No VIII. and invest the same in like manner, so that the same may accu- which Settler Estates to conveys Real clared of and concerning the same. AND after the decease of the Trustee in Fee said (lady), [INSERT HERE trusts to sell real estate, ut ante, upon trust, &c. Section III., No. VI., clause 8, p. 793.] Declaration of trust in favour of children. Power for trustees to invest shares of children before the same shall become transferable. Ultimate trust for the settlor and his nextof-kin. 9. AND IT IS HEREBY DECLARED, that the said (trustees) and the survivor of them, his executors and administrators, or other the trustee or trustees for the time being of these presents, do and shall stand and be possessed of the moneys to arise from such sale or sales as aforesaid, as also of the said stocks, funds and securities so directed to accumulate as aforesaid. [INSERT similar trusts in favour of settlor's natural children, as also provisions for survivorship and accruer, as are contained, ut ante, Section III., No. VL, clauses 13, 14, pp. 795, 796.] 10. PROVIDED ALWAYS, AND IT IS HERBY DECLARED AND AGREED, that it shall be lawful for the said (trustees) and the survivor of them, his executors or administrators, or other the trustees or trustee for the time being of these presents, at any time after the exercise of the aforesaid trusts of sale, and before all, any or either of the respective shares of the said children shall become so payable or transferable as aforesaid, to lay out and invest so much of the said trust moneys upon such or the like securities, and with such and the like powers of varying the same, as are hereinbefore mentioned of and concerning the residue of the rents and profits of the said hereditaments and premises after payment and satisfaction of the aforesaid annuity. 11. PROVIDED ALSO, AND IT IS HEREBY FURTHER DECLARED AND AGREED, that if all of the said children shall die before the shares hereby respectively intended for them shall become payable or transferable, THEN and in such case the said (trustees) or the survivor of them, his executors or administrators, or other the trustees or trustee for the time being of these presents, do and shall stand and be possessed of the said hereditaments and premises, or of the trust moneys, stocks, funds or securities, in or upon hich the same may be invested, UPON TRUST for the said (settlor), s executors, administrators and assigns, as part of his personal state, and to be distributable accordingly. [ADD clause of demnity to purchasers, ut ante, No. III., clause 19, p. 700. LSO power to change trustees, ut ante, No. IV., clause 16, p. 702.] IN WITNESS, &c. No. VIII. Deed of Settlement, by which Settlor conveys Real Trustees in Fee, Estate to upon trust, fc. No. IX. BOND GIVEN TO TRUSTEES TO SECURE AN ANNUITY TO A Obligation. Bonds given to 1. Bond. 2. Condition for avoiding bond on 4. Upon trust to pay annuity to lady so long as she shall remain single, and shall absent herself from the town and neighbour hood, and shall not attempt to anticipate the growing payments of the annuity. 1. KNOW ALL MEN BY THESE PRESENTS, that I (a) In the case of bonds given to a kept mistress, a distinction has been a kept mistress. taken as to whether such bonds were given in consideration of future or past Stat. 55 Geo. 3, c. 184. Stat. 13 & 14 (*) By the statute 55 Geo. 3, c. 184, bonds given as a security for the payment of an annuity (except upon the original creation and sale thereof), for any definite term, so that the total amount to be paid can be previously ascertained. were chargeable with the same duty as on a bond of the like nature. And when given as a security for the payment of any annuity (except as aforesaid, or of any sums of money, except at stated periods, for the term of life or other definite period, so that the whole of the money cannot be previously ascertained, such bonds were charged with an ad valorem duty commencing at 17. where the annuity did not amount to 251., and increasing to 251. where such anouity amounted to 2,000l. or upwards. But now, under the new Stamp Act (13 & 14 Vict. c. 97, schedule Bond), a bond in England or Ireland, and personal bond in Scotland, given for the security of any annuity (except as aforesaid), or of any sum or sums of money at stated periods (not being interest for any principal sum, nor rent reserved or payable upon any lease or tack,) for the term of life, or any other indefinite period, so that the whole money cannot be previously ascertained, where the annuity shall not exceed 501. per annum, shall be charge able with a duty of 17.; and where the same shall exceed 50%., but shall not exceed 100l. per annum, a duty of 21.; and where the same shall exceed 100%, then for every 100l. per annum, and also for every fractional part of 1001. per annum, a further duty of 21. No. IX. (obligor), of, &c., am held and firmly bound to (obligees for lady), of, &c., in the penal sum of 5,000l., to be paid to the said Bond given to Trustees to secure an Annuity of 1041. a Year to a kept Mistress upon a Separation. cohabitation. Cohabitation. If given in consideration of future cohabitation, such assurances have always been considered as invalid, being contra bonos mores, and holding out an inducement to crime: (1 Roll. Abr. 687, pl. 6; Walker v. Perkins, 1 W. Black. 517; S. C., 3 Bur. 1568; James v. Hoskin, 1 Tidd Pract. 593; Friend v. Harrison, 2 Car. & Pay. 584; Rex v. Northwingfield, 1 B. & Ad. 912; 1 Selw. N. P. 468.) But when given in consideration of past cohabitation, the trans- Distinction action is viewed in a totally different light; for in the latter case, so far from between bond holding out an inducement to crime, it affords the erring female the means of given in leading a more virtuous life: (Turner v. Vaughan, 2 Wils. 339.) The conduct consideration of future and past of a woman, however abandoned, will not invalidate a bond given for past cohabitation (Hill v. Spencer, Ambl. 641); nor will even the circumstance of her having had a criminal connexion with another man after she was taken in keeping avoid the security: (ib.) A different doctrine seemed at one time to have prevailed in equity, where, if it had been charged in a bill that the defendant was a common prostitute, and had drawn on the obligor to give the security, the court would have relieved against it: (Whaley v. Norton, 1 Vern. 484.) Still, it appears that in most of these cases the ground of relief was founded upon the circumstance of the securities having been given previously to the cohabitation, which, being a consideration of a criminal nature the court was bound to relieve against; and however severely courts of equity might formerly have looked upon securities of this kind, they have latterly refused to relieve an obligor against a bond given for past cohabitation, on the ground already stated, that such a provision enables a woman in such an unfortunate situation to lead a life more conducive to her happiness, and to public morality: (Bainham v. Manning, 2 Vern. 242; Gray v. Mathias, 5 Ves. 286.) Courts of equity also formerly, even in cases where they would not relieve the obligor himself, would have afforded this relief to his representatives (Mathews v. Hanbury, 2 Vern. 187; Bainham v. Manning, 2 Vern. 242; Bodley v. -, 19 Vin. Abr. 301 E.; S. C. 2 Cha. Cas. 15), but it does not seem that this distinction would now be recognised, and that where relief would be refused to the party himself, it would not be afforded at the request of his representatives, however far the court, under the circumstances of the case, might refuse to assist the woman claiming under the bond. And it seems that equity will in no case relieve the obligor on his own application: (Spicer v. Hayward, Pre. Cha. 114.) But although courts of equity will not relieve the obligor on his own appli- Whether equity cation, they would not formerly have lent their aid to enforce the securities will refuse to where the consideration was for past cohabitation with a married man, and assist the the woman herself was aware of that fact (Priest v. Parrot, 2 Ves. 160), woman on the although it was otherwise where she was unaware of the circumstance of the ground of the man being married (Annandale v. Harris, 2 P. Wms. 432; 3 Bro. P. C. 443; obligor being a married man. and see Ord v. Blackett and Carew v. Stafford, cited in Annandale v. Harris, sup., and see 1 Eq. Ca. Abr. 31; 3 Swanst. 427); but in a recent case in which the question arose, the Vice-Chancellor sent a case to the Court of King's Bench to inquire whether the circumstance of the defendant being a married man was a good defence at law to an action on such a bond, when that court certified that it was not a good defence; so that the distinction above stated may be considered as exploded: (Nyne v. Moseley, 6 B. & C. 133; 9 D. & Ry. 165; 2 Sim. 161.) And in all cases where any fraud has been practised upon the woman, equity Where fraud will relieve her. As, in a case where a man, having debauched a young female, has been and, intending afterwards to deceive her, made a settlement upon her of 301. practised upon a year for life out of an estate not belonging to him, the court decreed him to the woman, make it good out of an estate which was his own property, and this decree was equity will afterwards affirmed upon appeal to the House of Lords: (Carew v. Stafford, relieve her. No. IX. (obligees), or their certain attorney, executors, administrators or Bond given to assigns, for which payment to be well and truly made I hereby Trustees to bind myself, my heirs, (b) executors and administrators, and every of them, firmly by these presents. [INSERT recitals of obligor and a kept Mistress the lady having lived together, and their mutual agreement to separate, secure an Annuity of 1041. a Year to upon a Separation. and that the obligor has agreed to settle an annuity upon her during Equity will not decree a specific performance of a voluntary promise by letter. Whether past cohabitation will afford a sufficient consideration to support an action of assumpsit. Bonds of the above kind being voluntary, the payment of them will be postponed in favour of creditors, but not of legatees. named. 1 Eq. Ca. Abr. 427.) So, where Sir W. B., having seduced Mrs. Ord, then s young lady of about fourteen years of age, of a good family, and entitled to 12,000l. fortune, settled on her 3607. per annum for years; but the estate was incumbered, and Mrs. Ord dying, her administrator brought a bill in order to disencumber the land, which was charged with the annuity, and was relieved accordingly: (Ord v. Bluckett, cited in Annandale v. Harris, 1 Eq. Ca. Abr. 87, pl. 6; 2 P. Wms. 433; 19 Vin. Abr. 903, pl. 2.) But equity will not decree a specific performance of a voluntary promise by letter in favour of a woman seduced (Kyne v. Moore, 1 Sim. & Stu. 61), for the promise being voluntary, is insufficient to found a bill upon for its perform ance. Whether past cohabitation will afford a sufficient consideration to support an action of assumpsit, does not appear to be satisfactorily determined. In Beanington v. Wallis (4 B. & Ald. 650), it was held that past cohabitation alone, or the ceasing to cohabit in future, was not a sufficient consideration; but at the same time the court expressed an opinion that if it had been alleged the defendant was the seducer, the promise might have been supported. And in another case (Gibson v. Dickie, 3 Mau. & Selw. 463) where assumpsit was brought upon an agreement by the defendant to allow the plaintiff with whom he cohabited, an annuity in case they should separate, provided she should continue single, the chief objection seems there to have been, not as to the validity of the consideration, but as to whether the condition to live single could be recognised; but it seems that the consideration is insufficient, and it is clearly settled that a court of equity will not compel the party or his executors to fulfil any executory agreement to provide for a forsaken kept mistress (Whaley v. Norton, 1 Vern. 483 ; Mathews v. L————————e, 1 Mad. 558), unless, as in the cases previously alluded to, some fraud has been practised upon her relative to the nature of the security. Bonds of this kind being purely voluntary, equity will postpone the payment of them out of the personal estate until all the other creditors, as well those by simple contract as by specialty, are fully satisfied; but if the personal estate proves insufficient, then such bonds must be paid out of the real estate, if there be any: (Jones v. Powell, 1 Eq. Ca. Abr. 84, pl. 2; Gray v. Rooke, Ca. temp. Talb. 133; Harris v. Annandale, sup.; Robinson v. Gee, 1 Ves. 254.) And bonds of this kind will be entitled to priority in payment to legacies, for in the former instance the right is transferred in the obligor's lifetime, whereas in the case of such legacies, such right does not accrue until his death, and as both species of gifts are voluntary, so, according to the long-established maxim, "qui prior est tempore, potior est jure," the right which does not arise until the testator's death must be postponed to a right created in his lifetime: (Fairefeard v. Bowers, 2 Vern. 202; S. C., Pre. Cha. 17; Jones v. Powell, 1 Eq. Ca. Abr. 143, pl. 15.) Heirs of obligor (b) The heirs of obligor will not be bound unless expressly named) Barber not bound unless v. Fox, 2 Saund. 136; Gifford v. Manley, Ca. temp. Talb. 109; 3 Bsc. Abr. 458); but it is otherwise with respect to the personal representatives, who are equally bound, whether named or not: (Dy. 14, pl. 69; 2 Wms. Saund. 137; Noy. Max. 105.) ま |