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to assign the same to the persons who would be entitled thereto under the statute of distributions, if Lady A had survived Lord A. This deed also contained a covenant by Lord 4. within six months, to make an inventory of the [262] articles, and to deliver a copy to the trustees. No inven

against BAYNTUN.

[263]

tory, however, appeared to have been taken till November, 1803, which was after the plaintiff's execution had come in. The execution of the deeds of April, 1800, was proved by Lord Arundel's general steward; who said, on cross examination, that Lord 4. for two or three years before April, 1800, was in embarrassed circumstances, and his creditors very urgent. That be, the witness, was not made acquainted with the contents of the deeds at the time of their execution. That the first execution at Wardour Castle was brought in in July, 1800, for 12711. &c. at the suit of another creditor, when the trust-deed was shewn to the undersheriff; but the debt being shortly after paid by the witness with Lord Arundel's money, that execution was withdrawn without any inventory having been taken by the sheriff. In that year, and in 1801, several other executions came in, which were satisfied in general by money of Lord Arundel's, paid by the witness. In one or two instances, however, levies were made of farming stock, wine, and other articles not included in the trust-deed. Altogether debts were sa tisfied to the amount of above 4000/. The judgment in question was obtained in Michaelmas, 1802. This witness also said, in answer to a question by the Court, that he did not know of any notice having been given to the trustees of these executions. Another witness, the house steward, proved that he had received the trust-deed from Lady Arundel about the end of June, 1800, and a paper signed by the trustees, authorizing him to keep possession of the goods comprized in that deed on their account; but no inventory was taken to his knowledge of the goods. A clerk of the conveyancer next proved that he was present at the execution of the deeds, and immediately after drew the order from the trustees to keep possession, which he sent to Lord Clifford in Devonshire for his signature; and on its return delivered it to the house steward, with directions to shew the sheriff the deed if he came. The solicitor to Lord Arundel and to the trustees, then proved that he was not

concerned

concerned in his lordship's affairs till the February preceding the execution of the deeds; that he had not been consulted, and knew nothing of the deeds till June or July, 1800, when he immediately gave notice of them to the sheriff, and made them as public as possible. The value of the estates comprized in the deeds were proved to be about Soool. per annum. It appeared that a mortgage for above 50007. had been executed by the trustees under the trust deed to Mr. Vanderclooster, who had sent an execution into Wardour Castle in the year 1801, which was afterwards withdrawn (a). There was also proof of another sum of 20001. having been raised under the trust-deed, of which above 500l. came into the hands of Lord Arundel himself; and it did not appear how it had been applied by him. The remainder of it was applied in discharge of Lord A.'s debts; but it did not appear that any payment had been made till after the action brought.

Lord Ellenborough left the question to the jury upon this evidence, Whether the trust-deeds were a contrivance to defeat Lord Arundel's creditors, and void under the stat. 13 Eliz. c. 5. or, Whether they were a bona fide transaction, according to the distinction taken in the case of Cadogan v. Kennet (b)? and observed upon the several circumstances of dissimilarity between the two cases. His lordship pointed out to the jury the circumstances of the concealment of the contents of the deed of 29th April, 1800, and of the non-existence of an inventory, which, if Lady Arundel's protection had been the object in view, ought to have been taken; but he left it to them upon the whole to say quo animo that deed was exequted; whether substantially for the protection of Lady Arundel, who had purchased the goods for the consideration therein stated; or whether in truth it was intended for the protection of Lord Arundel's property from his creditors. The jury being of opinion that the deeds were fraudulent, found a verdict for the plaintiff.

In Michaelmas term last a rule nisi was obtained for setting aside the verdict and for a new trial, on the grounds, 1st, That the sale was bona fide and valid at common law,

(a) Quere as to another sum of 20001, raised. 04

(b) Comp. 432.

and

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against

BAYNTUN.

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against BAYNTUN.

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and not within the prohibition of the stat. 13 Eliz. c. 5. 2dly, That there was a full and fair consideration for the deed of the 29th of April, 1800; whereby Lord Arundel conveyed the property in question to Lady A.'s trustees: and that neither the present embarrassment of Lord Arundel, nor the want of notoriety of the execution of the deeds, nor the neglect of having an inventory of the goods, nor the fact of Lord Arundel's continuing in the use and enjoyment of the goods after the conveyance, nor the subsequent appro priation to his use of part of the trust-money raised under the deeds, were either singly or collectively sufficient badges of fraud to avoid the conveyance.

Garrow, Park, and Wigley shewed cause in the same term; and after premising that no objection was made to the direction of the Lord C. J. at the trial in point of law, nor that the question of fraud was properly determinable by the jury, they contended that there was sufficient evidence of fraud to warrant the conclusion which they had drawn. The true question is, Whether the deeds were executed bona fide, and for a sufficient valuable consideration, for the purpose of creating an available fund for the payment of Lord Arundel's creditors? or, Whether they were illusory, and a mere contrivance to put his effects out of the reach of his general creditors for an unavailable or inadequate consider ation? This question was properly left to the jury in the terms used by Lord Mansfield in Godogan v. Kennet (a); and in drawing a conclusion of fraud, all parts of the transaction are to be taken together, and the corpus delicti may be inferred from the whole, though each fact taken separately might not warrant the conclusion. 1st, The consideration for the conveyance was inadequate, and contrived for the purpose of diminishing the funds of Lord 4. which were before amenable to the execution of his creditors. It was made after marriage, and not before, as in Cadogan v. Kennet, Jarman v. Woolloton (b), and Haselington v. Gill (c); in which latter case Lord Mansfield said, That a conveyance after marriage (i. e. to trustees for the benefit of the donor's wife) is totally void as ugainst creditors, for want of consideration. Lord Arundel gave up his life interest in

(a) Cowp. 432. (b) 3 Term Rep. 618.

(c) 3 Term 620, note.

an

an estate of at least 3000/ a year; which at six years purchase, was worth 18,0007: and all his furniture, pictures, &c. in Wardour Castle, admitted to be worth not less than 8000l. more, and probably a much greater sum, if a proper valua tion had been made, as is recommended to be done in Twyne's case (d); and all this in consideration only of 12,000l. which was to be raised by the trustees for the benefit of the creditors; and of 1300l. for which he was before indebted to the settled estates. Prima facie, therefore, the consideration for the conveyance by Lord A. was very indequate; and at least called upon the defendant, who is indemnified by the trus tees, and must defend himself upon their title, to shew either that the 12,000l. was sufficient for the discharge of all Lord 4.'s creditors; or that he had other property out of settlement and unincumbered, sufficient for that purpose. As the case stands at present, there seems to have been no good reason for including the personal property in the con veyance, as there was in Cadogan v. Kennet, where the realty was found not to be sufficient of itself for the purpose of the settlement; but the only object in doing so here, seems to have been to dispossess Lord A. of all his visible property, in order to preserve it from his creditors. But further: Even supposing that 12,000l. would have been a a good cousideration for the conveyance, as against creditors, if it had been an available fund for them to resort to, yet it was not so; for it depends upon the appointment of Lord 4. who may appoint the whole to some favourite creditors, leaving the rest without remedy, as is attempted to be done with respect to the present plaintiff. No time is limited for his appointment; and there is no instance of the Court of Chancery compelling the execution of such a power in favour of any particular creditor; for that would be to defeat the preference, which it was one object of the power to secure. The power too is only to be exercised by Lord 4. personally; and in case of his death it does not appear that the trustees could be compelled to raise and distribute the money. But supposing that Court could. compel Lord 4..to appoint, or the trustees, after his death, to distribute the money amongst the creditors, at any rate,

(a) 3 Rep. 81.

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against BAYNTUN.

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it

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it would only be done by giving notice to all the creditors to come in, and by dividing the fund amongst them in rateable proportions; which would necessarily delay each parBAYNTUN. ticular creditor, and put him in a worse situation than if he could help himself at once, by using due diligence at com. mon law. There was therefore no adequate consideration, with respect to creditors, for the property conveyed by Lord 4. to the trustees. 2dly, Such a deed, which would be considered as fraudulent and void, and an act of bankruptcy in a trader, within the bankrupt laws, is also void within the stat. 13 Eliz. c. 5, being made to delay or defraud creditors of their just debts. It was said indeed, That Lord 4. might have sold his property to any person, and converted the money to his own use; and if so, the trustees of Lady A. had as good right to be purchasers, for a valuable consideration, as any other: but if a vendee know of the purpose and purchase for the sake of aiding the debtor to defeat creditors, the sale is void, and no property passes as against them; for a sale to be binding must be bona fide, as well as on good consideration, in order to bring it within the proviso of the 6th section of the act, according to Tayne's case (a), Cadogan v. Kennet (b). In Russell v. Hammond (c), where the father being largely indebted at the time, settled certain leasehold estates upon his son and his son's wife, in consideration of the marriage already had, and a certain sum paid, reserving an annuity to himself and his wife for life, tantamount to the value of the rents,-this was holden to be clearly void, as against creditors within the statute. Then the badges of fraud in this case are many and strong:1st, The previous embarrassment of Lord d. admitted by the very deed of the 29th of April, 1800, which recites the urgency of his creditors, and proved by the frequent execu tions against his property about that period: and though there were no existing suit of any creditor at the time of the conveyance executed, as in Twyne's case, yet it is sufficient that there were co-existing debts, which it was the object of the conveyance to delay or defeat; which brings the case equally within the words and meaning of the statute. In Russell v. Hammond, Lord Hardwicke said, That he had

268]

(a) Rep. St.

(b) Cowp. 434

(c) 1 Atk. 13, 16. hardly