The Practice of Conveyancing

made under any circumstances indicating fraud, as in the prospect of bankruptcy, it would be set aside in equity. And where a deed of separation is executed during cohabitation, and not intended to be followed by an immediate separation, it has been held void: (Hindley v. Lord Westmeath, 6 B. & C. 200.) Still, it has been held (Rodney v. Chambers, 2 East, 283), that a provision for future separation, which is made dependent on the approbation of trustees, is not void. If the husband and wife, after a separation, are reconciled and live together again, it seems that those acts will avoid the deed: (St. John v. St. John, 11 Ves. 536.) But in a case where it was expressly provided that the separate maintenance should continue until the parties should agree to cohabit and live together again, to be testified by some writing under their hands, it was held that future cohabitation, without such agreement in writing, did not determine the settlement: (Gawdon v. Draper, 2 Ventr. 217.)

As to separation deeds between parties who have cohabited together, but are not lawfully married.]-Deeds of separation are not solely confined to separations by husband and wife, for they are sometimes resorted to in cases where a man and woman have been cohabiting together without having gone through the marriage ceremony. Arrangements of the latter kind are sometimes carried out by a deed of covenant, and sometimes by a bond, by which the gentleman binds himself in a sufficient penalty to pay the lady either a certain specified sum, or an annual payment for some stated period.

Distinction between a bond given in consideration of future and past cohabitation.]—In the case of bonds given to a kept mistress, a distinction has been taken as to whether such bonds were in consideration of present or future cohabitation. If given in consideration of future cohabitation, such assurances are invalid, as being contra bonos mores, and holding an inducement to crime: (Rex v. North Wingfield, 1 B. & Ad. 912.) But when given in consideration of past cohabitation, the transaction is viewed in a totally different light; for in the latter case, so far from holding out an inducement to crime, it affords the erring female the means of leading a more virtuous life for the time to come (Turner v. Vaughan, 2 Wils. 339); nor will the conduct of a woman, however abandoned, invalidate a bond given for past cohabitation (Hill v. Spencer, Amb. 641); neither will the fact of her having had a criminal connection with another man after she was taken in keeping avoid the security: (ib.) A different

doctrine from that above laid down seems, however, at one time to have prevailed in equity, where, if it had been charged in a bill that the defendant was a common prostitute, and had drawn on the obligor to give the security, the court would have relieved against it: (Whaley v. Norton, 1 Vern. 484.) Still, it appears that in most of these cases the ground of relief was founded upon the circumstances of the securities having been given previously to the cohabitation, which, being a consideration of a criminal nature, the court was bound to relieve against; but however severely courts of equity might formerly have looked upon securities of this kind, they have latterly refused to relieve an obligor against a bond given for past cohabitation, on the ground already stated, that such a provision enables a woman in such an unfortunate situation to lead a life more conducive to her happiness, and to public morality: (Bainham v. Manning, 2 Vern. 242; Gray v. Mathias, 5 Ves. 286.) Courts of equity also formerly, even in cases where they would not relieve the obligor himself, would have afforded this relief to his representatives: (Mathews v. Henbury, 2 Vern. 187.) But it does not seem that this distinction would be now recognized, and that where relief would be refused to the party himself, it would not be afforded at the request of his representatives, however far the court, under the circumstances of the case, might refuse to assist the party claiming under the bond. And it seems that equity will in no case relieve the obligor on his own application: (Spicer v. Hayward, Pre. Cha. 114.)

Whether equity will refuse to assist the woman on the ground of the obligor being a married man.]—But although courts of equity will not relieve the obligor upon his own application, they would not formerly have lent their aid to enforce the securities where the consideration for past cohabitation was with a married man, and the woman herself was aware of that fact (Priest v. Parrot, 2 Ves. 160), although it was otherwise where she was unaware of the circumstance of the man being married (Annandale v. Harris, 2 P. Wms. 432; 3 Bro. P. C. 443); but in a modern case in which the question arose, the Vice-Chancellor sent a case to the King's Bench to inquire whether the circumstance of the defendant being a married man was a good defence at law to an action on such a bond, when that court certified that it was not a good defence; so that the distinction as above stated may now be considered as exploded: (Nyne v. Moseley, 6 B. & C. 133; S. C., 9 D. & R. 165; 2 Sim. 161.)

Where fraud has been practised upon a woman, equity will relieve her.]-And in all cases where any fraud has been practised upon the woman, equity will relieve her. As, where a man having debauched a young female, and intending afterwards to deceive her, made a settlement upon her of 30l. a-year for life out of an estate not belonging to him, the court decreed him to make it good out of an estate which was his own property; and this decree was afterwards confirmed upon appeal to the House of Lords: (Carew v. Stafford, 1 Eq. Ca. Abr., 427.) So, where Sir W. B., having seduced Mrs. Ord, then a young lady of about fourteen years of age, of a good family, and entitled to 12001. fortune, settled upon her 360l. per annum for years, but upon an encumbered estate, and Mrs. Ord dying, her administrator brought a bill in order to disencumber the land which was charged with the annuity, and was relieved accordingly : (Ord v. Blackett, 2 P. Wms. 433.)

Bonds of the above kind being purely voluntary, the payment of them will be postponed in favour of creditors, but not of legatees.]-But bonds of the above kind being purely voluntary, the payment of them will be postponed until all the obligor's creditors, as well those by simple as by specialty, are fully satisfied; but if the personal estate proves insufficient to discharge such bonds, they must be paid out of the real estate, if there be any: (Jones v. Powell, 1 Eq. Ca. Abr. 84, pl. 2.) And bonds of this nature will be entitled to priority in payment to legacies, for in the former instance the right is transferred in the obligor's lifetime, whereas, in the case of the legacies, such right does not accrue until his death; and as both species of gifts are voluntary, so, according to the long-established maxim, "qui prior est tempore potior est jure," the right which does not arise until the testator's death, must be postponed to a right created in his lifetime: (Fairefeard v. Bowers, 2 Vern. 202; Jones v. Powell, supra.)

How bonds of the above kind are usually penned.]-Bonds given for the above-mentioned purposes usually recite that the obligor and lady, having lived together, mutually agree to live separate from each other, and that the obligor has agreed to make a settlement on the lady, setting out at the same time the nature of the settlement, with a condition for avoiding the bond in case the obligor carries out the settlement accordingly: (see the form 1 Con. Prec., Part IV., Section IV., No. IX., clauses 1, 2, and 3, pp. 844, 845,

2nd edit.) Sometimes the payments of the allowance to the lady are restricted to such time only as she shall remain single, or until she shall attempt to dispose of such payments by way of anticipation (id. ib. clause 4, p. 485); sometimes it is made conditional on her leaving the neighbourhood, or not coming into that in which the obligor resides, or so long as she shall abstain from making any other demand upon him beyond that which is secured to her by the bond; any of which acts on her part are to render the bond void: (id. ib. clause 4.) In some instances, instead of the payments being made to cease upon the lady's marriage, such payments are directed to be made to her separate use; but it is generally provided that she is to have no power of anticipating the growing payments, and that on attempting to do so, she is to forfeit all benefit under the bond: (see the form 1 Con. Prec., Part IV., Section IV., No. X., clauses 4 and 5, pp. 847, 848, 2nd edit.)

Where the provision is by way of covenant.]—Where the provision is made by way of covenant, the deed is penned in the same manner as an ordinary deed of separation between husband and wife; and the allowance to her is provided for in the same manner as where such provision is secured by bond: (see the form 1 Con. Prec., Part IV., Section IV., No. VII., pp. 833, 836.) But where the gentleman is in nowise liable for the lady's debts, no clause of indemnity is necessary to protect him from any claims of that nature, consequently no clause of that kind usually is, or ought to be, inserted in the deed.

Where a provision is also made for natural children.]—It sometimes occurs, that in addition to the allowance for the maintenance of the lady, the same instrument contains a provision for her natural children, which is effected in precisely the same way as a settlor would provide for his lawful children by a marriage or post-nuptial settlement, and the deed contains the same clauses, authorizing the appointment of new trustees, and indemnity to purchasers and trustees, as in either of the two above-mentioned kinds of settlements: (see the form 1 Con. Prec., Part IV., Section IV., No. VIII., pp. 837, 841, 2nd edit.)

CHAPTER V.

STAMP DUTIES ON SETTLEMENTS.

Ad valorem duties were first charged upon settlements by the General Stamp Act (55 Geo. 3, c. 184), by which a duty commencing at 17. 15s. was imposed on the settlement of any money or stock on sums exceeding 1007. and not amounting to 1,000l., and gradually increasing until the duties arrived at the sum of 251., which was the highest rate of duty charged upon settlements. The new duty under the act 13 & 14 Viet. c. 97, is at the rate of 5s. upon every 1007., and is therefore a considerable increase upon sums exceeding 7007., whilst upon sums below that amount there is, as there ought always to have been, a reduction of the duty, which is now assessed upon a fairly graduated scale, as may be perceived by the following comparative table of the old and new duties.(')

Settlement of any Sum of Money or Stock.