very little Reason in the Distinction, that the making one Settlement with such a Recital, and abandoning it for a subsequent Settlement, shall carry the Matter any farther.

There is a Rule of the Civil Law, that Qui non protest donare non protest confiteri, which is evidently founded upon just Principles, and is immediately applicable to the Point in Question.

It seems not to be absolutely settled how far the Limitations in a Marriage Settle. ments as affecting Marriage Settlement in Favour of collateral Objects not within the Marriage collateral Objects. Consideration, are valid as against subsequent Purchasers claiming under the Statute 27 Eliz. the Settlement not being supported by any other distinct and independent Consideration. For Instance, whether upon a Marriage by J. S. a Settlement of his Estates in Favour of his Brother, in Failure of Issue by the Marriage, is without other Circumstances valid, as against a Purchaser from J. S.

In the Case of St. Saviour's in Southwark, (4 Jas. I.) Lane 22, it is reported as a Resolution, that if a Man upon the Marriage of one of his Sons covenants to stand seised to the Use of that Son for Life, and then to the Use of his other Sons in Remainder, such Limitations to the other Sons are void against a Purchaser.

In Jenkins v. Kemishe, Hardres, 395, 1 Lev. 150, Sir N. K. being Tenant for Life, with Remainder to his Son Charles, in Tail, they suffered a Recovery upon the Marriage of Charles; and in Consideration of the Marriage and a Portion, settled the Estate upon the Husband & Wife, with Remainder to the Heirs of the Body of the Husband by the Wife, with Remainder to the Heirs of the Body of the Wife; and it was ruled, that the Limitation to the Heirs of the Body of the Son by a second Wife, was good against a Mortgage by Sir N. and Charles, and by Hale, C. Baron, it is hard to presume Fraud in this Case, for none is found. And the Consideration of Marriage, and the Marriage Portion, will run to all the Estates raised by the Settlement, although the Marriage is not concerned in them so as to make them good against Purchases, and avoid a voluntary Conveyance; and it appears, upon the same Case coming before the Court of Chancery upon another Point, that Lord Keeper Bridgeman held that the Consideration of the Portion paid on the first Marriage extended to the Issue of the second.

In Orgood v. Strode, 2 P. Willms, 245, which was a Suit for carrying into Execution Articles of Agreement against Volunteers, and decided upon Grounds not connected with the present Discussion, some Doubt appears to be thrown upon the general Question. In Bellingham v. Lowther, 1 Ch. Cas. 243, the Court refused to enforce Performance of Covenants in a Marriage Settlement in Favour of collateral Relations, although the Party himself was preparing to execute them in his Life Time, and prevented by Death. But it was said by the Court, that if the Wife, who was a Purchaser under the Articles, had applied, they must have specifically carried them into Execution, and as it seemed, they must have been integrally executed for the Benefit of all collateral Objects, as well as for the Wife, and the Issue of the Marriage.-Rob. 138.

in Vernon v. Vernon, 2 P. Wms. 594, an Agreement was enforced in Favour of Brothers, the Lord Chancellor saying, that no Creditor could be hurt by a specific Performance, Mr. Roberts citing this Case, says, that the Lord Chancellor was clearly of Opinion that such an Agreement ought not to be performed against a Creditor-but nothing of this Kind appears in the Report. See also Edwards v. the Countess of Warwick, 2 P. Wins. 171-Goring v. Nash, 3 Atk. 186-Stephens v. Trueman, 1 Ves. 73, as to the Execution of Articles in Favour of Collaterals against Volunteers; but even if it should be clearly established that a Court of Equity would refuse to decree in Favour of such Articles against Creditors or Purchasers, that will not affect the Case of an actual Settlement with Reference to the Statutes at present under Consideration. In Jthell v. Beane, 1 Ves. 215, a Bond previous to Marriage to pay £400 amongst the Children of the Marriage, and a Son then living by a former Marriage, was sustained in Favour of the Son (there being no Issue of the Marriage) against the Creditors of the Father. But in Roe, on the Demise of Hammerton v. Mitton, 2 Wilson, 356, the Judgment in Favour of the Brother against a Purchaser, appears to have proceeded solely on the Ground of a distinct Consideration, Lord Ch. J. Wilmot said, "The whole of this Question turns on the Mother's joining in the Settlement;" from which it may be

inferred as his Opinion, that without that Circumstance, the collateral Limitations in the Settlement could not be supported against the Purchaser.

In Brunsden v. Stratton, Prec. Ch. 520, the Husband being under Age at the Time of the Marriage, the Wife's Father gave a Bond to pay him £1500, upon his settling a suitable Jointure Settlement on her; (saying nothing of the Issue) some Years afterwards, on Payment of the Portion, the Husband settled a Jointure on the Wife, and limited the Estate to himself for Life, with Remainder to his Children in strict Settlement, which was sustained against his Bond Creditors, the Master of the Rolls being of Opinion that it was not fraudulent or voluntary, being but adequate to the Wife's Fortune, and that the Words of the Bond were capable of such a Construction, for that a Jointure Settlement must be intended a Settlement in the common Form, to the Issue, and a Jointure for the Wife.

[N. B. Nothing appears to have been said in this Case as to the Husband being indebted or otherwise, at the Time of the Settlement.]

In Jason v. Jervis, 1 Vern. 284, the Validity of a Settlement as against a Purchaser, was sent to be tried at Law; first against the Wife as to her Estate for Life; and then as to the Remainders to the Children ;-" for (by the Lord Keeper) if the Bond before Marriage [which is not noticed in the Statement of the Case] was only for a Jointure, and the Settlement goes further, and entails the Land upon the Children of the Marriage, the Settlement_might be good as to the Jointure, and fraudulent as to the Remainders in Respect to a Purchaser." There are, in Fact, many Authorities which it is unnecessary particularly to advert to, that a Settlement may be partly good and partly void.

A Marriage in Scotland, according to the Scotch Law, of Persons going from England for the Purpose, being valid; a Settlement previous to, and in Consideration of a subsequent Marriage in England, is within the Statute. -Ex parte Hall, 1 V. & B. 112.

prima facie void, good

upon new Consi

A Settlement after Marriage is primâ facie void, as against Creditors intitled to the general Protection of the Statutes, and Purchasers, but may be Settlements after supported upon a new Consideration, of which the several Cases about to be Marriage cited are Instances; and it may be premised as a settled Principle, that where there is a Settlement founded upon actual Consideration affecting the Interest deration. of any of the Parties, the Adequacy or Inadequacy of such Consideration, in Point of Value, is immaterial, for the mere nominal Consideration of 5s. or 10s. inserted as Matter of Form in all Assurances, is, in this Respect, not regarded, the real Nature of it being fully recognized and understood. The Cases upon this Subject may be divided as follows:-1. When a Father is Tenant for Life, with Remainder to the Son in Tail, the Father's joining in Father joining in the Settlement by suffering a Recovery, will support the Limitations against Recovery, &c. the Creditors, (or comme semble the Purchasers from the Son) Russell v. Hammond, 1 Atk. 13, (already cited on other Points)-but in Goodright v. Moses, 2 Bl. 1019, where J. R. being Tenant for Life, with Remainder to Elizabeth, the Wife of T. H. in Tail ;-the said Parties levied a Fine to the Use of J. R. for Life, and after with Intent that the Rents might be applied for the Support of T. H. his Wife, and their Children, during the Life of T. H. afterwards for ⚫the Maintenance of Elizabeth and her Children during her Life; and after her Deccase for the Children ;-these Limitations were not sustained against a Lease from Elizabeth after she became a Widow, Lord Ch. J. De Grey delivering the Opinion of the Court generally, that the Deed was only a voluntary Conveyance within the Statute 27 Eliz. being founded only upon a good, and not a valuable Consideration; and that therefore it could not be set up against a bona fide Purchaser. It may be observed, that in this Case the Settlement derived no Assistance from the Concurrence of J. R. as Tenant in Tail, in Remainder, that can bar his Issue by Fine, without the Assent of the Tenant for Life.-2. Where the Settlement is made upon an additional Portion paid or agreed to be paid by the Friends of the Wife, which is a good pecuniary tion. Consideration, as to which see Russell v. Hammond, 1 Atk. 13, already cited upon other Points, Jones v. Marsh, Ca. Temp. Tall. 64. Browne v. Jones, 1 Atk. 188. Stileman v. Ashdown, 2 Atk. 477, and this, as it appears, although the Sum agreed to be paid is not paid in Fact, Lord Hardwicke, in Ramsden v. Hilton, 2 Ves. 309, assigns as a Reason for this, that the Issue take from both Parties, and whether they perform their Agreement among

Additional Bor

of

themselves, may be immaterial to the Issue. Mr. Roberts observes, p. 258, that it is not very easy to comprehend the Force of this Reasoning; but without entering into that Discussion, nothing is more obvious, than that a mere Agreement of one Person may be an adequate Consideration for either a counter Agreement, or an executed Act of another.-3. Where the Wife Relinquishment gives up her Jointure for another Estate of double the Value being settled,

Jointure

Dower.

or

Legacy to the Wife.

the Consideration will support a Limitation to the Children, Scott v. Bell, 2 Lev. 70. Ball v. Burnford, Prec. Ch. 113. As to the Relinquishment of Dower, vi. Lavender v. Blackstone, 2 Lev. 146, in which it was said, that a Wife joining to bar Dower, might be a good Consideration to support a Settlement. Vi. also Dolin v. Coltman, 1 Vern. 294, in which an Agreement that a Wife joining in a Mortgage should have the whole Equity of Redempijon, was not supported against subsequent Mortgagees. The Facts of the Case are not sufficiently stated to support any general Inference; and there is no direct Reference to the Statutes under Consideration. Upon Principle, there does not appear any Reason why a Wife's concurring in the Disposition of an Estate out of which she is entitled to Dower, or letting in an Incumbrance which may affect the Dower, should not be equally regarded with any other valuable Consideration.4 A Settlement upon receiving a Legacy of the Wife, or other Property in her Right, which could only be obtained by the Assistance of a Court of Equity; and in Respect of which the Court would not decree Payment to the Husband without a Settlement, or the express Consent of the Wife. It would be foreign to the present Purpose to enter into a particular Dissertation upon the Doctrine established by Courts of Equity with Respect to this Subject, as to which see Roberts on Fraudulent Conveyances, Ch. 3. Sec. 10, 11, 12.-Newland on Contracts, Ch. 7. Wright v. Morley, 11 Ves. 12. Murray v. Lord Elibank, 13 Ves. 1. and a recent anonymous Treatise on the Rights, &c. of Married Women. The Equity does not extend to Stock in the Funds which a Wife is entitled to previous to Marriage; and of which the Husband may compel the Payment, Pringle v. Hodson, 3 Ves. 617,-5. A Settlements on Settlement upon a voluntary Separation is valid, if there is any specific ConsiSeparation. deration as a Covenant to indemnify the Husband from the Debts of the Wife, Stephens v. Clive, 2 Bro. Ch. 90. See Seeling v. Crawley, 2 Vern. 386. Angier v. Angier, Prec. Ch 496. Fitzer v. Fitzer, 2 Atk. 511. See also Maun v. Wilsmore, 8 T. R. 521, where an Assignment in Consideration of a Sum of Money paid to the Husband-and in Part for the Payment of his Debts, and subject thereto for the separate Use of the Wife who had been ill treated by the Husband, was held to be valid, in Point of Consideration.

Settlements pre

dren of a first.

In the Case of Roe on the Demise of Hamerton v. Mittin, 2 Wils. 356, already cited, the Settlement before Marriage was assumed to be voluntary so far as related to the Brothers, except so far as depended upon the Circumstance of the Mother joining, was decided to be made upon valuable Consideration, in Respect of the Mother abandoning the Security for her Annuity upon the whole Estate, and accepting a Security of Part; and this Decision appears to be founded upon a general Principle, and not particularly to depend upon its having any Reference to Marriage.

There is a Class of Cases respecting Settlements made previous to a vious to a second second Marriage upon Children by a first, which seem rather to depend upon Marriage for Chil- general Principles of Equity as applicable to actual Fraud than to the peculiar Doctrine established by the Statutes at present under Consideration, and which therefore it will not be material more particularly to advert to. See upon this Subject, King v. Cotton, 2 P. Wms. 358-674. Bowes v. Lady Strathmore, 2 Bro. Ch. 345, 1 Ves. Jun. 22. Poulson v. Wellington, 2 P.Wms. 533. Hunt v. Mathews, 1 Vern. 408. Newstead v. Searles, 1 Atk. 265.

Other Consideratious.

In Stiles v. the Attorney-General, 2 Atk. 152, the Duke of Whaston having, upon the Ground that the Public Good was advanced by the Encouragement of Learning and the polite Arts, and being pleased with the Attempts of Dr. Young, granted him an Annuity of £100, and afterwards by Indenture reciting that there was an Arrear of the Annuity, and that Dr. Y. had, at the Duke's Request, quitted a Service in the Family of the Earl of Exeter, which he was in, and thereby lost an Annuity, granted him a farther Annuity of £100, and charged his Estate with the said Annuities,-Lord Hardwicke held (as against Creditors) that the Advancement of Learning, though a good Inducement, was not a valuable Consideration; but that the Quitting the Earl of Exeter's Service was a valuable Consideration ;-and that the For

bearance to sue for the Arrears of the first Annuity, was also a valuable Consideration, in Respect whereof the second Annuity ceased to be a voluntary Grant.

In Jameson v. Shipwith, 2 Bro. Ch. 34, it was taken for granted, that an Engagement by a Pupil to his Teacher, as a Remuneration of Gratitude, was not valid as against Creditors

The Compromise of a doubtful Right may form a fair and valuable Con- Compromise of sideration. In Peat v. Powell, Amb. 387, a Father having devised Lands of doubtful Right. Inheritance, and Lands held upon Lease for Lives, to Giles, his younger Son-John, the elder Son, claimed the Lands of Inheritance, insisting, that the Will was void, and threatened to commence a Suit, unless the younger Son would convey his Right to him, which he did.-Upon a Suit, by the Assignees of Giles, Lord Northington said, "This is not like the Case when Conveyances are made to quiet family Differences, in which the Court will not require strict Equality of Consideration-there was no Equivalent given by John. He did not so much as release his Right to the other Estate. There is no Fraud, bat being a voluntary Conveyance it is void against the Creditors of Giles." Mr. Roberts, in a Note to his Citation of this Case, (page 415,) observes, "that the Settlement of disputed Boundaries, and in general the Object of removing Contention and compromising adverse Claims, constitute a good Consideration to support Suits in Equity for the specific Performance of Agreements," and refers to the Opinion of Lord Hardwicke, in Penn v. Lord Baltimore, 1 Vesey, 453-but adds, "that it seems clear, that such Considerations will not be good against Persons coming in upon valuable Considerations," and in a subsequent passage, (page 432,) he refers to Peat v. Powell, as establishing, that a vain Apprehension of possible Danger, or an alarm existing by groundless Menaces, will not form a valuable Consideration for a Conveyance. But in Hill, Clerk, v. the Bishop of Exeter and others, 2 Taunton, 69, Charles Hill, the Father, made a voluntary Conveyance to his Son of the Living of Fremington, and afterwards, upon the Trial of a Quare impedit, at the Suit of R. C. claiming the vacant Presentation, against May and others, it was agreed, that May should release to Cooke his Title to the Presentation, and to C. H. his Right to the Advowson-C. H consenting thereto, and agreeing to present May or his Assigns at the next Vacancy; and, in Pursuance thereof, Hill and Cooke released to May the next Advowson. To a Plea setting forth such Release, Hill replied, that May had not any Right whatever to the Advowson-which Replication was upon Demurrer adjudged to be bad-and it was held, that May was, under such Release, a Purchaser for valuable Consideration, so as to defeat the voluntary Conveyance to Hill, the Son-and per Curiam. "It is just the same Thing whether May had or had not any actual Title, for he gave up whatever he had, and therefore it is quite immaterial what he had-and there can be no Doubt, in general, that the giving up a Right without Fraud is a valuable Consideration-the Relessor parts with that for which the other Party may very reasonably give Money." This Case, deciding that such a Compromise is a valuable Consideration, which defeats a former voluntary Conveyance, will apply a Fortiori, as will appear in the Sequel to shew that a Conveyance, founded upon such Consideration, cannot be impeached in itself as being merely voluntary.

A Conveyance in Trust, for Payment of the Debts of the Party making it, Trust for Payment is not, without other Circumstances, sufficient to prevent the Operation of the of Debts. Statutes, as to which see Lord Paget's Case, 1 Leon. 194-Leech v. Leech, Ch. Cas. 249-Tarback v, Marbury, 2 Vern. 510; but if a Creditor be a Party to such Conveyance, and enters into any Agreement for Forbearance, or to release his Debt, it is clearly as Mr. Roberts observes, (p. 431,) a valuable Consideration: and in Langton v. Tracey, 1 Ch. Rep. 33, it was ruled, that such a Conveyance, though no Creditor was a Party, was good against a Creditor with Notice.

In Twine's Case, 3 Rep. 83, a Case was cited by Anderson, Ch. J. in which a Man of weak Understanding, and incapable of managing an Estate, and being given to Riot, by the Mediation of his Friends, openly conveyed his Lands to them upon Trust, to take the Profits and apply them to his Maintenance, in Order to prevent his wasting and consuming the same-which was supported against a subsequent Purchaser for a small Value, the Purchaser being apparently open to the Imputation of Fraud and Deceit; but the Chief Justice observed, "that such a Conveyance is void as to him who purchases the Land for a valuable Consideration bona fide without Deceit or Cunning.

ance should be

Not essential that § 6. It is not essential that the Conveyance, which is impeached as the void Convey fraudulent, should be made by the same Person from whom the Purchaser made by the Party derives his Title. This was laid down in Burrel's Case, 6 Rep. 72, where a from whom the Father, upon the Marriage of his son, demised Lands to the Son for 1000 Purchaser derives Years, and the Son, in the Life-time of his Father, made an Assignment to

Tipe.

Coppholds.

his own Son, an Infant, which was under the Circumstances held to be fraudulent, and after the Death of his Father sold the Land, covenanting_that it was free from all Leases-and two Points are reported as resolved; 1st, That if a Father make a Lease by Fraud and Covin of his Land, in Order to defraud others to whom he may demise or sell it, (as all fraudulent Leases shall be intended,) and, before the Father makes any Sale or Demise, he dies, and the Son, knowing or not knowing of the Case, sells the Land upon good Consideration, in this Case the Vendor shall avoid the Lease by Force of the Statute, (27 Eliz.) for as it is intended and presumed in Law, that every fraudulent Lease is made with the Intent generally to defraud Purchasers, Farmers, &c. in this Generality, every particular Purchaser, Farmer, &c. is included-and the act is well penned, for the Words of the Act are general, and do not require that he who sells the Land shall make the fraudulent Estate or Incumbrance, but if the Estate be fraudulent, &c. whoever sells it, the Purchaser shall avoid such fraudulent Estate; and as in the Case at Bar, the two Leases were upon the Evidence thought fraudulent, the Vendee of the Heir might avoid them.-2d. That although the Son had nothing in the Inheritance at the Time of the Assignment of the Term; but all the Estate of Inheritance was in his Father; yet when the Father died, and the Son sold the Land, his Vendee shall avoid the Term, (the Assignment being taken upon the Evidence to be fraudulent) for if he had bargained and sold the Term only, the Bargainee might have avoided the fraudulent Assignment, and consequently the Vendee of the whole Fee may avoid it.

In Clerk v. Rutland, Lane 113, a Father made a Lease to a Stranger for forty Years, and continued in Possession, and afterwards conveyed the Lands to a younger Son, who sold it for a valuable Consideration; and it was doubted whether the Purchaser could avoid the Lease; but it was said, that if in that Case the Father had suffered the Land to descend to his eldest Son, then the Purchaser from the eldest Son should avoid the Lease. In Jones v. Purefoy, 1 Vern. 45, the Grandfather made a Settlement on the Grandson, which was disputed by the Mortgagee of the Father after the Grandfather's Death; but as to this Point, says the Reporter, they gave this clear Answer:-" It was true it was a voluntary Settlement, and if it had been made by the Person that mortgaged these Lands, it should never prevail against a Purchaser; but here the Settlement was made by the Grandfather, and the Estate passed from him; but the Mortgage was made by the Father, who was never seised nor possessed of the Estate."

According to the present Understanding upon the Subject, it is not probable that a mere voluntary Lease made by a Father could be avoided by the Alienee of the Son, to whom the Inheritance had descended, or that the Son could by this Circuity avoid a Disposition of his Father, if made by Deed, which would be effective against Heirs if made by Will. This Observation does not affect the Case where the Deed is affected by actual Fraud according to the popular and common Notion of the Term.

§ 7. Some Doubts have been entertained as to whether Copyholds are within the Statute 27 Eliz. respecting Purchasers, but the prevailing Opinion seems to be that they are.-See Doe, Demise of Watson v. Routledge, Cowp. 705.-Mr. Roberts justly observes, that how far Surrenders of Copyholds are within the Statute 13 Eliz. with Respect to Creditors may perhaps be doubted, since it may be said that they have not the Effect of delaying, hindering, or defrauding Creditors who cannot issue Process to levy a Debt upon a Copyhold Estate-and notwithstanding that, it has been determined not to be an Act of Bankruptcy on a similar ground.-Exparte Cockshot, pa. 447, n.