place for obtaining earth for the repair of the canal. The statute must receive such a construction as looks to the accomplishment of the great objects the Legislature had in view, and not such an one as would make it powerless to attain to that end. The object was the structure, and maintenance for use, of navigable canals. Power was given or intended to be given to effect that end. Is the grant of power so narrow, that no authority is given to change an improvident location, or to repair the failures and breaches of daily or hourly occurrence in the prosecution of such a work? If the authority to take the materials for the prosecution of the improvements intended by the act, does not embrace cases of casual sinking of the banks and repairing breaches, we are at a loss to discover its practical benefit. Such a construction would be altogether too narrow for the liberal policy of the act, and would warrant the setting up a petty private interest in opposition to the great interests of the whole people of the State.

Several cases have been pressed upon our consideration, where private corporations, for constructing canals, have been restricted to a rigid exercise of the literal power granted in their act of incorporation to appropriate to their public structure private property. (2 Dow's Parl. cases, 519, Co. R. 78, 5 Petersdorff, Ab. 3 to 14, 1 Maule & Sel. 32, 20 John. R. 104, 7 J. Ch. 315.) Whatever construction we might feel constrained to put upon an authority given to individuals to appropriate the property of others to their private advantage, we cannot believe the cases have any very material bearing on agents and officers exclusively public, engaged in the construction of a great public improvement, for the sole benefit of the State. It would, however, be a sufficient answer to this objection, to say that the plea justifies the entering the premises, and to bring the earth "to complete the canal and for no other purpose." After verdict an objection to the form of the plea, either for the purpose of obtaining a new trial or a repleader, will not be received, particularly if it appear, as in this case, not to be in furtherance of justice, but an effort to place technical impediments in the way of its advance.

Both motions over-ruled.

JOHN J. BRICE vs. CHRISTOPHER MYERS, AND OTHERS.

Claims of creditors against voluntary conveyances of their debtors are to be favored.-Father who is in debt, or liable upon a contract for damages, conveys property to his children, without intent to defraud the creditor at the time.-Conveyance held fraudulent if necessary to secure a creditor.

THIS was a suit in Chancery, adjourned here for decision, from the county of Knox.

The complainant was a creditor of Christopher Myers, and the object of the bill was to set aside certain conveyances made by him to his sons, as fraudulent, and to subject the property conveyed, to the payment of the complainant's debt. The case made in the papers was this:

In the year 1819, Christopher Myers contracted with the complainant for an exchange of lands, valued at twelve thousand dollars. Of this sum, nine thousand dollars was paid by the conveyance of a tract of land. The payment of fifteen hundred dollars was secured by a mortgage upon part of the land, obtained from complainant, and a covenant was executed by which C. Myers bound himself to convey to complainant, within five years, a house and lot in Zanesville, or pay him fifteen hundred dollars. This house was then the property of a son-in-law of C. Myers.

In 1820, C. Myers conveyed to his sons and sons-in-law, who are all defendants, five tracts of land, one to each, for the consideration expressed of one thousand dollars each, but in truth, for the consideration of natural love and affection, and an annuity from each, during life, of twenty dollars. At the time these conveyances were made, they included all the property then owned by C. Myers.

At the time of making the original contract with complainant, the sons and sonsin-law of C. Myers were present; and it was declared by him, in the presence of them and of complainant, that his object was to provide for his sons and sons-inlaw, and settle them around him.

Subsequent to the conveyances by C. Myers to his children, he failed to obtain for complainant, a conveyance of the house and lot in Zanesville. Suit was brought and judgment recovered for fifteen hundred dollars, which is the debt that the bill seeks to have paid.

At the time of making the original contract, C. Myers was not involved in debt. In the different answers of the defendants, it is alledged that complainant agreed, that upon receiving a conveyance of the house and lot, he would release an equal value of the mortgaged lands. That he refused to do this, but prosecuted the mortgage, and sacrificed the lands; and for this reason, the conveyance was not made. A conversation importing an understanding, such as is claimed in the answers, was proved to have taken place, whilst counsel was preparing the deeds and mortgages.

EWING and H. STANBERY for complainants, contended, that it was a plain case of a voluntary conveyance, made by a person indebted at the time; and therefore void against creditors. They cited, 3 John. C. 481, 8 Wheat. 238, 11 Wheat. 205, 1 Atk. 16, 2 Atk. 600.

SILLIMAN for defendants, maintained that at the time of making the conveyances to the sons and sons-in-law, C. Myers was not so indebted as to affect the validity of these conveyances, otherwise made in good faith, and for a valuable consideration. He cited Com. Rep. 255, 2 Ves. 1, 1 Atk. 15, 2 Coup. 711, 1 Cox, 273, 2 Ves. 326, 1 Pet. C. C. Rep. 460, 464, 1 Day. 525, 2 Des. 332, 1 Bay. 163, 1 O. R. 321, 3 O. R. 527, 2 Brown, 90, 15 Mass. 92, 1 Ves. 128, 1 John. C. 429, 17 Mass. 328, 1 Cox, 405, 1 John. C. 485, 1 Swift, 274.

Opinion of the Court by JUDGE Collet.

The question first to be determined is, are the deeds of Christopher Myers to his sons and sons-in-law fraudulent as to the demand of Brice?

Α person is trusted or obtains credit in proportion to the property he appears to own. The creditor, when he trusts him, looks to his possessions as evidence of his ability to pay, and as a fund from which, if other resources of the debtor fail, he is to receive his demand. After the credit is obtained, for the debtor to divest himself of his property by giving it away, thereby rendering himself unable to pay his debt, or to perform his contract, is unjust; it is a fraud upon his creditor. Whether by making the gift, the debtor intended to prevent the payment of the debt, or not, can make no difference as to the rights of the creditor: his injury is the same. It is the duty of the debtor to retain at least a sufficiency of his property to pay all his debts, and perform all his contracts: if he does not, justice requires that the property should be followed into the hands of the donee, by the creditor. He who combines with a debtor to defraud his creditor, by buying his property, even at a full price, and receiving a conveyance of it, does a wrong to the creditor, for which he should answer, by having the property subjected to the creditor's demand. He who gives or sells property, and remains in the possession and enjoyment of it, as before the conveyance, has the credit of being owner of such property, and should be subject to his debts contracted while he so appears to be owner. A man who falsely represents another as being the owner of a thousand dollars' worth of land, knowing it to be false, and thereby induces a stranger to credit the person so represented, should, if necessary to prevent the creditor's losing, pay him one thousand dollars.

To enforce these principles; to prevent creditors from suffering by their violation, was the object of the statute of the 13 Eliz. c. 5, and is the object of that part of the second section of our statute for the prevention of frauds and perjuries, which relates to creditors. As to the relief of creditors, these statutes are co-extensive; each makes void conveyances made with "intent" to defraud creditors: they are declarative only, of the common law, which, as now understood, would, without the statutes, have effected all that can be effected with them. The statute of Eliz. as to the relief of creditors, has, from its enactment, in courts both of law and equity, uniformly received a most liberal construction, notwithstanding it subjects the committers of the forbidden fraud to a prosecution for a penalty. (Cowp. Rep. 343, Roberts on Frauds, 14, 1st Fonb. Eqt. 260, 67, 1 Cranch R. 316.) Our Legislature, when they, in 1824, by the 10th section of the act "for the punishment of certain offences therein named," subjected the maker of a conveyance to defeat creditors, to a criminal prosecution, did not intend to prevent the courts from giving as extensive relief to creditors, under the statutes of frauds and perjuries, as they had before given or could have given, had not the act of 1824 been passed. When relief is given against frauds even of the grosser kind, the perpetrators are frequently in no worse, and sometimes in a better condition than they would have been had not the fraud been committed. That the perpetrators of such frauds should be really punished, and thereby such frauds be prevented or made less frequent, was probably the only object of the Legislature. Before the statute of Eliz. the courts in England held that a voluntary conveyance to

a stranger, made by a person indebted at the time, was void as to creditors; after, they held that a conveyance to a child by a parent, if the parent was at the time indebted, was void, not only as to debts contracted before, but also as to those contracted after. (1st Fonb. Eqt. 260, note a.)

In the case of Russel vs. Hammond, (2 Atk. 13,) Lord Hardwicke says, that he "had hardly known of one case, where the grantor had been indebted at the time of the conveyance, that the conveyance had not been deemed fraudulent."

In the case of Reede vs. Livingston, (3 J. C. R. 500,) Chancellor Kent, after a laborious examination of the English cases, says, that "the conclusion to be drawn from them is, that if the party be indebted at the time of the voluntary settlement, it is to be presumed fraudulent in respect to such debts; and no circumstances will permit those debts to be affected by the settlement, or repel the legal presumption of the fraud." It is even doubtful whether, by the English decisions under the 13th Eliz. a voluntary conveyance to a child, of land worth one thousand dollars, when the parent at the time owned land of the value of four thousand dollars, if the father at the time owed only fifty dollars, would not be deemed fraudulent and void, and the land liable for the debts contracted by the parent, after he made the gift to his child.

The law abhors fraud: a statute relieving against it must be liberally construed. When we adopt in substance an English statute, the construction before given by their courts to their statute, is in general to be considered as adopted; but when the statute is declarative of the common law, and when the construction would here be injurious, arising from a settled difference in the mode of doing business, and from the situation of property, it becomes the duty of the court not to follow them in their construction. To hold here, that the parent being indebted at the time he makes a voluntary conveyance to his child, is conclusive evidence of fraud, such as cannot be rebutted or resisted, no matter how small the debts or how small the property conveyed to the child, or how ample the property still retained to pay his debts, and for his own and his family's support, is going too far; farther than the Supreme Court of the United States went in the case of the lessee of Hinde vs. Longworth. (11 Wheaton Rep. 199.)

The security of the creditor of ordinary diligence does not require it, and it would be injurious to the debtor and his family, and to society. A parent is under obligations to his children as well as to his creditors: those to the creditor are paramount, and to be preferred; but when his circumstances are such as to enable him to discharge both, it is his duty to do so: hardly any man, especially the diligent and prosperous, can say at any time, "I owe not a dollar." Shall he be prevented from making the most reasonable provision for a child, unless by way of marriage settlement, until he can say so?

In England, parents, before the marriage of their children, but with respect to it, convey their lands to them by way of marriage settlements. The contemplated marriage takes place: their courts decide that the marriage is a valuable consideration, and that the creditors of the parent, neither prior nor subsequent, can follow the lands into the hands of the children. Marriage settlement is almost unknown here: the donations to children are generally after, presently after the

marriage-not connected with it: the marriage has made it necessary. To force prudent parents into marriage settlements, to discharge their duty to their children, would be giving no additional security to creditors, but the reverse; it would do society no good, but an injury.

That the conveyance of land to a child was in consideration of love and affection, and that the parent was indebted at the time he made the conveyance, is evidence of fraud as to creditors; but it may be repelled by showing that the debts were small, and that the property retained by the parent was amply sufficient to pay them; that he was in prosperous circumstances, and not embarrassed; and that the gift to the child was a reasonable provision for him, according to his and the parent's circumstances. (11 Wh. R. 199.)

The defendant, Christopher Myers, on the 31st day of March, 1819, made the bond to Brice, the complainant, conditioned to convey to him a lot in Zanesville, or to pay to him fifteen hundred dollars within five years. Myers did not convey the lot nor pay the money, and Brice has recovered a judgment against him on the bond, for one thousand nine hundred and forty-five dollars and costs. Myers has no other property than an annuity for his life of one hundred dollars. After the bond was made on the 17th day of April, 1820, Myers conveyed in fee simple to his sons, the defendants, Isaac, Jacob, William, and Solomon Myers, and to his son-in-law, the defendant, Hahn, in several parcels as described in the bill, twelve hundred acres of land; the consideration expressed in each deed is one thousand dollars. At the time the deeds were made, each grantee made a bond to C. Myers, to pay to him and his wife during their lives, and to the survivor during his or her life, an annuity of twenty dollars: this was the only valuable consideration for the deeds. C. Myers at the time owned no other lands, and but little other property, except an equity of redemption in a tract of land, which in 1822 he released to satisfy the mortgage. C. Myers states in his answer, that in the spring of 1819, when he acquired the twelve hundred acres of land, he estimated the lands he gave in exchange for them at nine thousand dollars. Hahn in his answer states, that at the time the deed was made to him for his one hundred and twenty-nine acres, it was not worth more than the annuity he agreed to pay; but there is no evidence in support of the answer. When a child claims to hold land as a purchaser for valuable consideration against a creditor, a suspicion of fraud arises, and more proof of its payment, and of its adequacy, is required, than where the purchaser is a stranger. Alexander Harper's deposition proves, that C. Myers, when he obtained of Brice the twelve hundred acres for a farm, said that his object was to obtain a larger quantity of land to divide amongst his children, to give each a farm. C. Myers in his answer states, that this was his object. It is manifest that the advancement of the children, and not the annuity, was the object of the conveyances. Love and affection are the only consideration that the defendants can set up. The defendants' counsel do not insist on any other. To rebut the presumption of fraud which arises from these facts, the defendants contend that the fifteen hundred dollars contained in the bond on which the judgment at law has been obtained against C. Myers by Brice, was secured by mortgage, when the deeds were made by C. Myers to his sons, and son-in-law.