So Lord Hardwicke said (d): "I do not know, in the case of fraudulent conveyances, that 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 the law, and leaves them to their remedy by elegit without interfering one way or the other."

This decision has been followed in Reese River 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 (e).

void.

A settlement impeached by creditors under 13 Eliz. How far such c. 5, is only declared void as against creditors. For settlement is every other purpose it is good; or, if the claims of creditors are satisfied, the surplus is bound by the trusts of the settlement (ƒ).

*So a settlement impeached by a subsequent [*529] purchaser under 27 Eliz. c. 4, is only declared void as against that purchaser; the settlement is only avoided to the extent of that purchaser's interest (g).

dente lite
whether

So, to, Lord Hardwicke, in Higgins v. York Build- Profits reings Co. (h), refused to order an account of profits re- ceived penceived by the voluntary settlor or his grantees since the filing of the bill; but see Blenkinsopp v. Blenkin- decreed back. sopp (i), where such an order was made against the trustees of the settlement.

In the same way as to deeds which are fraudulent Same as to 27 under the statute 27 Eliz. c. 4, the Court simply de. Eliz. c. 4. clares them void as against the subsequent purchaser, and leaves both parties to their legal rights and remedies.

It has never been held that a purchaser could come (d) Higgins v. York Buildings Co., 2 Atk. 107.

(e) L. R. 7 Eq. 347; Cornish v. Clark, L. R. 14 Eq. 184; Seton, 4th ed. 1369-1371.

(f) Cornish v. Clark, L. R. 14 Eq. 184; Tanqueray v. Bowles, L. R. 14 Eq. at p. 157; Taylor v. Coenen, 1 Ch. D. 636; In re Maddever, 27 Ch. D. at p. 529; ante, pp. 68, 69, 463, 464.

(g) Dolphin v. Aylward, L. R. 4 H. L. 499, 500; In re Walhampton Estate, 26 Ch. D. 393; ante, pp. 208, 464.

(h) 2 Atk. 107.

(i) 12 Beav. 568, S. C. 1 De G. M. & G. 469.

Cancellation.

into a Court of equity to have a voluntary deed delivered up to be cancelled (k).

If the action be one for specific performance, the Court declares the voluntary settlement void as against the subsequent purchaser, and makes an ordinary order for specific performance (1); and trustees under such settlement will in such a case be directed to convey, or concur in conveying, the property to the purchaser, or as he shall direct (m).

13 Eliz. c. 5. Where a deed is declared void against creditors, and Fraudulent the settlor is not a bankrupt, the Court will not order deed not de- it to be delivered up to be cancelled if any property livered up to be cancelled passed by it, but will direct the trustees or grantees if property under it to do and concur in all acts necessary for makpassed by it. ing the property therein comprised available for creditors (n). The reason of this is that the grantees are entitled subject to the rights of creditors, and [530] *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 (p).

Surplus applicable to uses of settlement.

Deed when cancelled.

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 be set aside entirely, if the effect would otherwise be to work an injustice to the other parties to the deed, innocent of the fraud; for, if those other parties were not aware of the fraud on creditors, the state of circumstances on

(k) De Hoghton v. Money, L. R. 1 Eq. 159.

(1) Price v. Jenkins, 4 Ch. D. 485, S. C. 5 Ch. D. 619.

(m) Willatts v. Busby, 5 Beav. 193; Daking v. Whimper, 26 Beav. 568; Seton, 4th ed. 1374.

(n) Bott v. Smith, 21 Beav. 511, 517; Reese River Silver Mining Co. v. Atwell, L. R. 7 Eq. 347, 352; Cornish v. Clark, L. R. 14 Eq, 184; In re Maddever, 27 Ch. D. at p. 529.

(0) Burton v. Vanheythuysen, 11 Hare, 134; Cracknell v. Janson, 11 Ch. D. 14; Shurmur v. Sedgwick, 24 Ch. D. 597.

(p) French v. French, 6 De G. M. & G. 95, 103; ante, p. 464. (q) Barling v. Bishopp, 29 Beav. 417, 421; Tarleton v. Liddell, 17 Q. B. 390, 414, see S. C. in Chancery, 4 De G. & Sm. 540; Seton, 4th ed. 1369.

which they entered into the contract is altered, and they would be wronged by a partial avoidance of the instrument (r), and in such a case the Court can order the deed to be cancelled (s).

The Court has no power to set aside or reverse a re- Recovery. covery to bar an estate tail because the deed to lead the uses was fraudulent within the statute, for the recovery enures nevertheless to bar the estates of those in remainder (t).

is an outlaw.

Where a settlor has been outlawed after making a Where settlor settlement, void against his general creditors, no 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 (u).

*

As soon as a settlement is declared void against Reconveycreditors, it becomes absolutely void as far as [* 531] ance when it is impeached (v). Where, therefore, a deed is abso- ordered. lutely set aside for fraud, it is incorrrect to order a reconveyance by the person claiming under it (w); but where the estate has been conveyed to a third person, as an instrument, not privy to the fraud, or if the deed is set aside upon paying so much money, then, till payment, the estate remains, and a reconveyance is proper (x).

It seems doubtful whether registration of an action Lis pendens. to set aside a deed appointing real estate to such uses as A. should appoint, and in default to B., as void against creditors of B. as a lis pendens, is a sufficient protection to them (y).

(r) Tarleton v. Liddell, 17 Q. B. 390; and see Davidson v. Russel, 2 Dick. 761.

(8) Tarleton v. Liddell, 17 Q. B. 414.

(1) Tarleton v. Liddell, 17 Q. B. 390, 414, see S. C. in Chancery, 4 De G. & Sm. 538, 540.

(u) Goldsmith v. Russell, 5 De G. M. & G. 547-555.

(v) See O'Connor v. Bernard, 2 Jo. (Ir.) 654, 698 et seq.

(w) See Tarleton v. Liddell, 17 Q.B.390,414; Davidson v. Russel, 2 Dick. 761; Murray v. Mann, 2 Exch. 538, 541; Attorney-General v. Magdalen College, 18 Beav. 255; Smith v. Hurst, 10 Hare, 30; see Seton, 4th ed. 1368, 1371.

(x) Per Lord Loughborough in Bates v. Graves, 2 Ves. 295. See also Stump v. Gaby, 2 De G. M. & G. 623; Attorney-General v. Magdalen College, 18 Beav. 223, 255; Vorley v. Cooke, 1 Giff. 230, 235-7; Tarleton v. Liddell, 17 Q. B.390, 408.

(y) Beyfus v. Bullock, L. R. 7 Eq. 391.

law on the statutes of Elizabeth.

The exercise of a power of appointment by a debtor in a deed, by which the estate is limited to him in default of appointment by him, in favour of a purchaser for value will be restrained by injunction at the instance of a creditor who impeaches that deed as void against him (y).

Concurrent The Courts of equity have always had jurisdiction in jurisdiction matters of fraud (a), and have always exercised a conof equity and current jurisdiction with the Courts of law on these statutes of Elizabeth on fraudulent conveyances. Equity, in fact, "determined touching charities and frauds long before the making of any statute concerning the same (b), and the principles of decision at law and equity must be taken to be the same (c).

A Court of equity, it has long been settled, could decree a deed fraudulent under these statutes without any [ * 532 ] trial at law (d); * and even where the conveyance was not to trustees, but direct to the volunteers (e), 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 this Court formerly took cognizance of (ƒ); and even in cases where the settlement could be deemed fraudulent at law, a man might come into equity for the sake of further relief (g).

In Bright v. Eynon (h) 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. But the interposition of the former was often necessary for the better investigating truth and to give more complete redress.

(a) See Sowerby v. Warder, 2 Cox, 268; Colt v. Woollaston, 2 P. Wms. 154, 156; Stent v. Bailis, ibid. 220, 3 Bl. Com. 437, 439; Chesterfield v. Janssen, 2 Ves. 125, 155; Hill v. Lane, L. R. 11 Eq. 215.

(b) Hungerford v. Earle, 2 Vern. 261-2.

(c) Bales v. Graves, 2 Ves. Jun. 295; Adames v, Hallett, L. R. 6 Eq. 468; Russel v. Hammond, 1 Atk. 15; Hobbs v. Hull, 1 Cox,

445.

(d) White v. Hussey, Prec. Ch. 13-15.

(e) Townend v. Toker, L. R. 1 Ch. 446, 458.

(f) Leukener v. Freeman, Freem. Ch. 236-7; Prec. Ch. 105. (g) White v. Sansom, 3 Atk. 411; Bennet v. Musgrove, 2 Ves. 51, 52; Arundel v. Phipps, 10 Ves. 148. ·

(h) 1 Burr. 395.

As to cases under these statutes where the plain- Where tiff might have recovered at law, Lord Hardwicke laid remedy could it down (i) that, if it was merely a case of constructive be had at law. or presumed fraud, equity would leave the purchaser to his remedy at law; but that whenever 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.

The Chancery Division of the High Court of Jus- Under Juditice (k) had the following among other business ex- cature Acts pressly assigned to it by the Judicature Act, 1873 (1) :

The administration of the estates of deceased persons;.

The dissolution of partnerships, or the taking of partnership or other accounts;

The redemption or foreclosure of mortgages;

*The rising of portions or other [* 533 ] charges on land;

The sale or distribution of the proceeds of property subject to any lien or charge;

The executions of trusts, charitable or private;

The rectification, or setting aside, or cancellation of deeds or other written instruments;

The specific performance of contracts between vendors and purchasers of real estate, including contracts for leases.

The partition or sale of real estates.

The three Common Law Divisions had assigned to them all causes and matters pending in the respective Courts at the commencement of the Judicature Act, 1873; and also all causes and matters within their respective exclusive cognizance if the Judicature Act, 1873 had not passed (m).

(i) In Bennet v. Musgrove, 2 Ves. 51-2. See Ramshire v. Bolton, L. R. 8 Eq. 294.

(k) Judicature Act, 1873, ss. 3, 4, 16, 24, 32; Ord. 16, Dec. 1880; see Wilson, 4th ed. 42-46.

(1) Section 34. See Rogers v. Jones, 7 Ch. D. at p. 399. (m) Judicature Act, 1873 s. 34.

action usually in Chancery Division.