20th of May, 1862, must, I think, be considered in determining it. The plaintiff's title to relief under the agreement of the 12th April, 1862, is disputed by the appellants upon three grounds: 1st. That at the date of that agreement there was no vessel which had in any way been appropriated to Fisher, and therefore no property on which the agreement could operate as a *568 charge;1 2d. That the agreement was null and void in consequence of its not having been registered under the Bills of Sale Act; and 3d. That the cancellation of the agreement determined and put an end to any possible title of the plaintiff under it. * The plaintiff's title to relief under the agreement of the 20th May, 1862, is also disputed by the appellants on three grounds: 1st. On the same ground of non-registration under the Bills of Sale Act; 2d. On the ground of the vessel having (as it was contended) been in the order and disposition of the bankrupts at the time of their bankruptcy; and 3d. On the ground of the agreement being (as it was insisted) a fraudulent preference of the plaintiff to the other creditors of the bankrupt. As to the points insisted on by the appellants against the title of the plaintiff under the agreement of the 12th April, 1862, I think that the third point is in its consequences fatal to the plaintiff's case under that agreement, for whether that agreement could or could not have been kept alive as between the plaintiff and Brown & Briggs, notwithstanding that it was cancelled as between Brown & Briggs and Fisher, it seems to me that it was not in fact so kept alive, but that by the agreement of the 20th May, 1862, it was merged into and taken as part payment of the purchase-money payable under that agreement. It is not, therefore, in my view of the case, necessary for us to give, and I do not mean to give, any opinion upon the first and second points relied upon by the appellants against the plaintiff's title under the agreement of the 12th of April, 1862; but it may be right to say, that I am by no means satisfied that either of these points could be maintained by the appellants; for it does not follow that 1 See 1 Chitty Contr. (11th Am. ed.) 356, 357 and notes; Andrews v. Durant, 1 Kernan, 35; Briggs v. A Light Boat, 7 Allen, 293; Williams v. Jackman, 16 Gray, 514; Story Sales (4th ed.) §§ 234, 316; Sandford v. Wiggins Ferry Co., 27 Ind. 522; Wright v. Tetlow, 99 Mass. 397. because no property passed at * law in the ship to be built * 569 there might not be a perfectly good and valid contract affecting it in equity; nor am I prepared to say that the Bills of Sale Act, whatever its operation (if any) might be as to the vessel, would destroy the title under the agreement. As to the points insisted upon by the appellants against the plaintiff's title under the agreement of the 20th May, 1862, I am of opinion that, so far as this agreement is concerned, the Bills of Sale Act has no application to the case; and I am of opinion also that the appellants cannot maintain their case upon the ground of the vessel having been in the order and disposition of the bankrupts. Holderness v. Rankin (a) seems to me to settle that point. The sole question on this part of the case, as I think, is whether there was a fraudulent preference, and I think that there was not. In order to justify such a conclusion, it would, I conceive, be incumbent on the appellants to show that this agreement was not a bona fide agreement, but was a mere colourable contrivance to secure to the plaintiff the payment of what was due to him; and I think the evidence falls far short of what would be necessary to justify such a conclusion. My conclusion, therefore, is, that the agreement of the 20th May, 1862, was a valid agreement; and this being the case, and it having become impossible that the agreement could be performed, I think the plaintiff had a lien for the purchase-money which he had paid, and was entitled to a sale by virtue of that lien. * To meet this view of the case, I think the decree should be altered by striking out the words "under and by virtue * 570 of the indenture dated the 12th of April, 1862," contained in the declaration, and by confining the account to the 500l. and interest. In all other respects I think the decree should stand; but having regard both to the alteration in the decree and the difficulty of the case, I think there should be no costs of the appeal. -I THE LORD JUSTICE KNIGHT BRUCE. I agree, subject only to some degree of doubt, which does not, however, amount to more than a doubt, as to the right of the plaintiff with respect to his advances, if any, beyond the 5007. But this is the less material, as I understand that the advances have not exceeded that sum. (a) 2 De G., F. & J. 258. In the Matter of P. W. LE GEYT'S ESTATE. NOSOTTI v. JEFFERSON. 1863. June 25, 26. Before the LORDS JUSTICES. An executor may, after allowing a reasonable time to elapse after the testator's death, pay simple contract debts in priority to specialty debts, of which he has no notice; and where the testator lived and died in India, and the executor seven months afterwards received notice of the existence of the will and his own appointment as executor, and three months afterwards repaid to the testator's widow moneys for which his estate was liable on simple contract, and which she had paid out of her own moneys, and then sixteen months afterwards received notice of a specialty debt due to a creditor of the testator in India: Held, that he was justified in making the payments which he had made to the widow, she having by those payments placed herself in the position of the creditors whose claims she had discharged, and that the date of his repayment to her was the date at which the payment by him out of the estate of the so discharged debts must be considered to have been made. THIS was an appeal by the defendant from the refusal of ViceChancellor STUART to vary the chief clerk's certificate in a suit to administer the estate of a testator as regarded the disallow* 571 ance of the payment of a simple contract debt, on the ground of there remaining an unsatisfied debt of a superior degree. The testator died in India in June, 1860, but it was not till January, 1861, that the appellant, the executor, was apprised of the existence of the will. On the 25th April, 1861, the testator's widow, who was in this country, informed the appellant that she had, since the testator's death, made several payments to simple contract creditors, who had supplied her with necessaries. The appellant concurred in a valuation of some furniture of the testator in the house in which she lived, and permitted her to retain an adequate part to repay her. Afterwards she paid other debts of the testator to an amount in the whole (with the former) of 4127., being the whole value of the furniture, and was allowed by the appellant to retain the residue of the furniture in repayment of these advances. In August, 1862 (the will having been brought to England in July, 1861, and proved here in the September of that year), the respondent, who resided in India, demanded pay ment in the suit of a specialty debt, of which the appellant had had no previous notice. The assets proved insufficient, and the chief clerk refused to allow to the appellant the amount for which the furniture had been valued, as having been applied in payment of simple contract debts whilst a debt of a superior degree existed. The Vice-Chancellor declined to vary the chief clerk's certificate, being of opinion that the payment of the simple contract debt in the present case had been made without giving the respondent sufficient time to prove his specialty debt, and that although the circumstances of the case excluded all notion of a fraudulent intention on the part of the appellant, who evidently had acted bona fide and with the best intention, yet there might be, and in the present case had been, fraud in the sense in which the *572 Court sometimes used that expression; viz., that of (with * out any fraudulent intention) depriving a person of the opportunity of exercising his right. The appellant thereupon presented the present appeal. Mr. Malins and Mr. C. T. Simpson, for the appellant. Upon the facts, the date of the payment of the debts in question by the appellant was the month of April, 1861, when he allowed the repayment thereof to the widow; that was nearly ten months after the testator's death, a fact which sufficiently disposes of the charge of undue precipitancy in paying the simple contract debt while a debt of superior degree was in existence, but unknown to the executor. They referred to Hawkins v. Day, (a) Harman v. Harman, (b) Toller on Executors, (c) Norman v. Baldry, (d) Brooking v. Jennings. (e) Mr. T. Stevens (Mr. Bacon with him), for the respondent, the specialty creditor, in support of the Vice-Chancellor's order. It is a fallacy to say that the time to be considered in this case is that of the payments to the widow. The time is that when the widow herself paid the debts of which she afterwards obtained repayment from the appellant; and the time when she paid such (a) Ambl. 160, 803. (b) 2 Show. 492; 3 Mod. 115. VOL. III. 28 (d) 6 Sim. 621. [433] * 573 * debts is, on the evidence, little more than four months after the testator's death, some of them, in fact, having been made before news of the testator's death could have reached England. That being so, there was an undue precipitancy on the part of the appellant in allowing the repayment to the widow, and the variation of the chief clerk so finding was properly refused. The precipitancy of the transaction is further shown by the fact, that until probate was granted there was no one the appellant not having acted as executor-to whom the specialty creditor could have given notice of his debt, and a sufficient time after probate ought to have been allowed for the purpose. Another ground for upholding the certificate is, that the widow, by making these payments, was, in fact, acting as, and consequently rendering herself liable as, executrix de son tort of the testator; and it was clearly her object, in negotiating the furniture arrangement with the appellant, to screen herself. But that did. not justify the appellant in acceding to her view and ratifying what she had done; and, as he had done so, the consequence of his act must rest upon himself. He commented on Hawkins v. Day, (a) and referred to Oxenham v. Clapp. (b) Mr. Schomberg, for the plaintiff, a simple contract creditor, took no part in the argument. Mr. C. T. Simpson, in reply. THE LORD JUSTICE KNIGHT BRUCE. The death of this testator took place in India in the month of June, 1860. The wife of the testator had been living in this country for a considerable time before his death, and his remittances to her having become irregular, she borrowed money for necessaries. On the evidence it must be taken that the debts so contracted were debts due from the husband's estate. After his death she was pressed for money due from him, and she again borrowed moneys to enable her to pay some of the debts which she had incurred upon his credit. his credit. After that the will was proved and an * 574 * |