« PreviousContinue »
of himself until such marriage happens, and then for the 1803. use of himself for life, then for his wife, first, and other sons, &c. This sort of engagement makes him liable to be a Bankrupt. sued by the trustees, whether he become bankrupt or not. But here there is an express covenant for the payment of 800l. on the contingency of the wife's surviving the husband, and then comes a clause which takes notice of the husband's being a trader, and that it is necessary to secure something in the event of his bankruptcy: for that purpose a bond is to be given payable at a day certain, but that sum is not to be recovered from him unless he becomes insolvent. As to this sum, therefore, though certainly it is a legal demand, yet on the foundation of this settlement, if an attempt were made to sue him on the bond, or to enter up judgment while he continued solvent, he would have a right to come into a court of equity and prevent it, and to have the contract, which was the ground of the bond, carried into execution by restraining proceedings on the bond. I am to take the debt as it stands on the whole of the instru. ments executed ; and the contract in the deed of settlement is, that the bond shall have no effect but in case of bankruptcy; for it is not the bond that is to operate in case of the husband dying before the wife; it is not the bond that. is the security to the wife if she survives, nor to the children in case she dies before her husband. So that the whole effect of the clause is to avoid the operation of the bankrupt laws; and then the question is, whether a person can be admitted to prove as a creditor, on the foundation of an instrument contrived for the purpose of defeating the effect of the bankrupt laws, where the only ground of the claim is an instrument executed for the purpose of giving a right against creditors, which would not exist against the bankrupt if he were solvent. All the cases in England have held this to be a fraud upon the bankrupt laws which cannot be supported; por really can any thing, where the contingency Vol. I.
1803. is an act of bankruptcy and where the demand does not MURPHY;
arise till an act of bankruptcy committed, be proveable una Bankrupt. der it, because it did not exist before it.
The cases which have been mentioned are of a totally dif. . ferent description. Ex parte Winchester was a case where, the debt was a debt at law, because the condition of the bond (the payment of interest) was not performed, and therefore the bond was forfeited at law, and the only right which existed in the party himself to resist the demand on the bond was that a court of equity might relieve against lapse of time, so far as it might not be to the prejudice of the party who had suffered through the lapse. Lord HARDWICRE thought this debt might be proved ; there was no contrivance in this case to defeat the bankrupt laws; the interest of the bond was intended as a support for the daughter of the bankrupt during his life, and the principal as a provision for her and her issue after his death : it was a fair bond, and on breach of the condition, there was a clear right to sue ; and there was nothing but the equity arising from what I may call the practice of courts of equity that could relieve against it.
So in the case of a bond for payment of an annuity,(a) where each half-yearly payment is a separate debt : if the bond be forfeited previous to the act of bankruptcy, the creditor is admitted to prove for the value of the annuity ; because, the bond being forfeited at law, there is no equity to relieve against that forfeiture, for it cannot be relieved against without prejudice to the creditor, and he has an equity to resist the equity that would be raised against him.
I think to encourage such an application as this would be extremely improper; and I find the cases uniformly de
(a) 1 Cooke's Bankr. L. 181.2 Edit. Dougl.501. Wylie v. Wilkes
cided the other way, that courts have not permitted the form of the instrument to get the better of the actual contract between the parties.
I am bound to decide in favour of a debt which is due in conscience, whether it be a legal or equitable debt, or a legal debt qualified by equity ; but if it appear to be a contrivance to evade the bankrupt laws, I conceive it is not a conscientious debt. Therefore I think the dividend must not be paid on this debt.
The motion But I can make no order on this petition at all; the as
ought to have signees should have applied to expunge the debt, and not been on the
part of the as. the party to be paid it; for I cannot on this petition order
signees, to es. the debt to be expunged.
punge the debt.
SHANNON v. BRADSTREET. January
26, 31. Tenant for SIR SIMON BRADSTREET, Baronet, by his last will life, with a devised the lands of Portmahon to the use of his second son leasing power, enters into an
Samuel (afterwards Sir Samuel) Bradstreet, for his life, with
y out impeachment of waste, remainder to trustees to prearticle, to make a lease serve contingent remainders ; and from and after the depursuant to the power.
cease of Samuel, to the use of his first and other sons, and This agree:. , the heirs male of their bodies, with several remainders ment shall bind the remainder. over ; and the testator gave and reserved “ a power to the man,
“ said Samuel, only when in possession of such lands, to “ make any lease or leases of said lands and tenements, or “ any part thereof, except the mansion-house, &c. but with"out fine, and to take effect in possession and not in rever“sion, for any term not exceeding three lives or thirty-one “ years, at the best improved yearly rent that could be had for at the time of making the said lease, and without any s clause of being dispunishable of waste,"
Sir Samuel Bradstreet having become seized of a life estate under this devise, in the year 1790, entered into a treaty with the plaintiff, to demise to him the lands in question, and an agreement was made for a lease to the plaintiff for the term of thirty-one years, from the first day of No. vember 1790, at the yearly rent of 71, per acre, for such number of acres as the lands should upon a 'survey be found to contain ; the lease to contain the usual covenants between landlord and tenant, and also a covenant that the plaintiff should within the first three years lay out 2001, in buildings and permanent improvements. A draft of a lease pursuant to this agreement was prepared by the plaintiff, and laid before Sir Samuel, who made some few altera
cions therein, and returned it with the following indorsement in his own hand writing.
“I approve of this draft: until a survey can be had, so as “ to ascertain the rent, Mr. Shannon may execute a short “memorandum to me according to the terms of this draft, " and may have the immediate possession. “ 29th October, 1790.
A memorandum was accordingly prepared, (but whether by Sir Samuel, or by the plaintiff did not appear) it was signed by the plaintiff and delivered to Sir Samuel, who delivered a copy or abstract of it, in his own hand writing to the plaintiff, the original remaining in the custody of Sir Samuel; the memorandum was as follows:
“ I, Peter Shannon, of the city of Dublin, tanner, do here" by agree with Sir Samuel Bradstreet, to take a lease for 31 “ years from the first day of November 1790, of the lands “ of Portmahon, in the county of Dublin, late in the pos“ session of Michael Kane, and his representatives and “ under tenants, at the yearly rent of 71. for every acre the “ said lands upon a proper survey to be had shall appear to “ contain, and so in proportion for every lesser quantity “ than an acre. I also agree to lay out in the first three “ years in houses, buildings, and permanent and useful ,“ improvements the sum of 2001. Leases to be drawn as u usual between landlord and tenant."
Immediately after execution of this memorandum, the . plaintiff entered into possession, and laid out considerably more than 2001. in improvements, but no leases were ever executed. Sir Samuel (who was at, and for several years before his death, one of the judges of the court of King's Bench) died on the 2d of May 1791, leaving the