space may be according to the trade he carries on. As an instance of these covenants, I may mention also the case of Wilson v. Hart. It was a specific covenant entered into with a person, his executors and assigns. And then with respect to this particular covenant, it does seem to be one which the Court cannot fail to take judicial notice of as being a covenant which is extremely common; and every Court of justice has had occasion to consider these brewers' covenants; and therefore the Courts must be taken to be cognizant of the distinction between what are called free public-houses and brewers' publichouses, which are subject to this very covenant. Certainly, in my opinion, we should be introducing very great uncertainty and confusion into a very large and important trade if we were now to entertain any doubt, or suggest any, as to the validity of a covenant so extremely common as this is. I think there would be no ground for that sort of distinction which has been relied upon; namely, that such a covenant might be good for twenty-one, fifty or one hundred years, but that it is not good if it is entered into as part of a transaction where the fee simple of a property is conveyed; and in accordance with such conveyance the covenant is made with the vendor, his heirs and assigns. I think, therefore, that no such objections to the covenant can be sustained, especially when they are raised, as they are raised, at the present stage of this cause; because, although at some future period of this cause, upon a motion, as in the case of Hills v. Croll (7), circumstances may be shewn which render it improper for the Court to interfere, or, as has been suggested, it may be shewn at some future time either that the right claimed by the plaintiff is one which he has placed himself in such a situation as that he ought not to be allowed to exercise it, or that the defendant had not notice of the covenant when he purchased the property. All of these things may be proper grounds of objection upon the hearing of the motion or upon the hearing of the cause, and then it might possibly be said that the case of Hills v. Croll might have some application to the question, But this raises the general abstract question, whether a person stated (7) 2 Ph. 60; s. c. 14 Law J, Rep. (N.S.) Chanc, 898.

to have notice of such a covenant is to be bound by it or not? Then if we are to look at those cases, in my opinion, it is very difficult to reconcile the case of Hills v. Croll with the case of Lumley v. Wagner (8), which last-mentioned case has been repeatedly followed; and if Hills v. Croll is to stand with that case at all it can only be upon the particular circumstances of the case. What we have to deal with here is the general abstract question, and upon that I can only say, that I entirely agree with the conclusion at which the learned Vice Chancellor has arrived, and I think this appeal must be dismissed, with costs.

LORD JUSTICE GIFFARD.-The appeal in this case is from an order overruling a demurrer, and therefore the whole question to be decided is, whether upon the statements in the bill the plaintiff is entitled to any relief. One thing at least I think is certain, and that is, that if the plaintiff cannot sustain a bill in this Court he is without remedy altogether. It is pretty plain that this is a covenant which does not run with the land. Then with respect to the allegations in the bill: the transaction is a simple one; it is a sale by the plaintiff of land; and when he sold that land he stipulated for a particular covenant. The bill states that the plaintiff was at the date of the sale, and has been and still is, a brewer, carrying on a particular business at a particular place in Brighton, and it states that the defendant had notice of the covenant in question, and then it states this, which is very material, in the 14th paragraph of the bill, that "the plaintiff, in exercise of his exclusive right, has always been and now is ready and willing, and previously to the institution of this suit has offered to the defendant, to supply to the orders from time to time of the defendant for consumption in the said 'Duke of Edinburgh' beer-house, ale, beer and porter, all of good quality, in requisite quantities, and at market or fair and reasonable prices, as specified in the same offer"; and the terms of the covenant are, "that Charles Catt, his heirs and assigns, shall have the exclusive right of supplying all ale, beer and porter which may be consumed in every house or other building which may be erected on any other part of the said piece of land, and

(8) 1 De Gex, M. & G. 604; s. c. 5 De Gex & Sm. 485; 21 Law J. Rep. (N.s.) Chanc. 898.

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which shall be opened or used as an inn, public house or beer-shop." And Mr. Catt himself is plaintiff, therefore we have nothing to do with what the state of things might be if he had assigned the deed, or if he had died, or anything of that description; but simply the question between Mr. Catt being vendor and this gentleman, who purchased this property with notice of the covenant in question. Now, first of all, upon that covenant it was said that the case was like Collins v. Plumb, which it certainly is not. If, in the case of Collins v. Plumb, the words had been left out at the end of the covenant, "to the injury of the plaintiff," then the case would have been very like it, because the covenant in -Collins v. Plumb was not to sell to the injury of the plaintiff, but that they might Isell water as long as they did not injure the plaintiff; and therefore on each occasion, as Lord Eldon said, it would have been necessary to try the question whether the sale was to the injury of the plaintiff Jor not. Nothing of that description would be necessary here; as I have already said, we must assume the 14th paragraph of the bill to be true, and therefore it must be admitted that there has been no breach of any kind on the part of the plaintiff in offering to make and making the requisite supply of that which it would be inferred he was bound to make from the contents of the indenture in question. Then, beyond that, it is said that this covenant is uncerttain, which it clearly is not. I do not see how anything can be more certain than -that a man is to have the exclusive right of supplying a particular public-house with ale, beer and porter. There undoubtedly is nothing uncertain about that. And again, it has been held in the case of Holmes v. the Eastern Counties Railway Company (9) that a grant of an exclusive right of that : description contained in a covenant is equivalent to a negative covenant. That being so, it brings the case in principle completely within the cases which have been decided on negative covenants; the cases of Holmes v. the Eastern Counties Railway Company, Rolfe v. Rolfe (10) and Lumley v. Wagner. With respect to the case of Hills v. Croll, there is great similarity between that case and the present. Lord St. Leonards, in his (9) 3 Kay & J. 675. (10) 15 Sim. 88.

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judgment in Lumley v. Wagner, said that he decided that case under the particular circumstances of it. If the principle in Hills v. Croll lays down this proposition, that wherever there is an allegation which the Court cannot enforce, therefore it is to decline to act upon a negative covenant, all I can say is, that the principle laid down in Hills v. Croll is distinctly opposed to Rolfe v, Rolfe, and is distinctly opposed to Lumley v. Wagner.

Then with respect to its being a covenant in restraint of trade. That again is clearly not so; and in point of fact it does not go beyond the ordinary brewers' covenant, except in this particular, that in the ordinary brewers' covenant you generally have the lessor and lessee, or the mortgagor and mortgagee, whereas this is a sale of a piece of land under different circumstances. If authority were wanted, there is abundance of authority on the subject that a covenant of this description is not void according to the principles which are clearly laid down in this court.

Upon all these grounds I am clearly of opinion that the demurrer was properly overruled in the Court below, that there is no ground for this appeal, and that it must be dismissed with costs.

Solicitors - Messrs. Senior, Attree & Johnson, agents for Messrs. Hill & Fitz-Hugh, Brighton, for plaintiff; Mr. H. Smith, agent for Mr. Dempster, Brighton, for defendant.

LORDS JUSTICES. ALTON V. HARRISON,
July 16.
POYSER V. HARRISON.

Deed Conveyance fraudulent within 13 Eliz. c. 5.

A person being indebted to five persons, as well as many others, and being aware that a writ of execution was about to be executed by one of the other creditors, executed a mortgage substantially comprising the whole of his property in favour of the five creditors. Under the mortgage-deed, the debtor was to remain in possession until default should be made in payment of the five debts at the expiration of six months, or until execution should be issued against his property:Held, that the deed was not void within the statute 13 Eliz. c. 5.

It makes no difference as regards the act 13 Eliz. c. 5. whether or not a deed executed

The question on this appeal from a decision of Stuart, V.C. related to the validity of a deed of trust executed for the benefit of five creditors of the grantor.

T. L. Harrison, a nail-maker at Belper, was, on the 8th of June, 1868, by an order made in these suits, directed to bring into court on the 2nd of November, 1868, to the credit of the causes, the sum of 1,3277. 7s. 3d. which had been found by the chief clerk to be due from him as a trustee. The order was served upon him on the 1st of October. At that time Harrison was considerably indebted to various persons.

On the 24th of October, the indenture in question was executed, by which Harrison conveyed to two trustees certain freehold property, and also assigned to them certain personal effects, subject to a proviso that if he should, on the 29th of April, 1869, pay to five of his creditors who were parties thereto the several debts mentioned in the schedule, the property should be reconveyed and retransferred. The creditors covenanted in the mean time not to sue; and it was provided that Harrison should be permitted to remain in possession of the property for six months, but so as not to let in or permit any execution, extent, sequestration, or other process against the real or personal estate comprised in the deed, or against Harrison, his heirs, executors or administrators, in respect thereof; and in case any such should be attempted to be enforced, the permission thereby authorized was to cease. A power of sale was given to the trustees in case default should be made in payment of the debts.

The deed was duly registered as a bill of sale. It substantially comprised all Harrison's property.

Harrison having failed to pay the money into court in accordance with the order, a writ of sequestration was issued, under which, on the 23rd of December, 1868, the sequestrators took possession of the freehold property and seized the personal effects mentioned in the deed. On the following day the trustees gave notice of the deed to the sequestrators, and required possession to be delivered to them as owners of the property. A motion was then made in the suit by the trustees of the deed that

any

draw from possession, and for an inquiry as to damages. The sequestrators also moved for leave to sell the property. On these motions coming on, an inquiry was directed as to whether the trustees had and what interest in the property. The chief clerk having certified that the trustees had no interest in the property, they moved to vary the certificate, when the Vice Chancellor held that the deed was valid, and varied the certificate accordingly, by finding that the trustees were entitled to the property. The sequestrators appealed.

Mr. Mackeson and Mr. W. W. Cooper, for the appellants.-This deed was fraudulent within the statute 13 Eliz. c. 5. These cases all depend upon the intent. A debtor may at any time pay any one of his creditors in preference to others; but it must be a real payment in cash. A mortgage of all his property does not fall within that doctrine, and there is no case where such a mortgage has been supported. From

See Evans v. Jones, 4 Law J. Rep. (N.S.) Exch. 25; s. c. 3 Hurls. & C. 68. The words of the act of Elizabeth may be compared with the almost identical words in the Bankrupt Act (12 & 13 Vict. c. 136. s. 67). It cannot and will not be contended that this deed would not have constituted an act of bankruptcy within the latter act. The like inference must be drawn that it comes within the earlier act

Stewart v. Moody, 1 Cr. M. & R. 777; s. c. 4 Law J. Rep. (N.s.) Exch. 55. Goodricke v. Taylor, 2 De Gex, J. & S. 135.

Ex parte Foxley, Law Rep. 3 Ch. 515.

[LORD JUSTICE GIFFARD.-The two acts have very different objects. I do not think that inferences can be drawn in the same way in both cases. We have nothing to do with acts of bankruptcy, and I cannot see any application of cases concerning bankruptcy. Have you not to satisfy me that the arrangement was one for the debtor's own benefit?]

We say that the circumstances apparent on the face of the deed and the facts which have been proved sufficiently demonstrate fraud. There is no case where a conveyance of this kind for the benefit of particular creditors has been supported

Nunn v. Wilsmore, 8 Term Rep. 521. Mr. Dickinson and Mr. Solomon, for the trustees of the deed, were not called upon.

LORD JUSTICE GIFFARD.-There is no doubt that Harrison executed this deed at a time when he knew that a writ of execution would be issued against him for not obeying the order to pay in money. I think, however, that the law has been accurately laid down by the Vice Chancellor consistently with a large body of authority, His Honour says: "The question in this. as in all other cases, is, as to the bona fides of the transaction. If the deed of mortgage and bill of sale was executed by Harrison honestly for the purpose of giving a security to the five creditors, and was not a contrivance resorted to for his own personal benefit, it is not void, but must have effect." There is no doubt that under this deed these five creditors are to have the property, and are secured by means of it. Two arguments have been raised: first, from the proviso giving special powers to the trustees, under which the debtor obtains, it is said, a benefit; and, secondly, from the fact that the deed includes the whole of the property; and these, it is contended, prove the deed to be fraudulent. As to the proviso, I cannot infer from it that the deed is not intended to operate according to its tenor. It was a mortgage which was not to become absolute unless execution issued. If execution issued, then the mortgagees' powers were to become at once exercisable, and the trustees were to take possession. The evidence also shews that this deed was to have this effect. As to the second point, I may observe that we are not now dealing with the law of bankruptcy. I asked, during the argument, why proceedings in bankruptcy had not been taken. The answer was, that the appellants relied upon the invalidity of this deed. If this appeal succeeded, the only effect would be that the sequestrators would get paid in full whilst the other creditors would get nothing, a case exactly similar to that now complained of. I have no hesitation in saying that, if

Baron and Feme-Equity to a Settlement -Debts of Wife before Marriage.

The creditors of a woman remaining unpaid after her marriage in respect of debts incurred before the marriage, have a right to be satisfied out of her property, in priority to any equity to a settlement out of it which she may possess. Therefore the assignee of the bankrupt husband, against whose estate the wife's debts had been proved, has a right to set aside a post-nuptial settlement of the wife's property. And the wife's equity to a settlement can only arise when an amount equal to the amount of her debts has been provided out of her estate.

The plaintiff in the first of these suits, Augusta Barnard, was the wife of the defendant J. G. Barnard, and the object of that suit was to obtain the performance of the trusts of a post-nuptial settlement, dated the 17th of January, 1862, whereby an annuity of 300l. for Mrs. Barnard's life was settled to her separate use, subject to certain prior charges; the defendant Ford being the trustee. The annuity had been the property of Mrs. Barnard before her marriage.

At the time of the marriage (the 22nd of October, 1861) Mrs. Barnard was largely indebted to various persons, as also was Mr. Barnard.

On the 15th of November, 1862, Mr. Barnard was adjudicated a bankrupt.