the English law, the law of criminal procedure, . I' ' ' 
 
 of offences, punishments, and statutes The work Ls divi;. 
 divisions and essentials; of persons capable of commiii 
 Hook II. deals with offences of a public nature ; offences .. 
 property of individuals. Each crime is d:scu.sicu in its i 
 consistently with a proper explanation of the lejjal ch;u 
 explains criminal procedure, including the jurisdiction M i 
 and trial of criminals from arrest to punishment, llil^ 
 description of the tri.il being excellent, and ihorouKhly >..a. 
 
 liook IV. contains a short sketch of 'summary convictum^ {•rx.-.r n. .,ji.!! .;r. m .• .,,ii!i.i w.t» n%. i rx 
 table of offences at the end of the volume i.s most useful, and ibcr* i> a vvry full umIc*. Mtoftuhm w% 
 must congratulate Mr. Harris on his adventure." — /..tn- J,<ufH.tJ. 
 
 ''Mr. Harris has undertaken a work, in our cpin: 
 diminish its bulk in the next edition by obliterating fkf • 
 of his volume is as well timed as its execution is j j 
 ability of omission 'which is a good test of skill, .."• 
 criminal larv he has discreetly selected just so nn,. •. . m./ .. - .. .... •,.. . ..■ — ...... 
 
 has presented it in terms which render it capabU ef bcimg tastly laktn titl» tkt mtmd."~ 
 Solicitors' Jour.val.
 
 28 WORK'S FOR LAW STUDENTS. 
 
 Second Edition, in crown 8vo, price 5^. 6d., cloth, 
 
 THE STUDENTS' GUIDE TO BANKRUPTCY; 
 
 Being a Complete Digest of the Law of Bankruptcy in the shape of Questions and 
 Answers, and comprising all Questions asked at the Solicitors Final Examinations 
 in Bankruptcy since the Bankruptcy Act, 1883, and all important Decisions since 
 that Act. By John Indermaur, Solicitor, Author of " Principles of Common 
 Law," &c., &c. 
 
 In i2mo, price $s. 6d., cloth, 
 
 A CONCISE TREATISE ON THE LAW OF BILLS OF SALE, 
 
 FOR THE USE OF LA\V\^ERS, LAW STUDENTS, & THE PUBLIC. 
 
 Embracing the Acts of 1878 and 1882. Part I.— Of Bills of Sale generally. Part II.— 
 Of the Execution, Attestation, and Registration of Bills of Sale and satisfaction 
 thereof. Part III.— Of the Effects of Bills of Sale as against Creditors. Part IV. 
 — Of Seizing under, and Enforcing Bills of Sale, Appendix, Forms, Acts, &c. 
 By John Indermaur, Solicitor. 
 
 "The object of the book is thoroughly practical. Those who want to be told exactly what to do and 
 where to go when they are registering a bill of sale will find the necessary information in this little book." 
 — Law Journal, 
 
 In 8vo, price 2s. 6d., cloth, 
 
 A COLLECTION OF LATIN MAXIMS, 
 
 LITERALLY TRANSLATED. 
 INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXAMINATIONS. 
 " The book seems admirably adapted as a book of reference for students who come across a Latin maxim 
 in their reading." — Law Journal. 
 
 In one volume, 8vo, price 95. , cloth, 
 
 LEADING STATUTES SUMMARISED, 
 
 FOR THE USE OF STUDENTS. 
 By ERNEST C. THOMAS, 
 
 BACON SCHOLAR OF THE HON. SOCIETY OF GRAY's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD; 
 AUTHOR OF " LEADING CASES IN CONSTITUTIONAL LAW BRIEFLY STATED." 
 
 Second Edition, in 8vo, enlarged, price 6j., cloth, 
 
 LEADING CASES IN CONSTITUTIONAL LAW 
 
 Briefly Stated, with Introduction and Notes. 
 By ERNEST C. THOMAS, 
 
 BACON SCHOLAR OF THE HON. SOCIETY OF GRAV'S INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD. 
 
 "Mr. E. C. Thomas has put together in a slim octavo a digest of the principal cases illustrating Con- 
 stitutional Law, that is to say, all questions as to the rights or authority of the Crown or persons under it, 
 as regards not merely the constitution and structure given to the governing body, but also the mode in 
 which the sovereign power is to be exercised. In an introductory essay Mr. Thomas gives a verj' clear and 
 intelligent survey of the general functions of the Executive, and the principles by which they are regulated ; 
 and then follows a summary of leading cases." — Saturday Review. 
 
 " Mr. Thomas gives a sensible introduction and a brief epitome of the familiar leading cases." — Law 
 Timts. 
 
 In 8vo, price 8j., cloth, 
 
 AN EPITOME OF HINDU LAW CASES. With 
 
 Short Notes thereon. And Introductory Chapters on Sources of Law, Marriage, 
 Adoption, Partition, and Succession. By William M. P. COGHLAN, Bombay 
 Civil Service, late Judge and Sessions Judge of Tanna.
 
 ■o 
 
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 Second Eilitiun, in crown Svo, price IZ/. U clolh 
 
 THE BANKRUPTCY ACT, '1883 
 
 With Notes ok ai.i. thk Casius i.k. ii.ui lm-i-k n.t A-r • ' 
 The CONSOLIDATKI) RULES ano FORMS. iS86 ■ The Debi...* a,-1 .t*- 
 
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 THERKUNOKR; the li.LLS OK Sa.K Ac' , S. ,878 ASM .si"; *""' 
 
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 Second Edition, by R. RINGWOOD, M..\., llarruter .tUw. 
 
 "This is a very handy edition of the A. t and kulc< The r,~. /— 
 
 references to corre.spond.ng provisions of the Act of ,86^ arecxcecdm,ly u*^2^ "^^^TwIl^^Jr! 
 full index, aLd the book is ad mirably printed/'-^V/ft/orf' Jo„rmti. ' ' •»"•••••«> 
 
 Part I., price 7/. 6./., scwcd, 
 
 LORD WESTBURY'S DECISIONS IN THE 
 
 EUROPEAN ARBITRATION. Rq-untJ l,) i-R,isas s. kuuv 
 
 of Lincoln s Inn, Barrister-at-Law. ' 
 
 Parts L, IE, and HE, price 25/., scwc<J, 
 
 LORD CAIRNS'S DECISIONS IN THE ALBERT 
 
 ARBITRATION. Reported by Fkancis S. Rkillv, of Uncoln"» Ion 
 Barrister-at-Eaw. ' 
 
 Second Edition, in royal Svo, price jar., doth, 
 A TREATISE ON 
 
 THE STATUTES OF ELIZABETH AGAINST 
 FRAUDULENT CONVEYANCES. 
 
 The Bills of Sale Acts 1878 and 18S2 and thk. LAW OK VOLUNTARY 
 DISPOSITIONS OF PROrERTV. 
 
 By the late H. W. MAY, B.A. (Ch. Ch. Oxford), 
 
 Second Edition, thoroughly revised and enlarged, by S. Worthim;ion WDhthincton. 
 of the Inner Temple, Barristcr-at-Law. Editor of the " .Marric\l Wotnco'* 
 Property Acts," 5th edition, by the late J. R. (.Jrikkith, 
 
 " In conclusion, we can heartily recommend this 
 book to our readers, not only to those who are in 
 large practice, and who merely want a claisified 
 list of cases, but to those who have both the desire 
 and the leisure to enter upon a systematic study of 
 our law." — Soikitors' Journal. 
 
 "As Mr. Worthington points out, since Mr. May 
 wrote, the 'Bills of Sale Acts' of 1878 and 1882 
 have been passed ; the ' Married Women's Property 
 Act, 1882 '(making settlements by married women 
 void as against creditors in cases in which similar 
 settlements by a man would be void), and the 
 ' Bankruptcy Act, 1883.' These Acts and the deci- 
 sions upon them have been handled by Mr. Worth- 
 ington in a manner which shows that he is master 
 of his subject, and not a slavish copyist of sections 
 and head-notes, which is a vicious propensity of 
 many modern compilers of text-books. His Table 
 of Cases (with reference to all th« repjrt.s), is 
 admirable, and his Index most txhausUve. "—/,<»«' 
 Times. , . . , 
 
 "The results of the authorities appear to le 
 given well and tersely, and the tnaiise will we 
 think be found a convenient and trustworthy bojk 
 of reference."— iia/ JouinaJ. 
 
 "A|r. Worthington'i work anwvr* »»» »»•»• *•»• 
 conscientious and exKai: ' ■. ' ". 
 
 "Examining Mr. M. 
 struclcd with an ir.!r! 
 render it entirti;. 
 guide in thi« < 
 subject is an inv. 
 
 h.-indling i( i« he , ^ • 
 
 be. ... On thr ^ ^^r^ 
 
 useful book of an <- . ^tim ' 
 
 — Solicitors' Journ.i,. 
 
 " llie subject and the wivk ar« UmH ««rf foodL 
 The former is well cSomh, near, ai 
 the l.itlcr has (he <|uality nhnh aivaft 
 gui«hcs uritcinji rrvc.Arch from lunwvil 
 — AmtiiiOtt I.atv Xmetv. 
 
 " We are happy to welcon»f ' '<%<.< 
 
 as an addiiioti to lie, *c re^'^ ' ' cm ' 
 
 logue of Uw hookt CO •M.icnti^ , - i_. W< 
 
 can corruUirale hit ow 1 d «» cri|W » u i > vt km ialnat^ 
 ' (hat no paint have been (faarad 10 makt Om hook 
 as concL^ and |'rat.iii-<l a* p o aM l i h , vtikovl 4m^t 
 so at (he expcntc of |«r«(4cail)r or by the i 
 cf any important puiaLk' — iJtm TiaM*.
 
 30 
 
 STEVENS «&- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In one volume, medium 8vo., price 38^., Cloth ; or in Half-Roxburgh, 425. 
 
 A HISTORY OF THE FORESHORE 
 
 AND THE LAW RELATING THERETO. 
 
 With a Hitherto Unpublished Treatise by Lord Hale, Lord Hale's 
 " De Jure Maris," and the Third Edition of Hall's Essay on the 
 
 RIGHTS OF THE CROWN IN THE SEA-SHORE. 
 
 With Notes, and an Appendix relating to Fisheries, 
 By STUART A. MOORE, F.S.A., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LA\V. 
 
 " This work is nominally a third edition of the 
 late Mr. Hall's essay on the rights of the Crown in 
 the Sea-shore, but in reality is an absolutely new 
 production, for out of some 900 odd pages Hall's 
 essay takes up but 227. Mr. Moore has written a 
 book of great importance, which should mark an 
 epoch in the history of the rights of the Crown and 
 the subject in the litus maris, or foreshore of the 
 kingdom. Hall's treatise (with Loveland's notes) is 
 set out with fresh notes by the present editor, who 
 is anything but kindly disposed towards his author, 
 for his notes are nothing but a series of exposures 
 of what he deems to be Hall's errors and misrepre- 
 sentations. Mr. Moore admits his book to be a 
 brief for the opposite side of the contention sup- 
 ported by Hall, and a more vigorous and argu- 
 mentive treatise we have scarcely ever seen. Its 
 arguments are clearly and broadly disclosed, and 
 supported by a wealth of facts and cases which 
 show the research of the learned author to have 
 been most full and elaborate. . . . There is no 
 doubt that this is an important work, which must 
 have a considerable influence on that branch of the 
 law with which it deals. That law is contained in 
 ancient and most inaccessible records ; these have 
 now been brought to light, and it may well be 
 that important results to the subject may flow 
 therefrom. The Profession, not to say the general 
 pubUc, owe the learned author a deep debt of 
 gratitude for providing ready to hand such a 
 
 wealth of materials for founding and building up 
 arguments. Mr. Stuart Moore has written a work 
 which must, unless his contentions are utterly un- 
 founded, at once become the standard text-book on 
 the law of the Sea-shore." — Law Times, Dec. ist. 
 
 " Mr. Stuart Moore in his valuable work on the 
 Foreshore. " — The Times. 
 
 " Mr. Stuart Mooie's work on the title of the 
 Crown to the land around the coast of England 
 lying between the high and low water-mark Ls 
 something more than an ordinary law book. It is 
 a historj', and a very interesting one, of such land 
 and the rights exercised over it from the earliest 
 times to the present day ; and a careful study of 
 the facts contained in the book and of the argu- 
 ments brought forward can scarcely fail to convince 
 the reader of the inaccuracy of the theory, now so 
 constantly put forward by the Crown, that without 
 the existence of special evidence to the contrary, 
 the land which adjoins riparian property, and 
 which is covered at high tide, belongs to the 
 Crown and not to the owner of the adjoining 
 manor. The list which Mr. Moore gives of places 
 where the question of foreshore has been already 
 raised, and of those as to which evidence on the 
 subject exists amongst the public records, is valu- 
 able, though by no means exhaustive ; and the 
 book should certainly find a place in the library of 
 the lord of every riparian manor." — Moi^ning Post. 
 
 In one volume, 8vo, price \2s., cloth, 
 'A TREATISE ON THE LAW RELATING TO THE 
 
 POLLUTION AND OBSTRUCTION OF WATER COURSES ; 
 
 Together with a Brief Summary of the Various Sources of Rivers 
 
 Pollution. 
 
 By CLEMENT HIGGINS, M.A., F.C.S., 
 
 OF THE INNER TKMI'I.E, liARRlSTER-AT-LAW. 
 
 " AiS a compendium of the law upon a special 
 and rather intricate subject, this treatise cannot 
 but prove of great practical value^ and more 
 especially to those who have to advise upon the 
 institution of proceedings under the Rivers Pollu- 
 tion Prevention Act, 1876, or to adjudicate upon 
 those proceedings when brought." — Irish Law 
 Times. 
 
 "We can recommend Mr. Higgins' Manual as 
 the best guide we possess." — Puilic Health. 
 
 "County Court Judges, Sanitary .\uthorities, 
 
 and Riparian Owners will find in Mr. Higgins' 
 
 Treatise a valuable aid in obtaining a clear notion 
 
 I of the Law on the Subject. Mr. Higgins has 
 
 i accomplished a work for which he will readily be 
 
 I recognised as having special fitness on account of 
 
 his practical acquaintance both with the scientifir 
 and the legal aspects of his subject." — Law Maga- 
 zine and Review* 
 
 "The volume is very carefully arranged through- 
 out, and will prove of great utility both to miners 
 and to owners of land on the banks of rivers." — 
 The I^lininz Journal. 
 
 "Mr. Higgins writes tersely and clearly, while 
 his facts are so well arranged that it is a pleasure 
 to refer to Ms'bibok for information ; and altogether 
 the work is one which will be found verj' useful by 
 all interested in the subject to which it relates." — 
 Engineer. 
 
 A compact and convenient manual of the law 
 on the subject to which it relates." — Solicitors 
 JoumaL
 
 S7EVENS &- HAY NES^ELL^ YARD, TEMPLt 
 
 In 8vo, FoUKTU EiiiTlON, price 25*., dolh, 
 
 MAYNE'S TREATISE 
 
 THE LAW OF DAMAGES. 
 
 FOURTH EDITION. 
 
 JOHN D. M A Y N K, 
 
 OF THE INNER TKMII.K, HAMKIM KK ATLAW ; 
 
 AND 
 
 LUMLEY SMITH. 
 
 OK THE INNEK TEMI-UC, y-. 
 
 «f V/T ^?°''^ ''^''^ been better kept up to the current law than this trcati^r TI.c ra;!.r, .., 
 
 of the book was remodelled in the last edition, and in ih.- present 7,11^^ '.'"• ^-""" -' 
 
 I'enalties and Liquidated Damages has been re-wriiten, no doubt in tot. ■ 
 
 regard to, the elaborate and exhaustive judgment of the late Master of th. 
 
 Srnith (31 W. K. 214 ; L. R. 21 Ch. D. 243). The trvatnu-nt of the sub,. 
 
 admirably clear and concise. Upon the point involved in !!'<;//;< v v 
 
 result is that an agreement with various covenants of diffen-nt imix)rt 
 
 by any inflexible rule peculiar to itself, but is to be de:ilt wiih as eon, • 
 
 that the intention of the parties themselves is to be considered. If : 
 
 case of any breach a fixed sum is to be paid, then they will be kepi 1 
 
 it would lead to such an absurdity or injustice that it must Ih: assunp 
 
 what they said.' This is a very fair summary of the judgments in (I 
 
 of that of Lord Justice Cotton ; and it supplies the nt-arest appro., 
 
 present to a rule for practical guidance. We can heartily commcn.; 
 
 edition of a thoroughly good book." — Solicitors' Journal. 
 
 " The editors have, with their well-known care, eliminated much oh<n|etr mitter .,!i.! • 
 and corrected the text in accordance with the recent changes in : 
 chapter on penalties and liquidated damages has been to a gi' 
 chapter has been added on breach of statutory obligations. As : 
 ble work, we can but speak of it with strong commendation as a most rrii i 
 very important branch of our law— the Right to Damages ;u> the result o( .1 . 
 — Law Journal. 
 
 " Dttring the twenty-two years which have elapsed iinn the pHhlicaiioM cf iKit tptiitr 
 work, its reputation has been steadily grorivins;, and it has Ions; since It, fme the rt. .• « . 
 authoiity on the iinportatit subject of which it treats." — Law Mauazi.vk a.\o Kkvii . . 
 
 what (he facli iN-orrd in thnr iu<l(awat i*.^;. 
 And, accordinK toifir Vttrr . pir.i ^ i>»> r- . , 
 dam;>i;ct ' f ir r . 
 man niorr lica\ \ 
 injuries lo (<• 
 'exeinpl.ir ■. 
 
 "This edition of what has become a standard 
 work has the advantage of appearing under the 
 supervision of the original author as well as of 
 Mr. Lumley Smith, tlie editor of the second edition. 
 The result is most satisfactorj-. Mr. Lumley 
 Smith's edition was ably and conscientiously pre- 
 pared, and we are glad to find that the reader still i cases be 
 enjoys the benefit of his accuracy and learning, i tract, to 
 At the same time the book has doubtless lieen "It is 
 
 improved by the reappearance of its author as co- | of the sii 
 editor. The earlier part, indeed, has been to a h.is twn 
 considerable extent entirely rewritten. hi'i- ' 
 
 " Mr. Mayne's renL-frks on damages in actions of In 
 tort are brief. We agree with him that in such | an : 
 actions the courts are governed by far looser princi- h ; 
 pies than in contracts ; indeed, sometimes it is b\ ■ 
 impossible to say they are governed by any princi- j n. ■: 
 pies at all. In actions for injuries to the person or , lli.. 
 reputation, for example, a judge cannot do more | lh.>- tk h*tb»«ai lHwu w ^| |lynHHwC— 
 
 than give a general direction to the jurj- to give i .V.-. -■*!. | 
 
 *^ This text-book is so well kno~Mn, not only as the ki.,iu.t .i.. • l 
 
 of but as one of the best text-books ever written, that 1/ nv;. j 
 
 in the words of comvtendation that it deserves. It is a uvri tkM m^ff.i.:nimf Um^' 
 
 do without."— Casav A Law Joijrnal. 
 
 kO»I
 
 32 
 
 STEVENS <5r» HAYNES, BELL YARD, TEMPLE BAK. 
 
 Second Edition, in crown 8vo, price 7j., cloth, 
 
 THE LAW RELATING TO CLUBS. 
 
 By THE LATE JOHN WERTHEIMER, Barrister-at-Law. 
 Second Edition, by A. W. CHASTER, Barrister-at-Law. 
 
 " A convenient handbook, drawn up with great 
 judgment and perspicuity." — Morning Post. 
 
 " Both useful and interesting to those interested 
 in club management." — Law Times. 
 
 " Mr. Wertheimer's history of the cases is com- 
 plete and well arranged." — Saturday Rez'ievj. 
 
 " This is a ver>' neat little book on an interesting 
 subject. The law is accurately and well expressed." 
 — Law Journal. 
 
 " This is a very handy and complete little work. 
 This excellent little treatise should lie on the table 
 of every club." — Pump Court. 
 
 In 8vo, price 2J., sewed, 
 
 TABLE of the FOREIGN MERCANTILE LAWS and CODES 
 
 in Force in the Principal States of EUROPE and AMERICA. By Charles 
 Lyon-Caen, Professeur agrege a la Faculte de Droit de Paris ; Professeur a 
 I'Ecole libre des Sciences politiques. Translated by Napoleon Argles, 
 Solicitor, Paris. 
 
 In one volume, demy 8vo, price los. 6d.y cloth, 
 
 PRINCIPLES OF THE LAW OF STOPPAGE IN TRANSITU, 
 
 RETENTION, and DELIVERY. By John Houston, of the Middle Temple, 
 Barrister-at-Law. 
 
 " We have no hesitation in saying that we think 
 Mr. Houston's book will be a very useful accession 
 
 to the library of either the merchant or the lawyer." 
 — Solicitors' yournal. 
 
 Just published, in 8vo, price lOf. , cloth, 
 
 THE TRIAL OF ADELAIDE BARTLETT FOR 
 
 MURDER; Complete and Revised Report. Edited by Edward Beal, B.A., 
 of the Middle Temple, Barrister-at-Law. With a Preface by Edward Clarke, 
 Q.C., M.P. 
 
 In Svo, price ioj. 6^., cloth, 
 A REPORT OF THE CASE OF 
 
 THE QUEEN k. GURNEY AND OTHERS, 
 
 In the Court of Queen's Bench before the Lord Chief Justice Cockburn. With an 
 Introduction, containing a History of the Case, and an Examination of the Cases 
 at Law and Equity applicable to it ; or Illustrating the Doctrine of Com- 
 mercial Fraud. By W. F. Finlason, Barrister-at-Law. 
 
 In royal Svo, price lOj. 6a'., cloth. 
 
 THE PRACTICE OF EQUITY BY WAY OF REVIVOR AND SUPPLEMENT. 
 
 With Forms of Orders and Appendix of Bills 
 
 of the Chancery Registrar's Office. 
 
 " Mr. Pemberton has, with great care, brought 
 
 together and classified all these conflicting cases, 
 
 and has, as far as may be, deduced principles which 
 
 By LoFTUs Leigh Pemberton, 
 
 will probably be applied to future cases." — Soli- 
 citors' "Journal. 
 
 In 8vo, 
 
 THE LAW OF PRIORITY. A Concise View of 
 
 the Law relating to Priority of Incumbrances and of other Rights 
 IN Property. By W. G. Robinson, M.A., Barrister-at-Law. 
 
 " Mr. Robinson's book may be recommended to 
 the advanced student, and will furnish the practi- 
 
 tioner with a useful supplement to larger and more 
 complete works. — Solicitors' Journal,
 
 STEVENS &. HAVNES, BELL YAHD, TEJUPLK H AM. 
 
 In 8vo, price 6/. 6./., cloth, 
 
 THE ANNUAL DIGEST OF MERCANTILE 
 CASES FOR THE YEAR 1886. 
 
 Being a Digest of the Dkcisions ok nii/ i.v • ^ 
 
 ON Matteks Rei.atisi; jo ' 
 I3V JAMES A. DUNCAN. M.A.. LLB., Trin. CoIL, Camb.. 
 
 AND OK THE INNEK TKMIIE, HAICI-"'-. •> • — 
 
 " We hope the present issue may be the first of « I hook to ^. ..J u. « . 
 
 series which will naturally increase in value with '•'^•••l !•■ • ■• - " - 
 
 the progress of time."— .9a/«/v/rt^ A"rj/Wj'. 
 
 " There can only be one opinion, and that a very | ", 
 decided one indeed, in favour of the value of this 1 -Lntr^i OaJiyi^,' "' " 
 
 %* The Annual Digest of Mercantile Cases, /or iSSc, ,.,« .,; , /, k. ,./ *., ,f„ .Ui 
 
 Third Edition, in crown Svu, pri. • i , ^ . ■; . 
 
 THE LAW AND PRACTICE OF ELECTION PETITIONS, 
 
 With an Appendi.x containing the Parliamentary Klcctions Afi. ihr r^r^-;-'. srv-! 
 Illegal Practices Prevention Acts, the Clcncral Rules cf ! 
 Election Judges in England, Scotland, and Ireland. I 
 Third Edition. By Henry IIakdcastle, of the Inner Ttu.p;*:, lUi.i.;ci *; U«. 
 
 "Mr. Hardcastle gives us an original treatise I guide. \Vc f ■■■ '■ • • ^ " ' '•i- 
 
 with foot-notes, and he has evidently uken very ?Iardca.Mlc'» K 
 considerable pains to make his work a reliable | and practice of ' 
 
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 PURSUANT TO THE PAA'UAM/iNTAKY I-.LECTIOSS A< i . i>^. 
 
 By EDWARD LOUGHLIN O'MALLEY and HENRY HARDCASTLFL 
 
 *,* Vol. IV. Parts III. and IV. Edited by]. S. Sandars, BarriiUrst- tjtir . 
 In 8vo, price \zs., cloth, • 
 
 THE LAW OF FIXTURES, 
 
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 LANDLORD AND TENANT, 
 
 AND IN ALL OTHER OR GENERAL KEI-ATIONS. 
 
 FOURTH EDITION. 
 By ARCHIBALD BROWN, M.A. Edin. and Oxon., and aCL. Ow«. 
 
 OF THE MIDDLE TEMPLE, rAHHIVTlK-AT-l-AW. 
 
 "Anew chapter has been added with reference I achieved."— /-.to- Timet. . . 
 
 to the Law of Ecclesiastical Fixtures and Dilapida- " The (reaiM u cv«»en<l*U« •• ••■ W «Hr 
 
 tions. The book is worthy of the success it has | luUiiy m for UtoiouttMM '—Lmm Jmrnmat.
 
 34 STEVEAS '&- HAYNES, BELL YARD, TEMPLE BAR. 
 
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 SIR BARTHOLOMEW SHOWER'S PARLIAMENTARY CASES. 
 
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 REVISED AND EDITED BY 
 
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 " Messrs. Stevens & Haynes, the successful publishers of the Reprints of Bellow c, 
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 " The volume, although beautifully printed on old-fashioned Paper, in old-fashioned 
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 " These are all cases of importance, worthy of being ushered into the light of the 
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 " Shower's Cases are models for reporters, even in our day. The statements of the 
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 of R. L. Loveland, Esq., should, in the language of the advertisement, 'be welcomed by 
 the profession, as well as enable the custodians of public libraries to complete or add to 
 their series of English Law Reports.'" — Canada La%u Joiinial. 
 
 BELLEWE'S CASES, T. RICHARD II. 
 
 In Svo, 1869, price 3/. 3^., bound in calf antique, 
 
 LES ANS DU ROY RICHARD LE SECOND. 
 
 Collect' ensembl' hors les abridgments de Stalham, Fitzherbert et Brooke. _ Per 
 
 Richard Bellewe, de Lincolns Inne. 1585. Reprinted from the Original 
 
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 " No public library in the world, where English 
 
 law finds a place, should be without a copy of this 
 
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 and it is really the most beautiful and admirable 
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 perfect gem of antique printing, and forms a most 
 interesting monument of our early legal historj'. 
 It belongs to the same class of works as the Year 
 Book of Edward I. and other similar works which 
 have been printed in our own time under the 
 auspices of the Master of the Rolls ; but is far 
 superior to any of them, and is in this respect 
 
 highly creditable to the spirit and enterprise of 
 private publishers. The work is an important link 
 in our legal historj' ; there are no year books of the 
 reign of Richard II., and Bellewe supplied the only 
 substitute by carefully extracting and collecting all 
 the cases he could find, and he did it in the most 
 convenient form— that of alphabetical arrangement 
 in the order of subjects, so that the work is a digest 
 as well as a book of law reports. It is in fact a 
 collection of cases of the reign of Richard II., 
 arranged according to their subjects in alphabetical 
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 and interesting legal memorials of the Middle 
 Ages." — Laiu Times. 
 
 CUNNINGHAM'S REPORTS. 
 
 In 8vo, 1871, price 3/. 3j-., calf antique, 
 Cunningham's (T.) Reports in K. B., 7 to 10 Geo. II.; to which is prefixed a Proposal 
 for rendering the Laws of England clear and certain, humbly offered to the 
 Consideration of both Houses of Parliament. Third edition, with numerous 
 Corrections. V>\ Thomas Townsend ]5ucknill, Barrister-al-Law. 
 
 peace and prosperity of evcrj' nation than good 
 laws and the due execution of them.' The history 
 of the civil law is then rapidly traced. Next a 
 
 "The instructive chapter which precedes the 
 cases, entitled ' A proposal for rendering the Laws 
 of England clear and certain,' gives the volume a 
 degree of peculiar interest, independent of the value 
 of many of the reported cases. That ch.ipter begins 
 with words which ought, for the information of 
 evcrj' people, to be printed in letters of gold. They 
 are as follows: 'Nothing conduces more to the 
 
 history is given of English Reporters, beginning 
 with the reporters of the Year Books from i Edw. 
 III. to 12 Hen. Vlll.— being near 200 years— and 
 afterwards to the time of the a.\x\.\\ot."— Canada 
 La'M "Journal.
 
 STEVENS ^ /lAYNhS, l;i,LL YAK! 
 
 <Stcbcn3 \\\\\ Sjapucs' §^tx\ti. of SUprinI* o( the <£jili) j|i<^#sUi . 
 CHOYCE CASES IN CHANCERY. 
 
 In Svo, 1S70, price 2/. Jr., r.i!! S!i!i|tir, 
 
 THE PRACTICE OF THE HIGH COURT OF CHANCERY. 
 
 With the Nature of the several Ofliccs bclonRinfi lo ihal Court. c|ia«t« of 
 
 many Cases wherein Relief hath l.<-.u ih. n- h.id, aoi) win. ,- -. 
 
 "This volume, in paper, type, niul bindiiiK (like ' I. ') i* B f ftf-'tf "" ff iht ■■lV|W * 1' 
 
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 In Svo, 1872, price 3/. 3^, call 
 
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 IN THE REIGNS OF QUEEN ANNE, AND KI.N(.S l.lJjRt.E I. as:- II. 
 
 The Third Edition, with Additional Cases and References cm'...;: • \ \\ 'V' N ' 
 taken from L. C. J. Eyre's MSS. hy Mr. Justice N.\i;i 
 TOWNSEND BUCKNILI., of the Inner Temple, '!'.:irri-l'r-.i< 1 
 
 " Law books never can die or remain long de.id an ■■ 
 
 so long as Stevens and Haynes are wiliins to con- n^' ■ 
 
 tinue them or revive them when dead. It is ccr- by 1 
 tainly surprising to see with what facial accurjicy 
 
 BROOKE'S NEW CASES WITH MAi(CH'S TRANSLATION. 
 
 In Svo, 1S73, price 4/. 4^., calf anli<pie, 
 Brooke's (Sir Robert) New Cases in the time of llcnry VIII . i 
 Queen Mary, collected out of Hkuoke's Ahridi^einenl. an ; 
 with a table, together with March's (John) T: ■ 
 in the time of Henry VIII., Edward VI., a; 
 Brooke's Abridgement, and reduced alphabetic...... 
 
 titles, with a table of the principal matters. In one h. 
 
 Steven* .iml H.i\ 
 
 in one volume, 1. 
 of the «!ric4 ..1 
 
 7..«,-«...'. 
 
 " lioth the original and the tran.^lation having 
 long been very scarce, and the misp.iging and other 
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 KELYNGE'S (W.) REPORTS. 
 
 In Svo, 1S73, price 4/. 4J., calf antique, 
 
 KeLYNGe's (William) Reports of Cases in Chancery, ihc K 
 
 3rd to the 9tii year of his late Majesty King GcorRc 1 . 
 King was Chancellor, and the Iv<jrds R.iynv ■ ' ^' \^ 
 
 Justices of England. To which arc adilal. >• ik* in UK 1 
 
 Edition. Third Edition. In '>ne hand.Mdue v 
 
 KELYNG'S (SIR JOHN) CROWN CASES. 
 
 In Svo, 1S73, price 4/. 4^., calf antique. 
 Kelyng's (Sir J.) Reports of Divers Cases ir. l'- 
 
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 INGS IN C.^SES OK Hk;h Treaso.n. hrsl P^l'I'-J'^J, '" '';;^ ,*. 
 
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 Barrister-at-Law. 
 "We look upon this volume as one of the mo«t I K 
 important and valuable of the unique reprint* oT ] ■ 
 Messrs. Stevens and Haynes. Little do "<^ >;■'■'« 
 of the mines of legal wealth thai lie buried t. U.e « 
 old law books. But a careful eva.mnation eilhcr ol j w. 
 the reports or of the treatise embodied in the volume Uiaelo. 
 now before us, will give the reader some idea of iho I
 
 36 STEVENS or- HAYNES, BELL YARD, TEMPLE BAK. 
 
 Second Edition, in Svo, price 26^., cloth, 
 A CONCISE TREATISE ON 
 
 PRIVATE INTERNATIONAL JURISPRUDENCE, 
 
 BASED OX IHE DECISIONS IN THE ENGLISH COURIS. 
 By JOHN ALDERSON FOOTE, 
 
 r linxoln's inn, barrister-at-la\v ; chancellor's legal medallist and senior whewell scholar 
 
 OF international law, CAMBRIDGE UNIVERSITY, 1873 *, SENIOR STUDENT IN JURISPRUDENCE 
 AND ROMAN LAW, INNS OF COURT EXAMINATION, HILARY TERM, 1874. 
 
 ' This work seems to us likely to prove of consideralile use to all English lawyers who have to deal with 
 questions of private international law. Since the publication of Mr. Westlake's valuable treatise, twenty 
 years ago, the judicial decisions of English courts bearing upon different parts of this subject have greatly 
 increased in number, and it is full time that these decisions should be e.xamined, and that the conclusions 
 to be deduced from them should be systematically set forth in a treatise. Moreover, Mr. Foote has done 
 this well." — Solicitors' jfournal. 
 
 " Mr. Foote has done his work very well, and the book will be useful to all who have to deal with the 
 class of cases in which English law alone is not sufficient to settle the question." — Saturday Reviro), 
 March 8, 1879. _ 
 
 "The author's object has been to reduce into order the mass of materials already accumulated in the 
 shape of explanation and actual decision on the interesting matter of which he treats ; and to construct a 
 framework of private international law, not from the dicta of jurists so much as from judicial decisions in 
 English Courts which have superseded them. And it is here, in compiling and arranging in a concise 
 form this valuable material, that Mr. Foote's wide range of knowledge and legal acumen bear such good 
 fruit. As a guide and assistant to the student of international law, the whole treatise will be invaluable : 
 while a table of cases and a general index will enable him to find what he wants without trouble." — 
 Standard. 
 
 " The recent decisions on points of international law (and there have been a large number since Westlake's 
 publication) have been well stated. So far as we have observed, no case of any importance has been 
 omitted, and the leading cases have been fully analysed. The author does not hesitate to criticise the 
 grounds of a decision when these appear to him to conflict with the proper rule of law. Most of his 
 
 criticisms seem to us verj- just On the whole, we can recommend Mr. Foote's treatise as a useful 
 
 addition to our text-books, and we expect it will rapidly find its way into the hands of practising lawyers." 
 — The Journal of Jurisprudence and Scottish Law Magazine. 
 
 "Mr. Foote has evidently borne closely in mind the needs of Students of Jurisprudence as well as those 
 of the Practitioners. For both, the fact that his work is almost entirely one of Case-law will commend 
 it as one useful alike in Chambers and in Court." — Law Magazine and Review. 
 
 "Mr. Foote's book will be useful to the student One of the best points of Mr. Foote's book 
 
 is the ' Continuous Summar>',' which occupies about thirty pages, and is divided into four parts— Persons, 
 Property, Acts, and Procedure. Mr. Foote remarks that these summaries are not in any way intended as 
 an attempt at codification. However that may be, they are a digest which reflects high credit on the 
 author's assiduity and capacity. They are ' meant merely to guide the student ; ' but they will do much 
 more than guide him. They will enable him to get such a grasp of the subject as will render the reading 
 of the text easy and fruitful." — La7u Journal. 
 
 "This book is well adapted to be used both as a text-book for students and a book of reference for 
 practising barristers." — Bar Examination Journal. 
 
 "This is a book which supplies the want which has long been felt or a really good modem treatise on 
 Private International Law adapted to the ever>'-day requirements of the English Practitioner. The 
 whole volume, although designed for the use of the practitioner, is so moderate in size — an octavo of 500 
 pages only — and the arrangement and development of the subject so well conceived and executed, that it 
 will amply repay perusal by those whose immediate object may be not the actual decisions of a knotty 
 point but the satisfactory disposal of an examination paper." — Oxford and Cambridge Undergraduates 
 Journal. 
 "Since the publication, some twenty years ago, of Mr. Westlake's Treatise, Mr. Foote's book is, In 
 tir opinion, the best work on private international law which has appeared in the English language. . . 
 The work is executed with much ability, and will doubtless be found of great value by all person who 
 have to consider questions on private international law." — Athenau/n,
 
 STEVENS &• r/AYNES, BELL YARD, J 
 
 11 IK 
 
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 ^•B. — These two Numbers are out of print. 
 
 No. CCXX. (Vol. I, 4th Series No. III.) r,.. 
 
 No. CCXXI. (Vol. I, 4th Series No. IV.) K,„ -fi. 
 
 Nos. CCXXII. to CCXLV. (Vol. 2, 4th Scries, to Vol. 7, 4lh Scries, No«. V. loXXVIIM. 
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 Nos. CCLIV. to CCLVII. (Vol. 9, 4th Series, Nos. XXXVII. • ■ vi , 
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 38 STEVENS &- IIAYNES, BELL YARD, TEMPLE BAR. 
 
 Fourth Edition, in one vol., Svo, price 32,?. ;/c/, cloth. 
 
 A TREATISE ON HINDU LAW AND USAGE. 
 
 By JOH.N' D. Mayne, of the Inner Temple, Barrister-at-Law, Author of "A Treatise on 
 
 Damages,' &c. 
 
 "A new work from the pen of so established an authority as Mr. Mayne cannot fail 
 to be welcome to the legal profession. In his present volume the late Officiating Advocate- 
 General at Madras has drawn upon the stores of his long experience in Southern India, 
 and has produced a work of value alike to the practitioner at the Indian Bar, or at home, 
 in appeal cases, and to the scientific jurist. 
 
 " To all wlio, whether as practitioners or administrators, or as students of the science 
 of jurisprudence, desire a thoughtful and suggestive work of reference on Hindu Law 
 and Usage, we heartily recommend the careful perusal of Mr. Maync's valuable treatise," 
 — Law Magazine and Review. 
 
 In Svo, 1877, price iSj., cloth, 
 
 A DIGEST OF HINDU LAW, 
 
 AS ADMINISTERED IN THE COURTS OF the MADRAS PRESIDENCY. 
 
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 By H. S. CUNNINGHAM, M.A., Advocate-General, Madras. 
 
 DUTCH LAW. 
 
 In 2 Vols., Royal iJvo, price 905., cloth, 
 
 VAN LEEUWEN'S COMMENTARIES ON THE ROMAN-DUTCH 
 
 LAW. Rci-ised and Edited with Notes in Two Volumes by C. W, Decker, 
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 by James Buchanan, Advocate of the Supreme Court. In One Vol., royal Svo. 
 
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 THE INTRODUCTION TO DUTCH JURISPRUDENCE OF 
 
 HUGO GROTIUS, with Notes by Simon van Groenwegen van der ^^ade, and 
 References to Van der Keesel's Theses and Schorer's Notes. Translated by 
 A. F. S. Maasdorp, B.A., of the Inner Temple, Barrister-at-Law. 
 
 In i2mo, price 15^^. net, boards, 
 
 SELECT THESES ON THE LAWS OF HOLLAND & ZEELAND. 
 
 Being a Commentary of Hugo Grotius' Introduction to Dutch Jurisprudence, and 
 intended to supply certain defects therein, and to determine some of the more 
 celebrated Controversies on ths Law of Holland. By DiONVSius Godefridus 
 van der Kessel, Advocate, and Professor of the Civil and Modern Laws in the 
 Universities of Leyden. Translated from the original Latin by C. A. Lorenz, 
 of Lincoln's Inn, Barrister-at-Law. Second Edition, With a Biographical Notice 
 of the Author by Professor J. De Wal, of Leyden.
 
 STEVENS &* I/AYNES, DEU. 
 
 'VWV. 
 
 3Sar €rammation SHimnal. 
 
 No. 72. Price 3s. 
 HILARY, 1892, 
 
 CONTENTS . 
 SUnjECTS OF EXAMINATION 
 EXAMINATION PAPERS, WITH ANSWERS. 
 
 Real and Personal Pkoi-ertv. 
 
 Equity. 
 
 Common Law. 
 
 RoArAN Law. 
 STUDENT.SHII' EXAMIN.ATION PAI'I-Tv-S 
 LIST OF SUCCE.SSFUL CANDIDATE.S 
 REVIEW.S. 
 INDEX, TITLE, ETC, TO VOL. X. 
 
 Edited iiy 
 A. D. TYSSEN, D.C.L., M.A., 
 
 OF THE INNER TEMI'LE, nAKKISTKHAT-I.AW ; AHtt 
 
 W. D. EDWARD.S. LL.IV. 
 
 OK Lincoln's inn, darristkk-at-la». 
 
 // is in/ended infuliire to publish a Number of the JOURNAL ajitr t.\ 
 
 Now publislied, in Svo, price iS/. lacli. cl..il), 
 
 THE BAR EXAiWINATION JOURNAL, VOLS. IV., v.. 
 
 VI., VII., VIIL, IX. & X. Containing the Kx.nminalion (.»•!»-•!-• .,-,! A-^->rt^ 
 from Easter Tenn, 187S, to Hilary Term, 1S92, with List ni 
 at each examination, Notes on the Law of Property, an<l a >;. 
 lation of importance to Studcnt.s, and other inforni.-uiun. 
 
 By' A. D. TYSSEN and W. D. EDWARDS, Ilani«lcT«-«l-Uw. 
 Fifth Edition. In Svo, price 9#. clolh, 
 
 A SUMMARY OF JOINT STOCK COMPANIES' LAW. 
 
 By T. EUSTACE SMITH, 
 
 OF THE INNI'.R THMPI.R, IIA) I; r^ T r.l ■ \ ' ! <" 
 
 " The author of this hnnd-book tells us th.it, when 
 an articled student reading for the final examina- 
 tion, he felt the want of such a work as that l>cforc 
 us, wherein could be found the main principles of 
 law relating to joint-stock companies . . . I_iw 
 students may well read it ; for Mr. .Smith has very 
 wisely been at the pains of giving his authority for 
 all his statements of the law or of practice, as applied 
 to joint-stock company business usually tr,-ins;icted 
 in solicitors' chambers. In fact, Mr. Smith li.is 
 by his little book offered a fresh inducement to 
 students to make themselves — at all events, to some 
 extent — acquainted with company law as a sepanilc 
 branch of study."— Zaif Times. 
 
 '.-I- 
 
 
 
 
 
 
 
 
 
 
 all. • 
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 STEVENS ^^ HAYNES, BELL YARD, TEMPLE BAR. 
 
 In Svo, Sixth Edition, price 9.^., cloth, 
 
 THE MARRIED WOMEN'S PROPERTY ACTS; 
 
 1870, 1874, 1882 and 1884, 
 With Copious and Explanatory Notes, and an Appendix of the Acts 
 Relating to Married Women. 
 By Archipai.d Brown, M.A., Edinburgh and Oxon., and the Middle Temple, 
 Barrister-at-Law. Being the Sixth Edition of The Married Women's Property 
 Acts. By the late J. R. Griffiths, B.A. Oxon., of Lincoln's Inn, Barrister- 
 at-Law. 
 
 '■ Upon the whole, we are of opinion that this is the best work upon the subject which has been issued 
 since the passing of the recent Act. Its position as a well-established manual of acknowledged worth gives 
 it at starting a considerable advantage over new books ; and this advantage has been well maintained by 
 the intelligent treatment of the '¥.&\X.ox." Solicitors Journal. , , , ..... , 
 
 "The notes are full, but anything rather than tedious reading, and the law contained in them is good, 
 and verified by reported cases. ... A distinct feature of the work is its copious index, practically a 
 ^umm.-lry of the marginal headings of the various paragraphs in the body of the text. Ihis book is worthy 
 of all success." — Law Magazine. 
 
 In 8vo, price I2j., cloth, 
 
 THE LAW OF NEGLIGENCE. 
 
 SECOND EDITION. 
 
 Bv Robert Campbell, of Lincoln's Inn, Barrister-at-Law, and Advocate 
 of the Scotch Bar. 
 
 No less an authority than the late Mr. Justice new edition brought down to date. It is indeed an 
 
 Willes in his judgment in Oppenkeim v. IVhite able and scholarly treatise on a somewhat difficult 
 
 Lion Hotel Co., characterised Mr. Campbell's branch of law, in the treatment of which the 
 
 I^wof Negligence ' as a ' very good book;' and author's knowledge of Roman and Scotch Juris- 
 
 since very good books are by no means plentiful, prudence has stood him in good stead. We con - 
 
 when compared with the numbers of indifferent fidently recommend it alike to the student and the 
 
 ones which annually issue from the press, we think practitioner."— j!:«a' Magazine. 
 the profession will be thankful to the author of this 
 
 In royal Svo, price 28j-., cloth, 
 
 AN INDEX TO TEN THOUSAND PRECEDENTS 
 
 IN CONVEYANCING and to common and commercial 
 
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 By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law. 
 
 BIBLIOTHECA LEGUM. 
 
 In i2mo (nearly 400 pages), price 2j., cloth, 
 
 A CATALOGUE OF LAW BOOKS, including an the Reports 
 
 in the various Courts of England, Scotland, and Ireland ; with a Supplement to 
 December, 1884. By Henry G. Stevens and Robert W. Haynes, Law 
 Publishers. 
 
 In small 4to, price 2J., cloth, beautifully printed, with a large margin, for the 
 
 special use of Librarians, 
 
 CATALOGUE OF THE REPORTS IN THE 
 
 VARIOUS COURTS OF THE UNITED KINGDOM OF GREAT 
 BRITAIN AND IRELAND, arranged both in alpha. 
 
 BETICAL ^^ CHRONOLOGICAL ORDER. By Stevens & IIaynes, 
 Law Publishers.
 
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 InSvo, price ii/., cl^.th, 
 
 CHAPTKRS ON TllK 
 
 LAW RELATING TO THE COLONIES. 
 
 To which is appended a ToncAl. Im,kx of CA<.fcs i>r< ii>r» in :t,r I . ,. . . 
 
 on Appeal from the Colonics, ihc Channel Man.U an<l the I 
 in Acton, Knajip, Moore, the Law Journal kcix.rtv. and 
 July, 1SS2. 
 
 By CHARLKS JAMES TAKkIN(;, 
 
 OF THE INNER TEMl-I.K. t-JSQ.. IIA«|CUTKII-AT I »» . 
 
 CONTENTS. 
 
 Table op Cases Cited. Cha,Mcr V.-AppcU Tra. il 
 
 lAni.E OF Statutes Cited. i i,.,i.ir, VI - ZJTT.^ . !._ 
 
 Introductory.— Definition of a Colony. 
 
 Chapter I.— The laws to which the Colonies are 
 
 subject. 
 Chapter II. — The Kxecutive. 
 
 ;„,.-..— 
 
 Section i.— The Governor. TontAL None or Ca«k.v 
 
 .^L*^"°" ?~^''^'^'"^'^"''^'^*-°"'"^''- I '«t>i'x "r TorK-« or fciMiuwi I 
 
 Chapter III. — The Legislative power. | IN TllK Camu. 
 
 Section i.— Crown Colonies. 1 Index or Nama or «'«nt 
 
 Section 2. — Privileges and powcrsof ' — 
 
 colonial Legislative Assemblies. , GENKRAL INDKX. 
 
 Chapter IV.— The Judiciary and liar. 
 
 In 8vo, price lor., cloth, 
 
 THE TAXATION OF COSTS IN THE CROWN OFFICE. 
 
 Comprising a collection of 
 BILLS OF COSTS IN THE VARIOUS MATTERS TAXABLE IN THAT OFFICE; 
 
 INCLUDINU 
 
 COSTS UPON THE PROSECUTION OF FRAUDULENT IIANKRUPTS, 
 AND ON APPEALS FROM INFERIOR COURTS; 
 
 TOOETIIF.K Wmi 
 
 A TABLE OF COURT FEES. 
 AND A SCALE OF COSTS USUALLY ALLoWLD lo SoLU I n>R.<s ON TMK TAXATIOM 
 
 of costs on the crown siuk of ihk oukk.ss hkncii j>ivij.|"n 
 of the hich court ok justkk. 
 
 By FREDK. H. short, 
 
 CHIF.F CLEKK I.N THK CKOWN orrKE. 
 
 " This is decidedly a useful work on the subject of thiMc ■ itoj t «*^« "»« 
 
 Queen's Coroner and Attorney (for which latter name th.-»t of ■■ Mitwm ««»ii a 
 
 before the master of the Crown Office ; in fact, such a I --^V; 1 IJTCT^ *'^ 
 
 for taxation in the Crown Office, or when laxine .in o; ; '! 'A^ " '• ''^ 
 
 relating to bankruptcy prosecutions of especial use, a-- »aUfc«. I»« caawM 
 
 observations ' constitute a useful feature in this manii.i 
 
 "This book containsacollectionof billsofcostiinihe \aii *^ 
 
 we point out that the only scale of costs available for the uv <^ 
 
 lished in Mr. Corner's book on ' Crown Practice] in il^\, we 
 the work before us. 
 
 "In them Mr. Short deals with 'Perusals,' 'Copies for U«e,' 'A 
 ' Close Copies,' ' Counsel,' ' Affidavit of Increa.-se," and kindrct! man- 
 taxation of 'Costs in Bankruptcy Prosecutions,' 'Q-o Itarrumt.; ilA^^m^, 
 ' l<"les.' 
 
 ' ' We have rarely seen a work of this character better eieculetl. aikl •« fc«l w»^ ««•< " • - : 
 
 appreciated." — Law Journal. ^, , 
 
 "The recent revision of the old scale of costs in ihr Crown 0*r, r»»a-« iS. I||>|«wmk« «f^lM •«• 
 particularly opportune, and it cannot fail to be ■ _ ^^ ^j^^ 
 
 place, a scale of costs usually allowed to sohcii ^^ 
 
 bills of costs in various matters. 'Ihesc are wei. .
 
 42 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 Just Pulilished, in Svo, price y.r. 6(/. , cloth, 
 
 BRITISH CONSULAR JURISDICTION IN THE EAST, 
 
 WITH TOPICAL INDICES OF CASES ON APPEAL FROM, AND 
 
 RELATING TO, CONSULAR COURTS AND CONSULS; 
 
 Also a Collection of Statutes concerning Consuls. 
 
 By C. J. TARRING, M.A., 
 
 ASSISTANT-JUDGE OF H.B.M. SUPREME CONSULAR COURT FOR THE LEVANT. 
 
 In one volume, Svo, price &f. 6d., cloth, 
 A COMPLETE TREATISE UPON THE 
 
 NEW LAW OF PATENTS, DESIGNS, & TRADE MARKS, 
 
 CONSISTING OF THE PATENTS, DESIGNS, AND TRADE MARKS ACT, 
 
 18S3, WITH THE RULES AND FORMS, FULLY ANNOTATED 
 
 WITH CASES, &c. 
 
 And a Statement of the Principles of the Law upon those subjects, with a Time Table 
 
 and Copious Index. 
 
 By EDWARD MORTON DANIEL, 
 
 OF Lincoln's inn, bakrister-at-law, associate of the institute of patent agents. 
 In Svo, price ^s., cloth. 
 
 The TRADE MARKS REGISTRATION ACT, 1875, 
 
 And the Rules thereunder ; THE MERCHANDISE MARKS ACT, 1862, with an 
 Introduction containing a SUMMARY OF THE LAW OF TRADE MARKS, 
 together with practical Notes and Instructions, and a copious Index, By 
 Edward Morton Daniel, of Lincoln's Inn, Barrister-at-Law. 
 
 In one volume, Svo, price i6j-., cloth, 
 A CONCISE TREATISE ON THE 
 
 STATUTE LAW OF THE LIMITATIONS OF ACTIONS. 
 
 W'ith an Appendix of Statutes, Copious References to English, Irish, and American Cases, 
 and to the French Code, and a Copious Index. 
 
 By henry THOMAS BANNING, M.A., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LA\V. 
 
 " Mr. Banning has adhered to the plan of printing the Acts in an appendix, and making hi« book a 
 running treatise on the case-law thereon. The cases have evidently been investigated with care and 
 digested with clearness and intellectuality." — Law Journal. 
 
 In Svo, price is., sewed, 
 AN ESSAY ON THE 
 
 ABOLITION OF CAPITAL PUNISHMENT. 
 
 Embracin;^ 7norc particularly a7i Entmciation and Analysis of iht Principles of Law as 
 applicable to Criminals of the Highest Degree of Guilt. 
 
 By WALTER ARTHUR COPINGER, 
 
 OF THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW. 
 
 Sixth Edition, in Svo, price 31^. 6^/., cloth, 
 
 THE INDIAN CONTRACT ACT, No. IX., of 1872. 
 
 TOC, ETHER 
 
 Wm AN INTRODUCTION AND EXPLANATORY NOTES, TABLE OF 
 
 CONTENTS, APPENDIX, AND INDEX. 
 
 By H. S. CUNNINGHAM and H. H. SHEPHERD, 
 
 BARRISTERS-AT-LAW.
 
 STEVEIVS dH HAYNES, BELL YARD, T. 
 
 Second luUtion, in 8vo, nearh 
 
 LEADING CASES and OPINIONS on INTERNATIONAL LAW 
 
 C()M.i;ciI.h 
 
 ENGLISH AND FOREIGN 
 
 PARLIAMENTARY PAPERS, and other Sources 
 
 AMI l.liilMHi Km)M 
 
 REPORTS, OFFICIAL DOCUMENTS, 
 
 With NOTES and EXCURSUS, ConUininR the View, of 
 the Topics referred to, toi^cther with Supi)lcmciitary Que., 1 r 
 and Emhodying an Account of some of the more important IntcnutioiM) Ifsi 
 
 actions and Controversies. 
 
 By rriT COBBETT, M.A., B.C.I. , 
 
 OF GHAV'S INN, DARRISTKK- ATLAW. 
 
 "The book is well arranged, the materials well i "The note* lit eo«nt«'ly « 
 
 selected, and the comments to the point. Much worthy TTKr rr- 'p' -t " 
 
 will be found in small space in this hooV"—I.aw ^"j^jj ^"[, ' 
 
 Jow'i'xl. I more sysicu., 
 
 Second Edition, in royal Svo. i lOO pages. Ntarly rtady. 
 
 STORY'S COMMENTARIES ON EQUITY 
 JURISPRUDENCE. 
 
 Second English Edition, from the Twelfth American Fditi^'n. 
 By W. E. GRIGSBY, LL.D. (Lond.), B.C.L. (Ox<)N.>, 
 
 AND OF THE INNER TEMPLE, BARRISTBR-AT-LAW. 
 
 Second Edition, in Svo, price 8x., ck>ih, 
 
 THE PARTITION ACTS, 1868 & 1876. 
 
 A Manual of the Law of Tartilion and of Sale, in Lieu of I'-irtition. Wiih ihc I>eci<lc«1 
 Cases, and an Appendix containing Judgments and Orders, liy W. CJKICOtT 
 Walker, B.A., of Lincoln's Inn, 15arrister-at-Law. 
 
 " This is a very good manual— practical, clearly h.as carefii'.'- ■'•• 
 
 written, and complete. The subject lends ilself cussed the 
 
 well to the mode of treatment adopted by Mr. the diffcreni , 
 Walker, and in his notes to the various sections he 
 
 Second Edition. In Svo, price 22x. cloth, 
 A TREATISE ON THE 
 
 LAW AND PRACTICE RELATING TO INFANTS. 
 
 By ARCHIBALD H. SIMPSON, M./\-, 
 
 OF LINCOLN'S INN, BAKKISTEK-AT-LAW, AND FKLI.OW Of IMHI-.t\ COLtfc.*. C*M»««-.«- 
 
 SECOND EDITIOh\ By E. J. Ei.r.oon, H.C.L., M.A., of Lincoln** Inn. 
 
 Barristcr-at-I-tw. 
 
 "Mr. Simpson's book comprises the whole of the 
 law relating to infants, both as regards their per- 
 sons and their property, and we have not observed 
 any very important omissions. The author has 
 evidently expended much trouble and c.-ire upon 
 his work, and 1ms brought together, in a concise 
 and convenient form, the law upon the subject down 
 to the present Um^."— Solicitors' Journal. 
 
 "Its law is unimpeachable. We have detected 
 no errors, and whilst the work might have l>een 
 done more scientifically, it is, beyond all question, 
 a compendium of sound legal principles. —La:v 
 Times. rut 
 
 " Mr. Simpson has arranged the whole ol the l>aw 
 relating to Infants with much fulness of detail, and 
 
 «J-.: 
 
 yet in com; ■ ». TW 
 
 due mainl> • 
 
 Style. Kul- ' ""• 
 
 sacrificed i 
 
 able to tc«i 
 
 portance, U 
 
 the c***nlL»l ijuj.ii.ri * .ifi'/r»', 
 
 and orderly mrranijcnxM U !«•««• 
 
 Uc»irc'!. . . 
 
 "1 ' 
 
 tice " 
 ».« f 
 
 Wri.r ^'^*'*' 
 
 him ".*«»• MH
 
 4^ 
 
 S7EVEXS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In one volume, royal 8vo, 1877, price 30J., cloth, 
 
 THE DOCTRINES & PRINCIPLES OF 
 THE LAW OF INJUNCTIONS. 
 
 By WILLIAM JOYCE, 
 
 OF LINCOLN'S INN, BARRISTER-AT-LAW. 
 
 "Mr. Joyce, whose learned and exhaustive work on 'The Law and Practice of Injunctions has 
 gained such a deservedly high reputation in the Profession, now brings out a valuable companion volume 
 on the ' Doctrines and Principles' of this important branch of the Law. In the present work the Law is 
 enunciated in its abstract rather than its concrete form, as few cases as possible being cited ; while at the 
 same time no statement of a principle is made unsupported by a decision, and for the most part the very 
 language of the Courts has been adhered to. Written as it is by so acknowledged a master of his subject, 
 and with the conscientious carefulness that might be expected from him, this work cannot fail to prove of 
 the greatest assistance alike to the Student— who wants to grasp principles freed from their superincum- 
 bent details— and to the practitioner, who wants to refresh his memory on pointsof doctrine amidst the 
 oppressive details of professional work."- — Law Magazine and Reinew. 
 
 BY THE SAME AUTHOR. 
 In two volumes, royal 8vo, 1872, price 70^., cloth, 
 
 THE LAW & PRACTICE OF INJUNCTIONS. 
 
 EMBRACING 
 
 ALL THE SUBJECTS IN WHICH COURTS OF EQUITY 
 AND COMMON LAW HAVE JURISDICTION. 
 
 By WILLIAM JOYCE, 
 
 OF Lincoln's inn, barristek-at-law. 
 
 REVIEWS. 
 
 " From these rem.nrks it will be sufficiently per- 
 ceived what elaborate and painstaking industry, as 
 well as legal knowledge and ability, has been 
 necessarj- in the compilation of Mr. Joyce's work. 
 No labour has been spared to save the practitioner 
 labour, and no research has been omitted which 
 could tend towards the elucidation and exempli6- 
 cation of the general principles of the Law and 
 Practice of Injunctions." — Law Journal. 
 
 " He does not attempt to go an inch beyond that 
 for which he has express written authority ; he al- 
 lows the cases to speak, and does not speal; for them. 
 
 "The work is something more than a treatise on 
 the Law of Injunctions. It gives us the general 
 law on almost every subject to which the process of 
 injunction is applicable. Not only English, but 
 American decisions are cited, the aggregate number 
 being 3,500, and the statutes cited 160, whilst the 
 index is, we think, the most elaborate we have ever 
 seen — occupying nearly 200 pages. The work is 
 probably entirely exhaustive." — Law Times. 
 
 "This work, considered either as to its matter or manner of execution, is no ordinary work. It is a 
 complete and exhaustive treatise both as to the law and the practice of granting injunctions. It must 
 supersede all other works on the subject. The terse statement of the practice will be found of incalculable 
 value. We know of no book as suitable to supply a know ledge of the law of injunctions to our common 
 law friends as Mr. Joyce's exhaustive work. It is alike indispensable to members of the Common Law 
 and Equity liars. Mr. Joyce's great work would be a casket without a key unless accompanied by a good 
 index. His index is very full and well arranged. Wc feel that this work is destined to take its place 
 as a standard text-book, and M^ text-book on the particular subject of which it treats. The author 
 deserves great credit for the very great labour bestowed upon it. The publishers, as usual, have 
 acquitted themselves in a manner deserving of the high reputation they bear." — Canada Law Journal. 
 
 " A work which aims at being so absolutely 
 complete, as that of Mr. Joyce upon a subject 
 which is of almost perpetual recurrence in the 
 Courts, cannot fail to be a welcome offering to the 
 profession, and doubtless, it will be well received 
 and largely used, for it is as absolutely complete as 
 
 it aims at being This work is, therefore, 
 
 eminently a work for the practitioner, being full of 
 practical utility in every page, and every sentence, 
 of it We have to congratulate the pro- 
 fession on this new acquisition to a digest of the 
 law, and the author on his production of a work of 
 permanent utility and fame." — Law Magazine 
 and Review. 
 
 " Mr. Joyce has produced, not a treatise, but a 
 complete and comyjendious exposition of the Law 
 and Practice of Injunctions both in equity and 
 common law. 
 
 "Part III. is devoted to the practice of the 
 Courts. Contains an amount of valuable and 
 technical matter nowhere else collected.
 
 STEVENS 6^ IIAYNES, BELl. YARD, TFM PLE f^AK. 
 
 Third Edition, in 8vo, price Joi., clolh. 
 
 A TKKATISK ri't)\ 
 
 THE LAW OF EXTRADITION 
 
 WITH THK CONVKXTIONS UPON Tn.-: M lU. • . VxTm IS- n uvVkN 
 
 AND THE CASES DECIDED THFREON 
 By Sir EDWARD CI.ARKK. 
 
 OF Lincoln's inn, s..,; _ ,.,,.. 
 
 " Mr. Clarice's accurate unci scnsihle book imlie WAnt. i 
 
 best authority to wliicli the ICnclish rc;ider can ' Uw ..f r ' "■ '^ 
 
 turn upon the subject of i:.vtradiiion."—.SVi/«>v/,ij. (■ ■ »l» 
 
 Rcviiiu. t 1. ■ " 
 
 "The opinion we expressed of the merits of this •,; ' 
 
 work when it first appeared has been fully justified 1 "' 
 
 by the reputation it has gained, it is seld.jui wc • ' 
 
 come across a book possessing so much interest lo * 
 
 the general readerand at the sametimcfurnisliins so ' ' 
 useful a guide to the lawyer."— .iW/t7V<»-j' Journal. 
 
 "The appearance of a second edition of this * 
 treatise does not surprise us. It is a useful book, 
 
 well arranged and well written. A student who i > 
 
 In Svo, price 2f. '< .■ , ( 
 
 TABLES OF STAMP DUTIES 
 
 FROM 1815 TO 1878. 
 By WALTER ARTHUR C01'IN(;i:r, 
 
 OF THE MIDDLE TEMPLl^, ESQUIRE, HAHRISTKK-AT-LAU : Al Iil.'K ><T '■lur l«W 0» Cttrmcmr IB 
 
 WORKS OF LITERATURE AND AKT," " INDEX To TKECKDHNTs I •• ■..,. k •,,,,■.,.. A 
 
 "We think this little book ought to find its way larjjc i, 
 into a good many chambers and offices." — Sa/i- "Hi 
 
 ci tors' your flat. (, 
 
 " This book, or at least one containing the same 
 amount of valuable and well-arranged information, 
 should find a place in every Solicitor's office. It is 
 of especial value when examining the abstract of a 
 
 In one volume, Svo, price 14 ., . . •;., 
 
 TITLE DEEDS: 
 
 THEIR CUSTODY, INSPECTION. AND PRODUCTION, AT LAW. IN 
 EQUITY, AND IN MATTERS OF CONVEYANCING. 
 
 Including Covenants for the I'rocluclion of Deeds and AUcilol Cipjc* ; «iih an AnModu 
 of Precedents, the X'endur and rurcha>' r \ ■ ■^- t^^ By WAI.t»« 
 
 Arthur Copin(;kk, of ilie Middle T' : Aothot al " Tlte 
 
 Law of Copyright " and " Index lo I'ren 
 
 " The literary execution of the work Ls good here. ^; 
 
 enough to invite quotation, but the volume is not I by the ■ 4 
 
 large, and we content ourselves with recommending , f, .,1-w« 
 
 it to the profession." — Law Times. _ v •.aikMiA. 
 
 "A really good treatise on this subject must be W . i' i> t » — 
 
 essential to the lawyer : and this is what we have , ti- -■_: i- 
 
 In 8vo, Second Edition, consideral)!)- cv.'. 
 
 THE LAW OF COPYRIGHT 
 
 In Works of Literature and Art; including that of ll. 
 
 Sculpture, Painting, Photograjihy, and Ornam. h' i 
 
 with International and Foreign Copyright, wr 
 
 References to the Knglish and Anurion : 
 
 CoriNGER, of the Middle Temple, IJarii 
 "Mr. Copinger's book is very coinprchen*ivc, 1 ■ . I, «J«ifc«'«»», W«J lo iW f*»«*i< «i 
 
 dealing with every branch of his subject, and cvxn I : t ■' r .,, 4 , ., ^., j .t^ 
 
 extending to copyright in foreign countries. .So far 1 
 as we have examined, we have found all the recent j i 
 authorities noted up with scrupulous care, and . >; 
 there is an unusually good index. lhe*« are I 
 
 U llM
 
 46 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 Third Edition, in One large Volume, 8vo, price 32J-., cloth, 
 
 A MAGISTERIAL AND POLICE GUIDE: 
 
 BEING THE LAW 
 
 RELATING TO THE 
 
 PROCEDURE, JURISDICTION, and DUTIES OF MAGISTRATES 
 AND POLICE AUTHORITIES, 
 
 IN THE METROPOLIS AND IN THE COUNTRY. 
 
 With an Introduction showing the General Procedure before Magistrates 
 both in Indictable and Summary Matters. 
 
 By henry C. greenwood, 
 
 STIl-ENDIARV MAGISTRATE FOR THE DISTRICT OF THE STAFFORDSHIRE POTTERIES ; AND 
 
 TEMPLE CHEVALIER MARTIN, 
 
 CHIEF CLERK TO THE MAGISTRATES AT LAMBETH POLICE COURT, LONDON ; 
 AUTHOR OF "the LAW OF MAINTENANCE AND DESERTION," " THE NEW FORMULIST," ETC. 
 
 Third Edition. Including the Session 52 & 53 Vict., and the Cases Decided in the 
 Superior Courts to the End ok the Year 1889, revised and enlarged. 
 
 By TEMPLE CHEVALIER MARTIN. 
 
 "A second edition has appeared of Messrs. Greenwood and Martin's valuable and 
 comprehensive magisterial and police Guide, a book which Justices of the peace should take 
 care to include in their Libraries." — Saturday Review. 
 
 " Hence it is that we rarely light upon a work which commands our confidence, not merely 
 by its research, but also by its grasp of the subject of which it treats. The volume before us 
 is one of the happy few of this latter class, and it is on this account that the public favour will 
 certainly wait upon it. We are moreover convinced that no effort has been spared by its 
 authors to render it a thoroughly efficient and trustworthy guide."— Law Journal. 
 
 " ^tagistrates will find a valuable handbook in Messrs. Greenwood and Martin's 
 ' Magisterial and Pohce Guide,' of which a fresh Edition has just been published." — The 
 Times. 
 
 " A very valuable introduction, treating of proceedings before Magistrates.and largely of the 
 Summary Jurisdiction .Act, is in itself a treatise which will repay perusal. We expressed our 
 high opinion of the Guide when it first appeared, and the favourable impression then produced 
 is increased by our examination of this Second Edition." — Law Times. 
 
 " For the form of the work we have nothing but commendation. We may say we have 
 here our ideal law book. It maybe said to omit nothing which it ought to contain." — 
 Law Times. 
 
 " This handsome volume aims at presenting a comprehensive magisterial handbook 
 for the whole of England. The mode of arrangement seems to us excellent, and is well 
 carried out." — Solicitors' Journal. 
 
 " The Magisterial and Police Guide, by Mr. Henry Greenwood and Mr. Temple 
 Martin, is a model work in its conciseness, and, so far as we have been able to test it, 
 in completeness and accuracy. // oug/n to be in the hands of all who, as magistrates or 
 otherwise, have authority in matters of police." — Daily News. 
 
 " This work is eminently practical, and supplies a real want. It plainly and concisely 
 states the law on all points upon 'which Magistrates are called upon to adjudicate, syste- 
 matically arranged, so as to be easy of reference. It ought to find a place on every Justice's 
 table, and we cannot but think that its usefulness 7uill speedily ensure for it as large a sale 
 as its merits deserve. " — Midland Counties Herald. 
 
 " The exceedingly arduous task of collecting together all the enactments on the subject 
 has been ably and efficiently performed, and the arrangement is so methodical and precise 
 that one is able to lay a finger on a Section of an Act almost in a moment. It is wonderful 
 what a mass of information is comprised in so comparatively small a space. We have much 
 pleasure in recommending the volume not only to our professional, but also to our 
 general readers ; nothing can be more useful to the public than an acquaintance with the 
 outlines of magisterial jurisdiction and procedure." — Sheffield Post.
 
 the per 
 
 In one thick volume. 8vo, pHec jj/.. d.^h 
 
 THE LAW OF RAILWAY COMPANIES 
 
 ComprisintJ the Con,,Mnics Clauses. ,hc Un.U C hu»« ih. U 
 ^;U.on Acts. ,hc K.ilvvay c:..;„,.an.;f Ac ,. •vr^''^^.'^ 
 Act, iS68 ; with Notes of Cases on all ih. 
 year 1868; to^;cll,cr vsitl, an A,.,,cn.lix i;,. 
 to kaiKvays, nn.l the Stan.lin^ ()„U-, , 
 and a copious In.kx. l!y Mkskv (, 
 
 In a handy voliunc, crown Svo. 1S70. ,.,i.c 10/ u. 
 
 THE LAW OF SALVAGE," 
 
 rv,'" •t^P'-^""''/ ^'^'V-i"in« Statute*. Forms Ta'l.lc ofTUZ rtt 
 JONhs, of Gray's Inn, Ha rri»ter-at-Law. ^^ 
 
 In crown Svo, price 4f., doih. 
 
 A handijook: of thk 
 
 LAW OF PARLIAMENTARY REGISTRATION. 
 
 WITH AN APPENDIX OF STATUTES AND FULL INDEX. 
 ^ By J. K. SEA CEl^ Rkgivi RATION AotsT. 
 
 THE LAW OF PROMOTERr'oF' PUBLIC COMPANIES. 
 
 Bv NEWMAX WATTS, 
 
 OK I.INCOI.n's inn, BAKUIsrt.* atlaw. 
 " Some recent cases in our law courts, which at . " Mr W.ii, hai ^f-rot^f trwtSrf »n A. ■.. 
 the time attracted much public notice, have demon- ; - ■ » -» ~i i-. ... 
 
 strated the want of some clear and concise cxi^jsi- 
 tion of the powers and liabilities; of promoters, and 
 this task has been ably performed by Mr. Newman ... • 
 Watts." — Investor's Guardian. t.i. ■ 
 
 Second Edition, in One Vol., Svo, tUMrljr rMkfy. 
 
 A COMPENDIUM OF ROMAN LAW, 
 
 FOUNDKD OX TIIK I.NSI ITi; TEb Ol Jr.silMAN; t.»};clhcr w -.;.«» 
 
 Set in the University and Bar Examinations (with S. . , ^ 
 
 Leading Terms in tlie Words of ilif I'rir.cijMl '. 
 of the Inner Temple, M.A., late .SchoLir of i 
 College, Cambridge; Author of "An Aiul).. .. .......... ^»...,,».ij 
 
 Philosophy of Positive Law." 
 
 In Svo, ]iricc Ji. 6/., cl'j^h, 
 
 TITLES TO MINES IN THE UNITED STATES, 
 
 Ullll HIP. 
 
 STATUTES AND REFERENCES TO THE DECISIONS 
 OF THE COURTS RELATING TH£R£Ta 
 
 Bv W. A. HARRIS, IJ.A. Oxo.s., 
 
 OF uncoln's inn, babwstui-at-law ; axd or tmi ambsh •' ' '
 
 48 
 
 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX 
 
 To the Names of Authors and Editors of Works enumerated in this Catalogue. 
 
 Aldred (P. F.), page 21, 
 
 Argles (N.), 32. 
 
 Baldwin (E. T.), 15. 
 
 Banning (H. T.), 42 
 
 Beal (E.), 32. 
 
 Bellewe (R.), 34- 
 
 Beven (T.) 14. 
 
 Blyth (E. E. ), 22. 
 
 Brice (Seward), 9, 16. 
 
 Brooke (Sir R.), 35. 
 
 Brown (Archibald), 20, 22. 26, 33, 40. 
 
 Browne (J. H. Balfour), 19. 
 
 Buchanan (J.), 38. 
 
 Buckley (H. B.), 17. 
 
 BucKNiLL (T. T.), 34, 35- 
 
 Campbell (Gordon), 47. 
 
 Campbell (Robert), 9, 40. 
 
 Carmichael (C. H. E.), 21 , 
 
 Cecil (Lord R.), h. 
 
 Chaster (A. W. ), 32. 
 
 Clarke (Edward), 45. 
 
 Cobbett (Pitt), 43. 
 
 Coghlan (W. M.), 28. 
 
 Cooke (Sir G.), 35. 
 
 Cooke (Hugh), 10. 
 
 Copinger (W. a.), 40, 42, 45. 
 
 Corner (R. J.), 10. 
 
 Craies (W. F.), 6. 
 
 Cunningham (H. S.), 38, 42. 
 
 Cunningham (John), 7. 
 
 Cunningham (T.), 34. 
 
 Daniel (E. M.), 42. 
 
 Darling (C. J.), 18. 
 
 Deane (H. C), 23. 
 
 De Wal(J.), 38. 
 
 Duncan (J. A.), 33. 
 
 Edwards (W. D.), 16, 39. 
 
 Elgood (E. J.), 6, 18, 43. 
 
 Elliott (G.), 14. 
 
 Emden (A.), 8, II. 
 
 EvERSLEY (W. P.), 9. 
 
 FiNLASON (W. F.), 32. 
 
 Foa(E.), II. 
 
 FOOTE (J. Alderson), 36. 
 Forbes (U. A.), 18. 
 Forsyth (W. ), 14. 
 Frost (R.), 12. 
 GiBBS (F. W.), 10. 
 Godefroi (II.), 47. 
 Greenwood (II. C), 46 
 Griffith (J. R. ), 40. 
 Grigsby (\V. E.), 43. 
 Grotius (Hugo), 38. 
 Hall (R. G.), 30. 
 Hanson (A.), 10. 
 IIardcastle (II.), 9, 33. 
 Harris (Seymour F.), 20, 27. 
 Harris (W. A.), 47. 
 Harrison (J. C), 23. 
 Harwood (R. G.), 10. 
 Hazlitt (W.), 29. 
 HiGGixs (C), 30. 
 
 Houston (J.), 32. 
 Hudson (A. A.), 12. 
 Hurst (J.), 11. 
 
 Indermaur (John), 24, 25, 28. 
 Jones (E.), 47. 
 Joyce (W. ), 44. 
 Kay (Joseph), 17. 
 Kelke (W. H.), 6. 
 Kelyng (Sir j.), 35. 
 Kelynge (W.), 35. 
 Kotze (J. G.), 38. 
 Lloyd (Eyre), 13. 
 Locke (J.), 32. 
 lorenz (c. a.), 38. 
 Loveland (R. L.), 30, 34, 35. 
 Maasdorp (A. F. S.), 38. 
 Macaskie (S. C), 7. 
 March (John), 35. 
 Marcy (G. N.), 26. 
 Marsh (Thomas), 21. 
 Martin (Temple C), 7, 46. 
 Mattinson (M. W. ), 7. 
 May (H. W.), 29. 
 Mayne (John D.), 31, 38. 
 Mellor (F. H.), 10. 
 Menzies (W.), 38. 
 Moore (S.A.), 30. 
 0'Malley(E. L.), 33. 
 Peile (C. j.), 7. 
 Pemberton (L. L.), 18, 32. 
 Porter (J. B.), 6. 
 Reilly (F. S.), 29. 
 Ringwood (R. ), 13, 15, 29. 
 Robinson (W. G.), 32. 
 Salkowski (C), 14. 
 Salmond (J. W.), 13 
 Savigny (F. C. Von), 20. 
 Seager (J. R.), 47. 
 Short (F. II.), 10, 41. 
 Shortt (John), 47. 
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 Si.mpson (A. H.), 43. 
 Slater (J.), 7. 
 Smith (Eustace), 23, 39. 
 Smith (F. J.), 6. 
 Smith (Lumley), 31. 
 Snell(E. H. T.), 22. 
 Story, 43. 
 
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 Taswell-Langmead, 21. 
 Thomas (Ernest C), 28. 
 Tyssen (A. D. ), 39. 
 Van der Keesel (D. G.), 38. 
 Van Leeuwen, 38. 
 Waite (W. T.), 22. 
 Walker (W. G. ), 6, iS, 43. 
 Watts (C. N.), 47. 
 Wertheimer (J.), 32. 
 Whiteford (F. M.), 20. 
 Whitfield (E. E.), 14. 
 Williams (S. E.), 7. 
 Worthington (S. W.), 29, 40. 
 
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