« PreviousContinue »
any heir that could be discovered, and the court restrained 1803. the executor of the mortgagee from proceeding at law to SCH compel payment of the money, there being no heir' who and Wife could re-convey: the money was ordered into court until så. the executor should find the heir, and the cause remained An executor
while of a mortgagee some years in court, until at last it was thought worth while
restrained from to get an act of parliament to revest the estate on an allega- enforcing pay
ment, and the tion that the heir could not be found, and the crown giving m its consent.
ed into court, where there
was no heir of In this case, Mr.Schoole claims in right of his wife, and
of his wife and the mortgagee
who could rehe must therefore answer for the conduct of his wife, be it convey. what it may, and for the conduct of the attorney whom she employed, so far as that conduct is injurious to the defendant. It is evident that Schoole has it not at present in his power to make a re-conveyance, so that if he should be allowed to recover the money on the judgment, the mortgagor would be put to great inconvenience. Therefore I shall direct an injunction to stay proceedings at law, and refer it to a master to take an account of what is due for principal, interest and costs, and the costs of the proceeding at law, (for I do not think that proceeding so unconscientious on the part of Mr. Schoole as to deprive him of his costs) and that the money shall be paid into the bank, to remain until the title deeds are secured, and a re-conveyance can be had. . Mr. Sall must pay the costs here also.
END OF THE SITTINGS AFTER EASTER TERM.
TRINITY TERM, -1803.
GENERAL RULE. June 18.
THE LORD CHANCELLOR is this day please Time for slie wing cause order, that in future, in all cases where conditional orders against condi. tional orders. are granted, if cause be not shewn upon the motion day next
after the expiration of the time limited by such order, or a notice of shewing cause served, (which motion is to be entered with the register) that the register do give a certificate of no cause : and it is further ordered by his lordship, that notices so entered with the register do have precedence of all other motions save injunction motions.
Reg. Lib. (Mot.) lxxvi. 359.
GENERAL RULE. .. June 18.
Personal in. THE LORD CHANCELLOR is this day pleased to terrogatories to order, that in future in all cases where personal interrogabe settled by the master.
tories for examinations before the masters are exhibited under the order of the court, that such interrogatories be set. dled and approved by the master, as of course, in case the party to be examined shall require the same.
Reg. Lib. (Mot.) lxxvi. 359.
MATTER OF MEAGHAN, A BANKRUPT.
July 1. HENCHY moved on the petition of the assignees, A trader on that the proof of a debt of 1,000l. made by John Parker his marriage,
receives 6001. as trustee in the marriage settlement of the bankrupt and his wife's por. his wife, might be expunged, on the ground of the provi.
a bond for sions in the settlement being fraudulent'as to creditors. By 1,0001. to a
trustee, the in. marriage settlement dated 29th July 1797, made between terest the bankrupt of the first part, his then intended wife of the to himself for,
life, if he shall second part, and the trustee of the third part, it was agreed continue sol. that 6001. part of the marriage portion of the wife, should ve
w of his death or be paid to the bankrupt upon his executing a bond and war- insolvency, the rant in a penal sum of 2,000l. conditioned for payment of wife for her life
c interest to his 1,000l. with lawful interest for the same within six months and the princi.
pal among the from the date thereof; and it was provided by the settlement Children of the that the said bond and warrant, and the money thereby secured should be held in trust from and after the solemnization the claim of the
trustee on beof the marriage to pay and dispose of the interest thereof to ha
os lo half of the wife, the bankrupt for life, in case he should continue solvent; for interest, al.
lowed, as far as and in case of his becoming insolvent or in case of his death, the 6007. 6 then in trust to pay and dispose of such interest thereof as not for the re.
maining 14001. should accrue due from such death or insolvency, to such persons and uses and in such proportions as the wife should notwithstanding her coverture appoint, to the intent that the same might not be subject to the debts of her husband; and in default of such appointment to the sole and separate use of the wife: and from and after the decease of the survivor, in case said bankrupt should continue solvent during his life, (but if not, then after the decease of the wife and the insolvency of the bankrupt) upon trust to pay the principal to and
amongst the children of the marriage, and in default of issue to the survivor of husband and wife.
Mr. Huband on the part of the trustee, argued that this was not a fraudulent settlement, and cited Ex parte Groome, 1 Atk. 115, ibid. 113, 120, 8 T. R. 589, (a) 2 Bl. 1106; Wyllie v. Wilkes, Dougl. 501, 2 Ves. 450, and 1 Atk. 251.
Mr. Henchy in reply mentioned the matter of Murphy, a Bankrupt, ante 44, and Ex parte Henecy, cited ante 46.
Lord CHANCELLOR. This is a bond, which is a debt due, and nothing fraudulent is suggested but one stipulation, namely, as to the interest in case of insolvency. In England, where a provision of this kind is confined to the property of the wife, it is considered fair; but when it goes beyond that and attaches on the property of the husband it is held to be fraudulent, because no bounds can be set to it: if a trader can make a provision of this sort to the amount of 1,000l. he may da so to the amount of 100,0001. and so may stipulate on his marriage to take all his property out of the hands of his creditors by charging it, contingently, with payment of interest for his wife and children, as a maintenance for them, though in effect a provision for himself. In this case the interest so far as the dividend on 600l.: (the wife's fortune) must be paid to the separate use of the wife
(a) Staines v. Plank. Vid. the passage cited ante, p. 46, and commented on by the Lord CHANCELLOR, p. 48. His Lordship now took occasion to observe that Lord Kenyon merely meant to say that a debt of this description might be so framed as to be proveable on the insolvency: but that it was merely a dictum, not necessary to the decision of the case, and pronounced by Lord KENYON after his Lordship had been long out of the habits of practice in a court of equity.
according to the settlement: but as to the dividend on the 1803.. remaining 4001. it falls within all the cases.(a)
a Bankrupt “Let the proof of the debt of 1,000l. in petition men« tioned stand, but declare that the trusts of the settlement, “ so far as they give the interest of 400l. part of the said “ 1,000l. to the wife and children during the life of the “ husband upon his becoming insolvent, ought to be deemed “ fraudulent and void. And let the interest of the dividends " to be received on such debt to the extent of six-tenths “ thereof only be paid to the trustee of the wife of said “ bankrupt to her own separate use for life. And let the “ interest on the remaining four-tenths be paid to the as“ signces during the life of said bankrupt : and upon the “death of said bankrupt, living the wife, let the interest be “ paid to the trustee of said wife for her life; and upon the “ death of the said wife, living the husband, let the interest “ be paid to the trustee for the benefit of the children, if “there shall be any, for the life of the husband : and up“ on the death of the survivor of husband and wife, let the "principal and interest be paid and applied for the benefit “ of the children, if any, according to the settlement: and " if none, then let the principal be paid to the wife if she “shall survive the husband, and if the husband shall survive " then to the assignees, according to the trusts of the set
(a) Lockyer v. Savage, 2 Str. 947.