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upon condition that A should pay to B the money as he should raise it by sale of the goods, this will not make the execution fraudulent; and in such case, a subsequent act of bankruptcy will not prevent the sale.

[NOTE] In this case the provision respecting reputed ownership, in case of bankruptcy, is not sufficiently attended to.

And in the modern case of Kidd v. Rawlinson, 2 B. & P. 59, the goods of A being taken under an execution, were purchased at a public auction by B, who suffered A to continue in possession, and to carry on business, and A having afterwards executed a bill of sale of the goods to C, it was ruled that B was entitled to them as against C; and it was laid down that if B had lent A money to buy the goods, and had taken a conveyance of them, or a security for his debt-this arising out of the mere fact of lending his money, leaving A in possession of the goods-it would not have been a fraudulent act. And in a very late case, where a person assigned his effects to his trustees; and the son, in order to accommodate his mother, became the purchaser of the household goods at a fair appraisement, and suffered the greater part of them to remain in the house with his mother, who continued to reside there, and take lodgers as before ;-it being found by the jury that the change of property was notorious, and that the assignment was not executed with an intent to defeat either the general body of creditors, or any particular creditor; the title of the son was sustained against a subsequent execution by a creditor of the father, Leonard v. Baker, 1 M. & S. 251.—See also on this point, Bull. N. P. 258. Meggitt v. Mills, 1 Ld. Raym. 286. and the late case of Reed v. Blades, 5 Taunt. 212. Watkins v. Birch, 4 Taunt. 823. Mair v. Glennie, 4 M. & S. 248. Reed v. Blades, 5 Taunt. 212.

It is agreed, that an actual intention to defraud creditors will be sufficient to invalidate a transaction, which in other respects would be good. Without entering into an enumeration of the cases applicable to this subject, I shall barely refer to Cadogan v. Kennett, Cowp. 432, in which, upon a settlement of goods made previous to marriage, Lord Mansfield said-"The question in every case is, whether the Act done is a bona fide transaction, or whether it is a trick and contrivance to defeat creditors.— And Lord Ellenborough in Dewey, v. Baynton, 6 East. 257, already referred to, left the question to the jury in the precise terms cited from Cadogan and Kennett, and the principle was recognized by the court, though a new trial was granted for the purpose of bringing the facts more distinctly before the jury. See the observations of Lord Eldon on this subject, in Lady Arundel v. Phipps, 10 Vesey, 139.

See Estwick v. Cailland, 5 T. R. 420, in which a conveyance by Lord Abingdon of real and personal property in trust, after deducting expences to pay one moiety of the profits to Lord A. for his own use, and the other to certain creditors named in a schedule, was held good, the intention of fraud as against the other creditors being negatived by the jury. There was in this case some apparent possession in Lord A. after the deed, which the Court thought sufficiently explained. Buller J. observed, "Fraud is sometimes a question of law, sometimes a question of fact, and sometimes a mixed question of law and fact. On the whole it appears to me, that the deed, taken by itself, is a good and valid one; and that there are no extrinsic circumstances to shew that any fraud was intended."

As to particular badges of fraud, and the effect of fraudulent transactions, to deceive the Crown of forfeitures, &c. see Roberts, ch, 5, § 3.

PART II.

CLASS VIII.

Leases,*

(And herein of other Dispositions by Spiritual Persons.)

[ No. I. ] 32 Henry VIII. c. 28.-Lessees to enjoy the

Farm against the Tenants in Tail.

WHERE great number of the King's subjects have heretofore taken 32 Hen. VIII. leases of lands tenements and other hereditaments for term of years,

c. 28.

Wives or
Churches,
which be good,
which void,
2 Roll. 169,

332, 403, 407.

' and divers of them for term of lives, and have given and paid great Leases made 'fines and great sums for the same, and also have been at great costs by Tenants in and charges as well in and about great reparations and buildings upon Fee or Feetheir said ferms as otherwise concerning their said ferms; yet notwith- tail, in the 'standing the said fermors, after the deaths or resignations of their les- right of their sors, have been and be daily with great cruelty expulsed and put out of their said ferms and takings, by the heirs or successors of their said lessors, or by such persons as have interest therein after the deaths or re" signations of their said lessors, by reason of privy gifts of intail, or for that the lessors had nothing in the lands tenements or other hereditaments so letten at the time of the leases thereof made, but only in the right Savil, 85. of their wives, or such other like cause, to the great impoverishment Hutton, 84. and in manner utter undoing of the said fermors: For reformation 1 Leon. 59, 148. whereof be it ordained established and enacted, by the King our Sovereign 3 Leon. 156. Lord the Lords Spiritual and Temporal and the Commous in this present Leases made by Parliament assembled, and by authority of the same, That all leases Tenant in Tail, hereafter to be made of any manors lands tenements or other heredita- or by him which ments by writing indented under seal for term of years or for term of life, is seised in the by any person or persons being of full age of twenty-one years, having right of his any estate of inheritance either in fee-simple or in fee-tail, (1) in their own right, or in the right of their churches (2) or wives, or jointly with their wives, of any estate of inheritance made before the coverture or after, shall be good and effectual in the law against the lessors, their wives heirs and successors and every of them, according to such estate as is comprised and specified in every such indenture of lease, in like manner and form as the same should have been if the lessors thereof and every of them, at the time of the making of such leases, had been lawfully seised of the same lands tenements and hereditaments comprised Co. Lit. 44. in such indenture, of a good perfect and pure estate of fee-simple thereof to their own only uses.

Wife, or
Church, &c.

1 Lev. 112.

Cro. Jac. 173.

8 Co. 34. 10 Co. 60. Bro. Accept. f. 9.

Dyer, 51, 363.

II. Provided always, that this Act or any thing contained shall not 34 H. 8. c. 20. extend to any leases to be made of any manors lands tenements or here- Cro. El. 5, 350. ditaments, being in the hands of any fermor or fermors by virtue of any Special observations of Leases to be made by Tenant in Tail, or of the Wife's Land. Raym. 165. 1 Sid. 416. Dyer, 115, 246, 271, 279, 304. 5 Co. 2, 5. 2 Roll. 402. 5 Co. 6. Cro. El. 602. Cro. Car. 22, 44. Latch. 257. Bridgm. 29. Moor, 759, pl. 1050. Hob. 324.

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No. I.

c. 28.

old lease, unless the same old lease be expired surrendered (3) or ended within one year next after the making of the said new lease; (4) nor 32 H. VIII. shall extend to any grant to be made of any reversion of any manors lands tenements or hereditaments, nor to any lease of any manors lands tenements or hereditaments which have not most commonly been letten to ferm or (5) occupied by the fermors thereof, by the space of twenty years next before such lease thereof made; nor to any lease to be made without impeachment of waste, nor to any lease to be made above the number of twenty-one years or three lives at the most, from the day of making thereof; (6) and that upon every such lease there be reserved yearly during the same lease, due and payable to the lessors their heirs and successors, to whom the same lands should have come after the deaths of the lessors if no such lease had been thereof made, and to whom the reversion thereof shall appertain, according to their estates and interests, so much yearly ferm or rent or more, as hath been most accustomably yielden or paid for the manors lands tenements or hereditaments (7) so to be letten within twenty years next before such lease thereof made; and that every such person and persons to whom the reversion of such manors lands tenements or hereditaments so to be letten shall appertain as is aforesaid, after the deaths of such lessors or their heirs, shall and may have such like remedy and advantage to all intents and purposes against the lessees thereof their executors and assigns, as the same lessor should or might have had against the same lessees. So that if the lessor were seised of any special estate-tail of the same hereditaments at the time of such lease, that the issue or heir of that special estate shall have the reversion rents and services reserved upon such lease after the death of the said lessor, as the lessor himself might or ought to have had if he had lived.

Leases made by
Husband and
Wife of the
Wife's lands.

3 Leon. 132.
Jones, 60.
Hutt. 84.

1 Roll. 159,
163.
Latch, 45.

25 H. 8. c. 13. Leases of

Ferms.

III. Provided alway, That the wife be made party to every such lease which hereafter shall be made by her husband of any manors lands tenements or hereditaments, being the inheritance of the wife; and that every such lease be made by indenture in the name of the husband and his wife, and she to seal to the same; and that the ferm and rent be reserved to the husband and to the wife, and to the heirs of the wife, according to her estate of inheritance in the same; and that the husband shall not in any wise aliene, discharge, grant or give away the same rent reserved, nor any part thereof, longer than during the coverture, without it be by fine levied by the said husband and wife; but that the same rent shall remain descend revert or come after the death of such husband, unto such person or persons and their heirs, in such manner and sort as the lands so leased should have done if no such lease had been thereof made.

IV. Provided also, That this Act extend not to give any liberty or power to any person or persons to take any mo ferms, leases or takings of any manors lands tenements or other hereditaments, than he or they Leases of Par- should or might lawfully have done before the making of this Act; nor extend to give any liberty or power to any parson or vicar of any church or vicarage for to make any lease or grant of any of their messuages lands tenements tithes profits or hereditaments belonging to their churches or vicarages, otherwise or in any other manner than they should or might.

sonages or Vicarages.

(3) A lease is good upon a surrender conditioned to be void if a new lease is not made within a week.---Wilson v. Carter, 2 Str. 1201. A surrender by taking a new lease, to commence in future, takes effect immediately.---Semble, Thompson v. Trafford, Popham, 9.

(4) This being an enabling statute, does not apply to Leases made by the Bishop without the consent of the Dean and Chapter---and which did not require the aid of the statute---and such lease is not restrained by stat. I Eliz.---Fox v. Collier, Moor, 107, And. 65.

(5) If the land has been either most commonly let to farm, or let to farm for more than ten years

of the last twenty, it seems sufficient.---See Bacon, LEASES.

(6) Semble, that a lease for sixty years, determinable upon three lives, is good under this statute---the power in the first part being general--and the lease not falling within the proviso, as it does not exceed the limits prescribed.---Secus as to leases under the statutes 1 Eliz. & 13 Eliz.-.See Whitlock's case, 8 Rep. 69. --- Smith v. Trinder, Cro. Car. 22.

(7) Qu. if this authorises a letting in several parts of premises before let together, Semble, it does.---See 4 Cruise.---See also stat, 39 & 40 G. III. c. 41. infra. No. 14.

have done before the making of this Act; any thing contained in this Act to the contrary notwithstanding.

No. I.

32 H. VIII.

c. 28.

V. And furthermore be it enacted by authority aforesaid, That all leases at any time within the space of three years next before the twelfth day of April in the thirty-first year of our Sovereign Lord the King's reign, made by writing indented under seal, by any person or persons of full A confirmation age, of whole memory, not unlawfully coarcted nor being covert baron, of Leases made for term of years, of any manors lands tenements or other heredita- before the ments, whereof the lessor or lessors were seised of any estate of inhe- Statute by cer ritance of and in the same, to their own only use, at the time of making tain persons, any such lease thereof, and whereof the lessees their executors or upon certain assigns be now in possession by virtue of the same lease, and no cause conditions. of re-entry or forfeiture thereof had or made shall be good and effectual in the law against the lessors, their heirs and successors, and the heirs and successors of every of them, according to the covenants articles and agreements specified in every such indenture or lease: So always there be reserved and yearly payable during the same lease to the said lessors, their heirs or successors, or to such other as should or ought to have had the same manors lands tenements or hereditaments so leased after the decease of such lessors, in case no such lease had thereof been made, as much yearly rent for the same as was at any time therefore yielden or paid within twenty years next before the making of any such lease, or else such leases to be of no other force ne effect than they were before the making of this present Act.

any

judice her or

her heirs.
34 & 35 H. 8,
Explained by

VI. And moreover for certain consideration be it enacted by autho- The Husband's rity aforesaid, That no fine feoffment or other act or acts hereafter to be only act of the made suffered or done by the husband only, of any manors lands tene- Wife's Land ments or hereditaments, being the inheritance or freehold of his wife, shall not preduring the coverture between them, shall in any wise be or make discontinuance thereof, or be prejudicial or hurtful to the said wife or to her heirs, or to such as shall have right title or interest to the same by the death of such wife or wives; but that the same wife and her heirs, and such other to whom such right shall appertain after her decease, 6 Ed. 1, c. 3.. shall and may then lawfully enter into all such manors lands tenements 13 Ed. 1, st. 1, and hereditaments according to their rights and titles therein; any such fine feoffment or other act to the contrary notwithstanding; fines levied Moor, 58, pl. by the husband and wife (whereunto the said wife is party and privy) 164. only except.

c. 22.

c. 3 & 40.

Moor, 872. pl. 1215. 2 Inst. 681. Hob. 243, 261. Dyer, 72, 264, 368.
Co. Lit. 326. 2 Roll. 410, 491, 499.

VII. Provided furthermore, That this clause or Act extend not to give Leases made by any liberty to any such wife, or to her heirs, for to avoid any lease here- the Husband after to be made of any the inheritance of the wife by her husband and and the Wife her for term of one and twenty years or under, or any her inheritance of the inheri for term of three lives at the uttermost, whereupon as much yearly rent tance of the or more is or shall be reserved, and yearly payable during the same Wife. lease, as was at any time therefore yielden or paid within twenty years 119. Gold. 102, pl. next before the making of any such lease, according to the tenor of this present Act; any thing therein contained to the contrary notwithstanding. VIII. Provided also, That this Act extend not to make good any lease Leases made by or leases heretofore made by any ecclesiastical person or persons by their Ecclesiastical covent or common seal, which be made void or taken away by authority Persons attaintof any Act of Parliament heretofore made; nor extend to make good ed of Treason. any lease or leases heretofore made by any ecclesiastical person or per- 2 Roll, 507. sons now being attainted of treason under their covent seal or otherwise; or by any other person or persons now being attainted of treason by Act of Parliament or otherwise; but that all and singular such lease and leases, and every of them now made or hereafter to be made, shall be of such like effect and strength in the law, and none other, as they and every of them were before the making of this Act; any thing before mentioned in this Act to the contrary thereof notwithstanding.

No. II. 33 H. VIII. c. 27.

33 Hen. VIII. c. 27. Leases of HOBpitals, &c. good with consent of the more part. Dyer, 247.

19 H. 7, c. 7.

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[ No. II. ] 33 Henry VIII. c. 27.-The Bill for Leases of Hospitals Colleges and other Corporations.

ALBEIT that by the common laws of this realm of England, all assents elections grants and leases had made and granted by the dean warden provost master president or other governor of any cathedral church hospital college or other corporation, by whatsoever name they be incorporate or founded, with the assent and consent of the more or greater part of their chapiter fellows or brethren of such corporation, having voices of assent thereunto, be as good and effectual in the law to the grantees and lessees of the same as if the residue or the whole number of such chapiter fellows and brethren of such corporation, having voices of assent, had thereunto consented and agreed: Yet the said common laws, notwithstanding divers founders of such deanries hospitals colleges and corporations within the said realm have, проп the foundation and establishment of the same deanries hospitals colleges and other corporations, established and made amongst other their peculiar acts local statutes and ordinances, that if any one of such corporation, having power or authority to assent or disassent, should and would deny any such grant or grants, that then no such lease election or grant should be had granted or leased; and for the 'performance of the same, every person having power of assent to the same have been and be daily thereunto sworn, and so the residue may ⚫ not proceed to the perfection of such elections grants and leases, according to the course of the common laws of this realm, unless they should incur the danger of perjury:' For the avoiding whereof, and for the due execution of the common law universally within this realm, and every place, in one conformity of reason to be used; be it ordained established In Corporations and enacted by the authority of this present Parliament, That all and none shall have every peculiar act order rule and estatute heretofore made or hereafter a negative voice. to be made by any founder or founders of any hospital college deanry or other corporation, at or upon the foundation of any such hospital college deanry or corporation, whereby the grant lease gift or election of the governor or ruler of such hospital college deanry or other corporation, with the assent of the more part of such of the same hospital college deanry or corporation as have or shall have voice of assent to the same, at the time of such grant lease gift or election hereafter to be made, should be in any wise hindred or let by any one or mo, being the lesser number of such corporation, contrary to the form order and course of the common law of this realm of England, shall be from henceforth An Oath shall clearly frustrate void and of none effect; and that all oaths heretofore not be observed taken by any person or persons of such hospital college deanry and which is con- other corporation shall be, for and concerning the observance of any trary to this such order estatute or rule, deemed void and of none effect; and that Statute. from henceforth no manner of person or persons of any such hospital college deanry or other corporation, shall be in any wise compelled to take any oath for the observing of any such order estatute or rule, upon the pain of every person so giving such oath to forfeit for every time so offending five pounds; the one moiety thereof to be to the use of our Sovereign Lord the King, and the other moiety thereof to any of the King's subjects which will sue for the same in any of the King's courts of record, by action of debt bill plaint information or otherwise, wherein the defendant shall not be admitted to wage his law, nor any protection nor essoign, or any other dilatory plea admitted or allowed.

[ No. III. ] 1 & 2 Philip & Mary, c. 17.-An Act touching Leases hereafter to be made by certain Spiritual Persons.

1&2 Ph. & M. WHERE in the Parliament begun and holden at Westminster the eighth day of June, in the twenty-eighth year of the reign of our

6. 17.

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