to take less than she was strictly entitled to, and give up such life interest to her husband so long as he remained solvent. In Hammonds v. Barrett (14), decided in 1869 by Vice-Chancellor STUART, there was a post-nuptial settlement of a fund which partly belonged to the husband and partly to the wife, all settled upon trust after the wife's life interest, to pay the income to the husband for his life or until he should become bankrupt or take the benefit of any Act for the relief of insolvent debtors, or commit or do any act, deed, matter or thing whatsoever, whereby the interest, dividends, and annual profits of the said stocks, funds and securities, should become vested in any other person, and then or after his decease upon the children of marriage.

Mrs. Barrett died in 1862, and in May, 1866, Mr. Barrett assigned the income by way of mortgage to secure payment of a bond. In April, 1867, he became bankrupt, and the question arose whether the trustee in the bankruptcy was entitled to any part of the income of the fund. Vice-Chancellor STUART held he was not. The judgment is very short, and I will read it in extenso. "This is not

the ordinary case of a post-nuptial settlement by which a husband settles his own property, reserving to himself a beneficial interest, defeasible upon alienation or bankruptcy. The principal part of the subject-matter of the settlement is a sum which comes from the wife's brother and not from the bankrupt or his wife, and this being so, it is perfectly clear that the brother had a right to say that the smaller sum settled by the husband did go over on his bankruptcy. There is nothing obnoxious to the rules of bankruptcy, and no fraud on creditors by this stipulation." Stopping there, these expressions seem to indicate the opinion of the V.-C., that the settlement was good as against the trustee in bankruptcy. Then he goes on: "The assignee therefore is not entitled to any of the stock, the life interest of the bankrupt having ceased upon the execution of the bond."

It is material therefore to observe that the alienation preceded bankruptcy, and the question therefore did not really arise before him. It seems to me that that case must be dealt with as one of another class, where on a gift over on alienation it has been held that there is nothing in public policy against such a limitation.

M.-VOL. II.

D

That was decided in Brooke v. Pearson (29), 'Knight v. Brown (30), In re Detmold (31).

In Learmouth v. Miller (28), which was a Scotch case, decided by the House of Lords, in 1875, there was a post-nuptial settlement of the legitim or share of the wife in her father's estate upon trust for the husband for life, remainder to the wife for life, and to the children, but so as not in anywise to be attachable for debt, or if the husband became bankrupt. It was held that the trustee in bankruptcy was entitled to the income of the fund during the husband's life. It is clear that there is no wife's equity in that country, see In re Tweedale's Settlement (32), and the case therefore does not necessarily govern one where such a right exists, but I have thought it right to refer to it because of some observations of Lord CAIRNS on p. 440, as to English law. His Lordship says: "It is a stipulation with regard to the husband's life-rent use that it shall be in no wise attachable for his debts, but shall be considered alimentary for his benefit. Then the question is whether a stipulation of this kind in a post-nuptial contract is permissible and valid according to the law of Scotland? According to the law of England it clearly would be invalid, and, my Lords, as I understand the law of Scotland, it is invalid equally by the law of Scotland. It is an attempt made by an owner of property to place it in such a position as shall prevent his creditors or his assignees or trustees in bankruptcy on sequestration from taking it and using it for the payment of his debts. My Lords, I asked whether there was any instance where the owner of property in a contract for valuable consideration could be found entitled to make a provision of that kind. I do not desire, my Lords, to express any opinion whether it could or could not be done, but no instance has, as a matter of fact, been adduced at your Lordships' bar, where it has been held valid."

Montefiore v. Behrens (27), and Hammonds v. Barrett (14), do not throw much light on the question on which Lord CAIRNS thus refrained from expressing an opinion, and it appears therefore, to a limited extent at least, to call for decision now.

(29) 27 Beav. 181; 7 W. R. 638.

(30) 7 Jur. N. S. 894.

(31) 40 Ch. D. 585; 58 L. J. Ch. 493; 61 L. T. 21; 37 W. R. 442.
(32) Joh. 109.

I think that the cases of marriage settlements show, and Whitmore v. Mason (1), is an express authority for the proposition, that the mere existence of valuable consideration does not entitle the owner of property to settle it on himself until bankruptcy. The cases of which Lester v. Garland (12) is a type, are only apparent exceptions to this rule, for there, as pointed out by Lord HATHERLEY in the passage I have cited, the Courts treat the property of the husband as being in substance property of the wife. On the other hand I am unable to find any good reason for holding that these exceptional cases are to be confined to marriage settlements. The principle, I think, appears, and indeed Lord HATHERLEY laid it down in all cases where "the Court can find a definite sum which can be appropriated as the wife's property," and in all such cases that definite sum is to be treated not only as the consideration for the settlement, but the identical property of the wife brought into settlement. In my judgment, such a definite sum can be discovered in the present case, namely, the balance of 35,032 rupees mentioned in the settlement of 1884. Consequently I am of opinion that to the extent of this sum the property settled by the husband must be treated as the wife's property, capable of being limited to him until bankruptcy.

Then the question arises as to section 3 of the Married Women's Property Act, 1882. That section provides that "any money or other estate of the wife, lent or entrusted by her to her husband for the purpose of any trade or business carried on by him, or otherwise, shall be treated as assets of her husband's estate in case of his bankruptcy, under reservation of the wife's claim to a dividend as a creditor for the amount or value of such money or other estate after, but not before all claims of the other creditors of the husband for valuable consideration in money or money's worth have been satisfied."

It was decided in 1887 by Mr. Justice KAY, in Ex parte Tidswell (2), that this section only applies where money or other estate of the wife is lent or entrusted to the husband for the purpose of his trade or business. In Alexander v. Barnhill (33), decided in 1888, the ViceChancellor expressed a contrary opinion, but Ex parte Tidswell (2), was not cited, and the observations of the learned Judge appear to

(33) 21 L. R. Ir. 511.

be unnecessary to the decision of the case before him. I have been unable to find any subsequent authority bearing on the point, and although in Ex parte Tidswell (2), the learned Judge appears to have found great difficulty in coming to the conclusion at which he ultimately arrived, I consider myself bound by that authority. Inasmuch as the fund here in question was not lent or entrusted to the husband for the purpose of his trade or business, the section does not assist the plaintiff. But I desire to point out another difficulty in his way. No doubt here part of the separate estate was at one time lent or entrusted to the husband, but it ceased so to be on the execution of the settlement of 1884, and became then entrusted to the trustees of the settlement. If, as I have held, this settlement is not open to objection under the provisions of the Bankruptcy Act, it is difficult to see that the particular transaction falls within section 3 of the Married Women's Property Act, 1882. Alexander v. Barnhill (33), to which I have referred, is an authority that that section does not extend to or affect every kind of dealing between husband and wife.

Therefore the plaintiff's case fails to the extent of the 35,032 Whether the property of the husband was of greater value rupees. than that does not appear. If the plaintiff desires it, he can take an enquiry at his own risk as to that value. The plaintiff must bear the costs of the action down to the present time.

Solicitors Clement Cheese & Green, for the Plaintiff.

Nash, Field & Co., for Stuckey, Son & Pope, Brighton, for the Defendant.

A. W. C.

IN RE BRYANT, EX PARTE BRYANT.

1895, January 18, 19. Lord ESHER, M.R., & LOPES & RIGBY, L.JJ. Bankruptcy-Discharge of Bankrupt-Suspension-Undue Preference-Bankruptcy Act, 1890 (53 & 54 Vict. c. 71), s. 8, subss. 2, 3 (i).

A debtor, whose assets were sufficient to pay in full all his private creditors, paid some of them in full when he was insolvent, and within three months of a receiving order being made against him. He was also liable for the joint debts of a firm of which he had until recently been a member, and for a large sum due from him under the partnership agreement to the representatives of his deceased partner :

Held, that he had been guilty of an "undue preference " within the meaning of section 8 of the Bankruptcy Act, 1890, so as to justify the suspension of his discharge. The private creditors might, but they would not necessarily, have priority in an administration in bankruptcy, as the representatives of the deceased partner could, by paying off the joint debts, acquire the right to come in and compete with them.

THIS was an appeal on behalf of the bankrupt against an order of Mr. Registrar Giffard, made on 13 December, 1894, suspending his discharge for two years, on the ground that he had been guilty of an undue preference within the meaning of section 8, subsection 3 (i.) of the Bankruptcy Act, 1890.

The debtor, in partnership with one King, formerly carried on the business of a tanner in Bermondsey and elsewhere. King died in 1893, and by the terms of the partnership agreement the debtor became liable to pay out the capital which his deceased partner had put into the business, amounting to about 7,8001. This he was required to do by King's representatives, and being unable to meet the pressure which they brought to bear upon him he presented his petition to the Court. A dividend of 15s. in the £ had been declared, and it was expected that there would be a further dividend of from 1s. 6d. to 2s. in the £. The bankrupt's discharge however, was opposed on the ground that he had been guilty of an undue preference within three months preceding the date of the receiving order when unable to pay his debts as they became due. It was proved that within that time the debtor had paid certain of his own private creditors in full. His assets were then sufficient pay all such creditors in full, but he was liable also for joint

to