and bona fide (i) lawfully conveyed or assured to any person or persons, not having at the time of such conveyance or assurance any manner of notice or knowledge of such covin, fraud, or collusion as aforesaid (). This statute only applies to such things as may be taken in What property within. execution, and, therefore, previous to 1 & 2 Vict. c. 110, the assignment of a bond was not within the statute (7); nor an assignment of stock (m); nor of any chose in action ("); nor were copyholds, it seems, within the Act (0), unless by tenure or special custom they were subject to debts (0). But it seems that such property might have been affected by that Act, taken in connexion with the Insolvent Debtors Act, in the event of a subsequent insolvency (), or taken in connexion with the subsequent death of the debtor, when the creditors might reach all the personal property (»); and now cash, bank notes, and stock, and all such choses in action as by virtue of 1 & 2 Vict. c. 110, s. 12 (p), may be taken in execution, fall within the Act (2), as also a policy of insurance (); and even property which cannot be taken in execution under 1 & 2 Vict. c. 110, is, in bankruptcy, brought within 13 Eliz. c. 5 (s); as also copyholds, which are now subject to execution (8). (3.) Presumption of fraud from continuance in possession. Continuance in possession by the grantor, after a bill of sale, is a sign of a trust for his benefit; and the effect thereof, in cases irrespective of the statute, has been already considered (u). It is unnecessary that the assignment of the chattels should be followed by possession, in order to make it valid against the assignor himself, or against his creditors, who are cognisant of and take part in the arrangement under which it is made, or which proceeded upon the assumption of its validity, or against strangers (∞). (i) See 1 Fonbl. Eq. 270-275. (k) See Morewood v. S. Yorkshire R. Co. 3 H. & N. 798. (1) Sims v. Thomas, 12 A. & E. 536. (m) Dundas v. Dutens, 1 Ves. jun. 196. (n) Norcutt v. Dodd, Cr. & Ph. 100; 10 L. J. Ch. 296, N. S. (0) Mathews v. Feaver, 1 Cox, 278. (p) Sup. pp. 147, 148. (q) Barrack v. McCulloch, 3 K. & J. 110. (r) Stokoe v. Cowan, 29 Beav. 637; 7 Jur. N. S. 901. (s) 1 Sm. L. C. 38-9, ed. 6; 39, ed. 8. (u) Sup. p. 476, and cases there cited. (x) Steel v. Brown, 1 Taunt. 381; Robinson v. McDonnell, 2 B. & Ald. 134; Bessey v. Windham, 6 Q. B. 166; White v. Morris, 11 C. B. 1015; Olliver v. King, 8 De G. M. & G. 110. Tenants in common. Unfinished chattel. Earlier cases qualified. Mortgage. Neither is the possession of the assignor fraudulent where he is tenant in common with the purchaser, because the possession of one tenant in common is the possession of all (y). The possession is not fraudulent as between the contracting parties where the assignee lends the goods, or lets them on hire to the debtor if they are publicly purchased, and a bill of sale is taken from the sheriff (). A fictitious sale without assignment resting upon a receipt and delivery may be avoided (a). The rule as to continuance in possession also does not apply to an unfinished chattel which, having been appropriated as the property of the assignee by payment of part of the price or other equivalent, is left in the assignor's possession during a reasonable time for completion or repair. Such is an unfinished ship in the yard of the builder (b); and the right of the assignee will not be affected by a particular custom of the assignor to build ships for sale on his own account (c). The earlier decisions in regard to retention of possession (d) have been qualified by the later cases. Thus the notoriety of the transfer will negative the presumption of fraud, as in the case of seizure by a sheriff (e); and although remaining in possession is a very material circumstance where the conveyance is absolute, yet where the transaction is a mortgage, the absence of change of possession is no evidence of fraud (ƒ) if the possession is consistent with the mortgage deed (g). But if the security be absolute in form, with an agreement that the debtor shall remain in possession for a limited time, or that it shall be void on payment at a future day, it will be bad unless the grantee take possession as if there were no such provision (h). (y) Re Matthews, 1 Atk. 185. (z) Kidd v. Rawlinson, 2 B. & P. 59; (a) Bowes v. Foster, 2 H. & N. 779. (c) Holderness v. Rankin, sup. (d) Reed v. Blades, 5 Taunt. 212; Paget v. Perchard, 1 Esp. 205; Martin v. Perchard, 2 W. Bl. 702; Wordall v. Smith, 1 Camp. 333. (e) Latimer v. Batson, 4 B. & Cr. 652; Leonard v. Baker, 1 M. & S. 251; Watkins v. Birch, sup.; Jezeph v. Ingram, 8 Taunt. 838; Kidd v. Rawlinson, sup.; Cole v. Davies, 1 Lord Raymond, 724; Macdona v. Swiney, 8 Ir. C. L. 73. (f) Sup. p. 478, and cases there cited. (g) Ib. and Riches v. Evans, 9 C. & P. 640. (h) Edwards v. Harben, 2 T. R. 587; Cramphorne v., 6 L. J. Ch. 91; affirming 3 ib. 223. (4.) What insolvency is within the statute. If the debtor is at the time, or by such conveyance becomes, in insolvent circumstances, it falls within the Act (i); but the mere owing some debts is not sufficient (k). It is not, however, necessary to prove a state of actual insolvency (1). If, after deducting the property which is the subject of the voluntary settlement, sufficient available assets are not left for the payment of the settlor's debts, then the law infers an intent to defeat creditors (m); but, although a settlor is in embarrassed circumstances, yet, if the property not included in the settlement is ample to pay his debts, the settlement will be good, even if some of the debts remain unpaid (»). The question is, whether the settlor was in a position that would justify him in putting a considerable part of his property into a voluntary settlement (o). solvent. If there is an actual intent to defeat creditors, it is immaterial Act may apply though whether the settlor was or was not solvent at the date of the settle- settlor ment (p); or whether he was or was not indebted at the time; as if, being a trader, he settled all his present and future property (q) ; and that, notwithstanding the settlement was of a very trifling amount considering the extent of his business (»). It was said by Lord Westbury (p) that if the debt of the creditor by whom the voluntary settlement is impeached existed at the date of the settlement, and it is shown that the remedy of the creditor is defeated or delayed by the existence of the settlement, it is immaterial whether the debtor was or was not solvent after making the settlement; but this dictum has been disapproved of, and clearly goes too far (t). (i) Shears v. Rogers, 3 B. & Ad. 362; Kidney v. Coussmaker, 12 Ves. 148; Lush v. Wilkinson, 5 ib. 387; Norcutt v. Dodd, Cr. & Ph. 100. (k) Skarf v. Soulby, 1 Mac. & G. 364. (1) Townsend v. Westacott, 2 Beav. 340; 4 Beav. 58. (m) Freeman v. Pope, 5 Ch. 538, 545; affirming 9 Eq. 210, V. C. James; Taylor v. Coenen, 1 Ch. D. 641, V. C. Malins; Spirett v. Willows, 3 De G. Jo. & Sm. 293; 34 L. J. Ch. 365; Jackson v. C.-VOL. I. Bowley, 1 Car. & M. 97, Erskine, J.; (n) Kent v. Riley, 14 Eq. 190, M. R. (p) Spirett v. Willows, sup. (2) Ib.; Ware v. Gardner, 7 Eq. 317, PP Voluntary assignment. (5.) The intent to defraud. The intent to defraud may be inferred from various circumstances, but a voluntary conveyance is not within the statute unless the grantor is in insolvent circumstances (~). In Shears v. Rogers, Taunton, J., said, "It is established by a long train of decisions, that a voluntary assignment made without valuable consideration, so as to defeat the rights of creditors, is fraudulent within the meaning of the statute" (y). But a voluntary assignment, by a person in embarrassed circumstances, which would amount to an act of bankruptcy, is not void under the statute as against a subsequent creditor, and will hold good against an execution by him (z). On this statute Lord Ellenborough has remarked (a), that it is not every feoffment, judgment, &c., which will have the effect of delaying or hindering creditors of their debts, &c., that is, therefore, fraudulent within the statute; for such is the effect pro tanto of every assignment that can be made by one who has creditors. Every assignment of a man's property, however honest and good the consideration, must diminish the fund out of which satisfaction is to be made to his creditors. But the feoffment, judgment, &c., must be devised of malice, fraud, and the like, to bring it within the statute (); and if the consideration is bonâ fide, the intent to defeat other creditors is not a fraud, independently of the bankrupt and insolvent Acts; as where a debtor mortgaged all his property to secure some creditors to the exclusion of the rest, the deed was held not to fall within the statute (c), though it contained a proviso that the debtor should remain in possession for six months (d). Similarly a sale of goods, if bonâ fide, is not invalidated by knowledge that an execution is intended (e). So an assignment by an insolvent debtor of all his property for his creditors, in order to defeat a particular creditor's execution, is (u) Holcroft's Case, Dy. 294 b; Stephen v. Olave, 2 Bro. C. C. 90; Bull. N. P. 257; Battersbee v. Farrington, 1 Sw. 106; Russell v. Hammond, 1 Atk. 15; Middlecombe v. Marlow, 2 ib. 220; Lord Townsend v. Windham, 2 Ves. S. 1. (y) 3 B. & Ad. 370. (z) Oswald v. Thompson, 2 Ex. 215. (b) See Gale v. Williamson, 8 M. & W. 405. (c) Alton v. Harrison, 4 Ch. 622; Gladstone v. Padwick, 6 L. R. Exc. 211; Allen v. Bonnett, 5 ib. 581. (d) Alton v. Harrison, sup. (e) Hale v. Saloon Omnibus Co. 4 Drew. 492; 28 L. J. Ch. 777; Westbury v. Clapp, 12 W. R. 511, V. C. Wood; Wood v. Dixie, 7 Q. B. 892. defeat a not within the statute (f); but persons claiming under a writ of When to sequestration issued by the Court have priority over a mortgagee particular who takes his security with a knowledge that it was made to avoid creditor. the effect of the sequestration (g). not sufficient A deed, though made for valuable consideration, may yet be void Consideration under the statute if an actual and express intent to defeat creditors if intent to is proved (h). Actual intention to defeat or delay creditors need not be proved if the circumstances are such that the settlement would necessarily have that effect (); but the mere fact, that it has in the result prevented an antecedent creditor from being paid, is not of itself sufficient to invalidate the settlement (k). A bill of sale of all the grantor's then existing and after-acquired property, by way of mortgage to secure an existing debt and future advances, is not necessarily void under the statute. It will only be void if it is not made bonâ fide—i. e., if it is a mere cloak for retaining a benefit to the grantor (1). defraud exist. A dissolution of an insolvent firm and an assignment of the joint Assignment by co-partner. assets by the outgoing to the continuing partner is void within the statute against the joint creditors (m). A purchase from the office of a policy at an undervalue by a stranger with a view to benefit the assured is fraudulent (n): but a lease by the execution creditor of chattels to his debtor at a rent is not (o); and an assignment of a policy of assurance by a man in extremis, for a past debt, is also void against creditors (p). A voluntary assignment of a man about to be tried for felony, of Deeds by all his effects in trust for his wife, was within the statute, and void conviction. against the Crown (q), and semble since forfeiture for felony is (f) Pickstock v. Lyster, 3 M. & S. 371; Wolverhampton, &c. Co. v. Marston, 7 H. & N. 148; 7 Jur. N. S. 1040; Darvill v. Terry, 6 H. & N. 807; 30 L. J. Ex. 254; Marlow v. Orgill, 8 Jur. N. S. 829, L. C. (g) Ward v. Booth, 14 Eq. 195, M. R. See Empringham v. Short, 3 Ha. 461. (h) Per Lord Mansfield in Cadogan v. Kennett, Cowp. 432; Strong v. S. 18 Beav. 408; Holmes v. Penney, 3 K. & J. 99; Bott v. Smith, 21 Beav. 511, affirmed p. 517; Cornish v. Clark, 14 Eq. 184, M. R.; Corlett v. Radcliffe, 14 Mo. P. C. 121; Three Towns Banking Co. W. N. 1883-104, North, J. (i) Freeman v. Pope, 5 Ch. 538, 545, affirming 9 Eq. 210, V. C. James; Re Ridler, 22 Ch. D. 74, C. A. (k) Freeman v. Pope, sup.; qualifying Spirett v. Willows, 3 De G. J. & Sm. 293; 34 L. J. Ch. 365. (1) Exp. Games, 12 Ch. D. 314, C. A. (m) Exp. Mayou, 4 De G. J. & S. 664; 11 Jur. N. S. 433. (n) Baskett v. Cafe, 4 De G. & S. 388. (0) Watkins v. Birch, 4 Taunt. 822; Lingham v. Biggs, 1 B. & P. 82. (p) Stokoe v. Cowan, 29 Beav. 637; 7 Jur. N. S. 901. (1) Shaw v. Bean, 1 Stark. 319; Jones v. Ashurt, Skinn. 357; Morewood v. felon before |