names of two trustees and the children; in each case there were two trustees and one of the children of Mariner. It was argued, that, inasmuch as the settlement was not of the property of Mariner himself, but only of property purchased by him, it could not have been taken in execution; and that therefore, on the authority of Rider v. Kidder (a) and that class of cases, in which it has been held, that, where property which could not be taken in execution is the subject of a settlement, such settlement does not come within the provisions of the stat. 13 Eliz. c. 5, 1 ought not to hold this case to be within the statute. Those decisions with regard to stock, copyhold property, and the like, are founded upon the terms of the preamble of the statute, which declares it to be" for the avoiding and abolishing of feigned, covinous, and fraudulent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments, and executions, as well of lands and tenements as of goods and chattels, more commonly used and practised in these days than hath been seen or heard of heretofore, which feoffments, gifts, grants, alienations, conveyances, bonds, 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 hindrance of the due course and execution of law and justice, but also to the overthrow of all true and plain dealing, bargaining, and chevisance between man and man." Now, it has been held repeatedly, that an assignment of property which could not be taken in execution is not, within the words of the statute, an assignment of property with the intent to delay creditors, inasmuch as creditors never could have had execution or satisfaction out of such property; and further, in Fletcher (a) 10 Ves. 360. v. Sedley (a), referred to by Sir William Grant in Glaister v. Hewer (b), the Court, without expressing any opinion on the statute, held, that a purchase was not within the statute, inasmuch as it was said, that the party, whose property was sought to be affected, might have given the money to a child, and the child might have made the purchase; and that, unless the purchase itself was substantially affected with fraud, as Lord St. Leonards expresses it in his treatise on Vendors and Purchasers, p. 917, 11th edit., the mere fact that the money of the debtor is laid out in the purchase of land for the benefit of a child, would not be a reason for bringing such purchase within the statute. I think that this rule was founded again upon the same doctrine. It was true, at that time, that money might be given to a child; but it is not true, now, that either cash or notes could be given to a child by a person heavily indebted, without falling within the provisions of the statute. Adopting the decision of Rider v. Kidder (c), the Court of Queen's Bench seem to have thought, that, in the case of bonds or the like, which formerly could not have been taken in execution, but are now being capable of being taken in execution, they would be within the statute: Sims v. Thomas (d). The 1 & 2 Vict. c. 110, expressly enacts, that money and bank notes shall be capable of being taken in execution, and therefore I apprehend that a person largely indebted could not pass over to a child either money or bank notes for the purpose of making a purchase, or, if he did, that his creditors might follow the money, which he had so handed over covertly as against them, into the land or stock, or whatever else had been purchased therewith, and any voluntary gift of it would be void against them. The late case of French v. French(e) shews that (a) 2 Vern. 490. (b) 8 Ves. 199. (c) 10 Ves. 360. (d) 12 Ad. & E. 536. 1856. BARRACK v. M'CULLOCH. Judgment. 1856. BARRACK υ. M'CULLOCH. Judgment. property, 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 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 his wife was a gift to her by her husband, which was void under the statute as against his creditors. I am therefore of opinion, that, assuming the money in this case to have been the money of Mariner, the settlement is void under the statute. The question, however, remains, whether or not this was his money; and that question must be determined by the examination of Mrs. Mariner and M'Culloch. Nov. 20th. Statement. Judgment. The case stood over to this day, when Mrs. Mariner and Mr. M'Culloch were examined in Court, as to whether the money invested by Mariner was his wife's money or his own. The result of that examination is stated in the following judgment: VICE-CHANCELLOR SIR W. PAGE WOOD: Several objections have beeu urged, in point of law, against the attempt made by the Plaintiff to set aside these settlements. At first, it was contended, that the statute had not any application to cases of this description. Those arguments, however, I did not accede to; and the question is now reduced simply to this, whether the moneys invested were the moneys of the husband or of the wife. In the first instance, there appeared to be primâ facie evidence, that the moneys were the moneys of the husband; because, from the entry of the broker, who is now dead, it appeared that he received them from the husband. It seemed to me, therefore, that the onus was thrown upon those who claim under the settlements, of proving that the moneys invested were not the moneys of the husband, but belonged to Mrs. Mariner. The first part of the story set up by Mrs. Mariner was one, unquestionably, which required great sifting; and I should be extremely reluctant to accept it upon the evidence of the party herself, unless it was very materially corroborated by circumstances; for, although not an impossible event, yet that, which was alleged to have occurred, was, to say the least of it, invested with a considerable amount of improbability. The statement was, that she had preserved this sum of 900l., inclosed in her stays, and having it in this manner in her possession as her own separate property, saved out of property settled to her separate use, she had given it to her husband for the purpose of making these investments. The case therefore required to be sifted to the utmost, and, accordingly, the lady and one of the trustees have been cross-examined; and I have now their evidence upon the subject, and also such inferences as may be drawn from the circumstances of the case. A considerable step was made in her favour, when it was proved that there was property settled to her separate use, from which this accumulation might have been made. It appears, that there was a settlement made of some land to her separate use in 1841, long anterior to the transaction in question; and upon the property so settled two houses had been built. There is some discrepancy in the evidence as to what was the exact amount of her money, and the exact amount of her husband's money, applied in the building of the second house; but the matter occurred too long ago for any attempt 1856. BARRACK υ. M'CULLOCH. Judgment. 1856. BARRACK v. M'CULLOCH. now to be made to open that transaction, and counsel, very properly, did not seek to do so. As far as the original transaction is concerned, that property became hers; and whether the second house was mainly built with the husband's money or her own money is not material, the property, unquestionably, when the houses were so built, became hers, and her interest in it was for her separate use. These houses, however, were let furnished, and the furniture appears to have belonged to the husband. It was urged on that part of the case, that it would be for her to shew how much of the accumulation was the produce of that which belonged to her husband, and how much was the fruit of that which belonged to herself. I do not think that the case can be so put, because it appears to me, assuming the statement to be true, (and upon that I shall have more to say presently), that this money was so kept by her in her stays and that she was allowed to accumulate it,-if her husband permitted her from time to time to receive these rents, part of which was the fruit, in some respect, of the furniture which he had put into the houses, which she had to her separate use,-then it would be incumbent on those who contend that this lady cannot now insist on having those savings as her own, as being the savings of property settled to her separate use, to shew me that these receipts were permitted to be made in respect of the double property so situated, at a time when the husband was insolvent, otherwise, I could not enter into any such minute question as that which has been suggested. I think that the onus of proof would be thrown on those who impeach the transaction, to shew that the case is one falling within the statute of Elizabeth. If her story be true, she was allowed by her husband to receive and accumulate all those rents, and, unquestionably she was allowed by him to receive them as her separate |