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1865.

MONTEFIORE

บ.

BEHRENS.

In 1846, Mrs. Behrens became entitled to a legacy of 5007., which was transferred by the executors to the trustees of the settlement, to be held on the same trusts as those expressed in the settlement of 1843, and a memorandum to that effect was endorsed on the settle

ment.

Mrs. Behrens died in 1854.

In March, 1858, Mr. Hughes obtained a charging order on the 500l. for 54l. 6s.; and in April, 1858, Messrs. Camps and Partridge obtained a charging order on the 500l. for 3l. 15s. 11d. debt, and 91. 8s. costs.

In March, 1864, Mr. Behrens was duly declared an outlaw in the county of Middlesex.

This suit was instituted by the trustees for the performance of the trusts, and a question arose as to the forfeiture by Mr. Behrens of his interest in the settled property.

Mr. Jessel for the Plaintiffs.

Mr. Renshaw for the children.

Mr. Freeman for the Defendant Hughes. The 500l. belonged to the husband in right of his wife, and the wife, who was then sufficiently provided for by the prior settlement of the 10,000l., had no equity to any further settlement. Practically, therefore, the 5001. belonged to Mr. Behrens himself, and the law does not allow a man to settle his own property in such a way as to go over on his bankruptcy, or in any other way so as to defeat the legal rights of his creditors.

The

The clause of forfeiture is therefore void; Higinbotham v. Holme (a).

The charging order created no forfeiture; it was no act of the debtor. The charge, under the 1 & 2 Vict. c. 110, s. 14, was not one created by the debtor himself, and it only gave to the creditor the same remedies as if the debtor had charged the 5001. There was no forfeiture, at all events, until the outlawry.

Mr. Pemberton, for Camps and Partridge, cited Whitfield v. Prickett (b).

The MASTER of the ROLLS.

I am against you on both points. This was the wife's property, and I think that she was entitled to have it settled if she and her husband thought fit that it should be, and that he could give up his marital claims without waiting to be compelled to do so. It is the same thing as if the settlement had been made by the Court, or as if the trustees had resisted payment of the legacy until a settlement of it had been made. According to the authorities, the wife herself might have filed a bill for that purpose, and this is certain: -that if a suit had been instituted, and the husband and wife had agreed on these as the terms of a settlement, the Court would have settled the legacy at once, and then all the trusts of this settlement would have been valid and binding.

The words are these: the income is to be paid to him until by his act or default or by operation of law it becomes the property of another person. He has done that by which (except for the proviso) it would become property of the creditor.

the

(a) 19 Ves. 88.

VOL. XXXV—I.

(b) 13 Sim. 259.

H

It

1865.

MONTEFIORE

v.

BEHRENS.

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It is impossible to say that a charging order is not a charge. If I were to decide otherwise, I must then hold that a charge is not a charge. It is true that a judgment creates a charge on lands, but not on stock, and that you must obtain a charging order upon the judgment for that purpose; but that has been obtained, and it has become a charge on the property charged.

The result is, that the fund must be handed over to the children.

Nov 22.

Dec. 6.

The principle

DE HOGHTON v. MONEY.

of this Court, ALL the parties to the present suit were officers in a volunteer rifle regiment, whose head quarters were at Hoxton.

established by

a great num-
ber of cases,
is, that it will
not interfere
between volun-
teers (in the
legal sense of
the term), but

will leave them

The Defendant, Mr. Cotton, kept a tavern at Hoxton, adjoining to which there was a piece of leasehold land used as a drilling-ground for the regiment. In 1861, Mr. Cotton, thinking it would be beneficial to him in remedy at law, increasing and improving his business, by establishing whatever that the rifle corps in that place, purchased this piece of land, may be. The Court will which was held at a peppercorn rent, for 500l.

to their

neither, at the instance of the donor who

Some

repents his gift, cause the deed of gift to be delivered up, nor will it, at the instance of the donee, interfere to complete an imperfect deed of gift.

A purchaser for value of real estate cannot come into the Court of Chancery to have a prior voluntary deed, void under the 27th Eliz. c. 5, delivered up to be cancelled. The Court, in such a case, leaves both parties to their legal rights and remedies.

A. B. entered into a voluntary agreement as to a leasehold with C. D., and he afterwards contracted to sell it to E. F. for valuable consideration :- Held, that a suit by E. F. against A. B. and C. D., to have the rights of the parties declared and the voluntary agreement cancelled, could not be maintained.

Some negotiations afterwards took place between Mr. Cotton and Mr. Money (the lieutenant-colonel of the regiment) as to this land. On the 16th of February, 1862, Mr. Money wrote to the Plaintiff (the colonel of the regiment) pressing him to buy the land, and to let it at as small a rental as he could to the corps [see post, p. 103].

To this the Plaintiff replied, that he was prepared to purchase for 5307. and sublet it to the regiment for seven years for 501. a year [see post, p. 104].

On the 3rd of March, 1862, the Plaintiff sent Mr. Money a cheque for the purchase-money; it was, however, never paid over, but was returned to the Plaintiff some time afterwards. The purchase from Cotton was not completed, and some misunderstanding respecting the matter having taken place between Cotton and Mr. Money, Cotton, on the 11th of March, 1862, wrote to Money stating he was willing to give the regiment "the full and entire use" of the piece of ground for the remainder of the lease, if the regiment should so long exist, and that he would give 2001. for building. The regiment was to level the ground and pay 17. per annum as an acknowledgment that the ownership of the lease still remained with him."

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Mr. Money, on receiving this letter, signed it and had it stamped as a lease, and paid the 17. rent. Disagreements subsequently took place in consequence of Mr. Money having claimed the land.

On the 24th of May, 1864, Cotton agreed in writing to sell the land to the Plaintiff for 550l. without any reservation whatever (except as to a disputed right claimed by Mr. Money in respect of the letter addressed to him by Mr. Cotton dated the 11th of March, 1862).

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1865.

DE HOGHTON

v.

MONEY.

On the 10th of June, 1864, Money purported to assign the leasehold to the Defendant Hook (a captain in the regiment) and to himself in trust for the corps.

This suit was instituted on the 20th of July, 1864, by De Hoghton against Money, and against Cotton and Hook, insisting that the letter of the 11th of March, 1862, had been obtained from Cotton by "surprise, concealment and improper influence," and was void.

The bill prayed a declaration of the rights of the parties; that the letter of the 11th of March, 1862, might be cancelled; that the conveyance to Hook might be declared void; for the specific performance of the agreement of the 24th of May, 1864, and that Cotton might execute a conveyance, and that Money and Hook might join in it.

Mr. Baggallay, Mr. Jessel and Mr. W. D. Bruce, for the Plaintiff, cited Cooke v. Lamotte (a).

Mr. Southgate and Mr. Stock, for Cotton, did not oppose, and referred to the 8 & 9 Vict. c. 106.

Mr. Selwyn, Mr. C. T. Simpson and Mr. T. Salter, for Money and Hook, referred to 26 & 27 Vict. c. 65, s. 25; Tasker v. Small (b).

Mr. Jessel in reply. Wright v. Vernon (c).

(a) 15 Beav. 240.
(b) 3 Myl. & Cr. 63.

(c) 7 H. of L. Cus. 35.

The

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