Void executions.

Debt of ancestor.

Settlor may

abandon intent.

abolished (), is void against the administrator appointed by the Crown; but an assignment before conviction by a person guilty of felony, if made bond fide and for good consideration, was and is good (s).

Executions may be void within the statute; thus, if a man seize the goods of his debtor and suffer them to remain long in his hands, this is evidence of fraud (t); and as to the duty of the sheriff in case of a fraudulent execution, see (~).

The statute applies where the debt was contracted, not by the party making the conveyance, but by the ancestor from whom he derived the estate (r); and a fraudulent conveyance may be made by an executor as well as by an heir (y).

The intent with which a deed was executed, whether or no to defeat creditors, is a question of fact for the jury (≈).

Where a settlement is made with the intention of defrauding creditors, the settlor, upon abandoning the intention, may recover the property from the trustee (a).

The liability in a settlement of leaseholds is not a sufficient consideration to avoid the statute (b).

(6.) Subsequent creditors.

It has been held at law that an assignment of goods cannot be void against a person who only became a creditor after its date (c). But in equity an assignment is void, if made with a view to defeat future debts (d); and when a voluntary settlement is once avoided

Wilkes, 6 C. & P. 145; Pauncefort's Case,
Lane, 44, 5. See Rex v. Bridger, 1 M.
& W. 145; Saunders v. Wharton, 32 L.
J. Ch. 224, V. C. Stuart; Manning v.
Gill, 13 Eq. 485, V. C. Bacon.

(r) See sup. p. 45.

(s) Chowne v. Baylis, 31 Beav. 351; 8 Jur. N. S. 1028; 31 L. J. Ch. 757.

(t) West v. Skip, 1 Ves. S. 245; and see Lovick v. Crowder, 8 B. & Cr. 132; Imray v. Magnay, 11 M. & W. 267, doubted in Remmett v. Lawrence, 14 Jur. 1067, Q. B.; 15 Q. B. 1010; Hunt v. Hooper, 12 M. & W. 664; 8 Jur. 203.

(u) Christopherson v. Burton, 3 Exc. 160; Shattocks v. Garden, 6 ib. 727; Remmett v. Lawrence, sup.

(x) Apharry v. Bodingham, Cro. El. 350; Gooch's Case, 5 Rep. 60. See Richardson v. Horton, 7 Beav. 112.

(y) Doe v. Fallows, 2 C. & J. 481; 2 Tyrw. 460.

(z) Henderson v. Lloyd, 3 F. & F. 7 ; Carr v. Burdiss, 5 Tyrw. 316; Reed v. Blades, 5 Taunt. 212; Lindon v. Sharp, 6 Man. & G. 898; 7 Scott, N. R. 730; Pennell v Dawson, 18 C. B. 355; Biddulph v. Goold, 11 W. R. 882, Q. B.; Hale v. Metropolitan Saloon Omnibus Co. 28 L. J. Ch. 777; 4 Drew. 492.

(a) Symes v. Hughes, 9 Eq. 475, M. R.; Taylor v. Bowers, 1 Q. B. D. 291.

(b) Re Ridler, 22 Ch. D. 74, C. A.; and see Re Marsh, 24 Ch. D. 18, Fry, J.

(c) Oswald v. Thompson, 2 Exc. 215. But see Graham v. Furber, 14 C. B. 410, per Williams, J.

(d) Stileman v. Ashdown, 2 Atk. 481 ; Tarback v. Marbury, 2 Vern. 510; St. Amand v. Lady Jersey, 1 Com. 255;

creditors.

under this statute, subsequent creditors may be let in together with antecedent creditors (e); and a subsequent creditor may him- Subsequent self bring an action to avoid the settlement, if any antecedent debt remains due (ƒ). A settlement may be executed under such circumstances as to be void against subsequent creditors, although all the antecedent creditors are paid off (g); as where it is executed to defeat a plaintiff in an action (); or where the settlor immediately afterwards realises all the rest of his property and denudes himself of everything (i); or where he executes the settlement on the eve of entering into an hazardous trade (k), in which case the onus would fall on him to show that he was in a position to make it (k).

A creditor under a voluntary post obit bond is as much entitled to the benefit of this statute as any other creditor (1).

(7.) Ante-nuptial and post-nuptial settlements.

If there is an intent to defeat creditors, the deed will not be sup- Fraudulent appointported as being an appointment under an ante-nuptial settlement (m). ments. So a joint power of appointment in a father and son under a settlement of property vested in a son subject to the power, must not be exercised so as to defeat the son's creditors (n).

settlements.

An ante-nuptial settlement by a man in insolvent circumstances Ante-nuptial will not be set aside against the wife, if she was not implicated in any design to defeat the creditors (o); but it was set aside when the settlor, to the knowledge of the wife, had previous to its execution committed acts of bankruptcy (p). An ante-nuptial settlement by

Hungerford v. Earle, 2 Vern. 261; Ware v. Gardner, 7 Eq. 317; 38 L. J. Ch. 348, V. C. James.

(e) Barton v. Vanheythusen, 11 Ha. 126, 133; Strong v. S. 18 Beav. 408.

(f) Jenkyn v. Vaughan, 3 Drew. 419; 2 Jur. N. S. 109; Freeman v. Pope, 9 Eq. 210, V. C. James; affirmed, 5 Ch. 545; Crossley v. Elworthy, 12 Eq. 167, V. C. Malins.

(g) Richardson v. Smallwood, Jac. 552; Holmes v. Penney, 3 K. & J. 90, 99; 3 Jur. N. S. 80.

(h) Barling v. Bishopp, 29 Beav. 417; 6 Jur. N. S. 812; Kidney v. Coussmaker, 12 Ves. 148.

(i) Spirett v. Willows, 3 De G. J. & Sm. 293, 302; 34 L. J. Ch. 365; Freeman v. Pope, sup.

(k) Mackay v. Douglas, 14 Eq. 106, V. C. Malins; Exp. Russell, 19 Ch. D. 588, C. A.

(1) Adames v. Hallett, 6 ib. 468, V. C. Giffard; Dening v. Ware, 22 Beav. 184. (m) Acraman v. Corbett, 1 Jo. & H.

410.

(n) Beyfus v. Bullock, 7 Eq. 391, V. C. Malins.

(0) Exp. McBurnie, 1 De G. M. & G. 441; 16 Jur. 807; Campion v. Cotton, 17 Ves. 263; Hardey v. Green, 12 Beav. 182; Exp. Mayor, 1 Mont. 292; Colombine v. Penhall, 1 Sm. & G. 228; Bulmer v. Hunter, 8 Eq. 46, V. C. Malins; Acraman v. Corbett, sup.

(p) Fraser v. Thompson, 4 De G. & Jo. 659, reversing 1 Giff. 49; 5 Jur. N. S. 669.

Collaterals.

Post-nuptial settlement.

Separation deed.

a lady of all her property, so far as relates to limitations in favour of collaterals, is voluntary and within the statute (9); and a general covenant by a trader in an ante-nuptial settlement to settle all his after-acquired property upon the wife and children, is, independently of the Bankruptcy Acts (r), void as against creditors, although the marriage be bonâ fide and the settlor solvent at the date of settlement (s); and generally no ante-nuptial settlement is valid, which contains provisions intended to evade the bankrupt laws (†).

A post-nuptial settlement of a man's life estate on his wife and children in consideration of the payment by her brother of his debts, is valid (u), though the husband concealed a debt from the brother (u). So an honestly intended family arrangement is valid, although some creditors are defeated (~).

A post-nuptial settlement, in pursuance of a verbal contract before marriage is voluntary, and if settlor was insolvent at the time, is void (y).

A mere meritorious consideration, such as a debt for advances by a parent barred by the Statute of Limitations, is not sufficient to support a post-nuptial settlement against creditors (≈).

So where a man, not being a trader or indebted, makes a postnuptial settlement of stock on trust for himself till bankruptcy, and then to his wife for life, with remainder to his children, it was held void under the statute (a).

A post-nuptial settlement by a debtor, in embarrassed circum- . stances but not insolvent, on his family, in consideration of a loan to pay off other debts, was held not to be void (b).

A deed of separation, whereby a husband grants an annuity to trustees for his wife's benefit, is void under the statute (c).

(a) Smith v. Cherrill, 4 Eq. 390, V. C. Malins.

(r) See inf. p. 605.

(8) Re Clint, 17 Eq. 115, V. C. Bacon.
(t) Higinbotham v. Holme, 19 Ves. 88;
Lester v. Garland, 5 Sim. 205.

(u) Holmes v. Penney, 3 K. & J. 90.
(x) Re Johnson, 20 Ch. D. 389, Fry, J.
(y) Warden v. Jones, 23 Beav. 487;
3 Jur. N. S. 456; affirmed 2 De G. &
Jo. 76; 4 Jur. N. S. 269; overruling
Barkworth v. Young, 4 Drew. 1; 3 Jur.

N. S. 34; and see Trowell v. Shenton, 8 Ch. D. 324, C. A.

(z) Penhall v. Elwin, 1 Sm. & G. 258. (a) Re Pearson, 3 Ch. D. 807, V. C. Bacon.

(b) Thompson v. Webster, 4 Drew. 628; 5 Jur. N. S. 668; affirmed 4 De G. & J. 628; 5 Jur. N. S. 921; and 7 ib. 531, H. L.

(c) Clough v. Lambert, 10 Sim. 174. See Frampton v. F. 4 Beav. 287, 295; Cowx v. Foster, 1 Jo. & H. 30.

(8.) Trust deed for creditors.

A trust deed by a man in insolvent circumstances, for all his creditors equally, is not void within this statute (d); and a trust deed for creditors who come in and execute the deed, will be valid and binding as soon as each creditor assents (e), or without his assent if the assignment be to a creditor and communicated to him (ƒ); unless the deed impose terms on the creditors to which they ought not to submit (g); as if it authorize the creditors to carry on the debtor's trade and contains such terms that the creditors subscribing would become partners in the business (g); but not if the power to carry on the trade is restricted to the purpose of winding up (h); and a trust deed for all creditors who executed was held void under the statute, where the creditors were deprived by its provisions of their ordinary remedies, and were to indemnify the trustees (i).

(9.) Consideration may be proved aliunde.

A voluntary settlement may be supported by the proof of a consideration aliunde, such as a loan by a mother to a son on condition that he made a settlement on his children (k); or a bond by the settlor to his father binding himself to maintain his father's wife and children (7). But the proof of such consideration must be clear (m); and in such cases costs will not be allowed, as it would tend to induce persons to manufacture considerations to support fraudulent settlements (k).

The marriage of a volunteer does not make the husband a purchaser for value, so as to set up the voluntary deed (n).

(d) Janes v. Whitbread, 15 Jur. 612, C. P.; 11 C. B. 406; Evans v. Jones, 11 Jur. N. S. 784; 3 H. & C. 423; Hickman v. Cox, 18 C. B. 817; 3 ib. N. S. 528; 8 H. L. 268; 9 C. B. N. S. 4. See Lee v. Green, 6 De G. M. & G. 155; 25 L. J. Ch. 269; Wolverhampton, fc. Co. v. Marston, 7 H. & N. 148; 30 L. J. Exc. 402.

(e) Harland v. Binks, 15 Q. B. 713.
(f) Siggers v. Evans, 5 E. & B. 367.
(g) Ib.; Owen v. Body, 5 A. & E. 28.

(h) Janes v. Whitbread, sup.; and Hickman v. Cox, sup.; Coates v. Williams, 7 Exc. 205.

(i) Spencer v. Slater, 4 Q. B. D. 13. See Evans v. Jones, sup.

(k) Thompson v. Webster, sup. (1) Gale v. Williamson, 8 M. & W. 405; Wakefield v. Gibbon, 1 Giff. 401. (m) Graham v. O'Keefe, 16 Ir. Ch. 1.

(n) Collins v. Burton, 5 Jur. N. S. 952, V. C. Stuart; reversed on other grounds, ib. 1113; 4 De G. & J. 612.

Creditor assenting cannot set aside.

(10.) Purchase in name of wife, &c.

Before money was made liable to execution under 1 & 2 Vict. c. 110, a purchase in the name of a wife or child, or other volunteer, was probably not void under the statute, for as the settlor might have given the money to the volunteer who might have made the purchase himself, the purchase with the money was the same thing in effect (o); but since 1 & 2 Vict. c. 110, a purchase followed by a conveyance by the purchaser's direction to trustees for his wife and children, has been held to be within it (p) and now a purchase with cash or bank notes is within the statute, if the other circumstances of the case warrant it (q).

An annuity, or bond to secure an annuity, for the wife of the settlor, has been held void under the statute (r).

Where a creditor was cognisant of the preparation of the voluntary deed, and as executor of the settlor acted on it for several years, the executors of the creditor were not permitted to dispute it after his death (s).

An execution creditor can set aside a settlement fraudulent under 13 Eliz. c. 5; but where the execution creditor is a debtor to the execution debtor, and holds property of the latter of greater value than his debt, he has no locus standi to set aside a voluntary settlement of the debtor (†).

(11.) Actions to set aside settlements under the statute.

An action by a creditor to set aside a settlement under this statute is not affected by the insolvency of the settlor subsequent to the commencement of the action (u). If the settlor has become bankrupt, the trustees in bankruptcy are the proper persons to bring

(0) Sug. V. & P. 917, ed. 11; 706, ed. 14; Fletcher v. Sidley, 2 Vern. 490; Proctor v. Warren, Sel. C. C. 78; Glaister v. Hewer, 8 Ves. 199. See Drew v. Martin, 2 H. & M. 130; 10 Jur. N. S. 356.

(p) Barton v. Vanheythusen, 11 Ha. 126, 133; 18 Jur. 344.

(g) French v. F. 6 De G. M. & G. 95; Neale v. Day, 4 Jur. N. S. 1226; 28 L. J. Ch. 45, V. C. Wood; Barrack v. McCulloch, 3 K. & J. 110; 3 Jur. N. S. 180; Sims v. Thomas, 12 A. & E., per

Lord Denman; Christy v. Courtenay, 13 Beav. 96; Cornish v. Clark, 14 Eq. 184, M. R.

(r) French v. F. sup.; Hue v. French, 26 L. J. Ch. 317, V. C. Kindersley.

(s) Olliver v. King, 8 De G. M. & G. 110; 4 W. R. 382; reversing 1 Jur. N. S. 1066, V. C. Wood.

(t) White v. Witt, W. N. 1876—152, V. C. Malins.

(u) Goldsmith v. Russell, 5 De G. M. & G. 547; 1 Jur. N. S. 985.