RULING C:S'ES.

BILL OF SALE (OF PERONAL CHATTELS).

No.1. -TWY'S CAE
(STAR CHAlBER, 1601.)
No.2. -COOKSON f. SWIRE
(a L 1884.)
RUE.
B the common law of England, a bargain and sale may
b made of chattels which are capable of physical posses
sion, so as t ps the property t the purchaser either
absolutely or subject to a condition giving the transaction
the efect of a mortgag, without the purchaser carring
away the chattels or taking possession of them.
But wher the transction was not an out and out sale,
but was intended to opr meely as a security or by way
of mortgage, the fact of the chattels being left in the pos
sssion of the original owner was considered to be evidence
t go to the jur of a fraud to defeat creditors.
The legslation by the series of English Acts called the
Bills of Sale Acts was commenced with the object of de
fning the facts which were t give rise to the presumption
of fraud and t make the presumption upon those facts
cnclusive.
In a case not comig within the defnition of the Acts,
the rule of common law prevails; and if the transaction is
b fde the title acqured through it is good.
VOL. v.-1
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0. 1. -T'. C 8.1 ..... 8 b.
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e'.Cu
3 Co. Rep. 8 W 1.($. C. 1 Smith'. L. Ca. 8th ed. I) .
. i,nme,' nf CAattel. -Fu under Statute of 1 S Eli.
[S b] A_ obtd to B. in four hudrd pounds, and to C. in two hudr
jUd big sued i debt by C., pending t writ, maes a set asig
trl al his goos and chattls t B. gnerally, without excpion, in satis
iactlon of his debt, but stl cntinue in paion, and sl some sheep,
and set h mark on other; held that thi wa a frauduent git withi the
IS Eliz. c. 5. 1st. Bcaus the gift wa genera, without exception of h
apel, &c.; the donor contnued in psBion, and used them a h ow;
it wa mae in mt, pnding the writ; the wa a tust btween the par
ties; and the deed contaied an unusual claue, -tat it wa me oona fe,
&. 2nd. That a go cnsideration i not suJcient t tae a out of
te statut We the ded be mae 6fde also.
What conveyaces are fraudulent within the IS E. c. 5, and 2 El. c. 4.
Statuts made i suppreion of fraud to b constued libl y for that
pu.
A conveyance made with & pwer of revoation i frauduent a against
a purchar, though the power b future, or t b exercised with the as nt
of another pron. S i the pwer b artards exnguished by fne, t
defrud a purchaer, t fne is void a t him.
A bnd void in par by the sttut lw, is void i to.
None but oonafde purchasers for a valuable and not inaequat consider
tion, U take advanta of the stat. 27 Eli. c. 4.
In an information by Coke, the Queen's Attrey General, agnst
Twyne of Hampshire, i the Star Chambr, for making and pub
lishing of a fraudulent gift of goods: the case on the stt. of 13
Eliz. cap. 5 was such; Pierce was indebted to Twyne in four hun
dred pounds, and wa indebted also t C. in two hundred pounds.
C. brought an action of debt against Pierce, and pending the writ,
Pierce being possessed of goos and chattls of the value of thre
hundred pounds, in secrt made a generl deed of gift of all his
goods and chattels ral and personal whatsoever t Twyne, in sti
faction of his debt; notwithstanding that Pierce continued in
possession of the said goods, and some of them he sold; and he
shore the sheep, and marked them with his own mark: and after
wards C. had judgment aainst Pierce, and had a fer facas
directed to the Sherf of Southampton, who by force of the said
wt came t make execution of the said goods; but divers perons,
by the command of the said Twyne, did with force rsist the said
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Sherif, clamg them t b the good of the said Twyne by force
of the sad gift; and openly delared by the commandment of
Twne, that it was a good gift, and made on a good and lawful
considertion. And whether this git on the whole mattr was
fudulent and of no efect by the said act of 13 Eliz. or not, was
the question. And it 'as resolved by Sir THOMAS EGERTON, Lord
Kepr of the Grat Seal, and by the Chif Justice POPHAM and
ABR80N, and the whole court of St Chamber, that this gift was
frudulnt, within the statut of 13 Ez. And in this case dvers
pint were resolved:
1st That this gift had the signs and marks of fraud,
e buse the gift i general, without exception of his ap [e 81 a]
pl, or any thing of necessity; for it is commonly said,
pod dlus wr.atu, 'W ge'tUi.
2nd. The donor continued in possession, and used them a his
own; and by ron thereof he taded and trafcked wit others,
and defruded and decived them.
3rd. It wa mae in secret, et dna clantina ",,t aper
8Ba.
4th. It was made pndig the wt
5th. Here was a trust between the parties, for the donor pos
sssd all, and used them as his propr goods, and frud is always
apparelled and clad with a trust, and a trust i the cover of fraud.
6th. The ded
'
contais, that the gft was made honestly, truly,
ad bon4.; e cla'lt 'n1t' sempe inuc""t 8piwmm.
Scondly, it wa resolved, that notwithstnding here was a true
debt due t Twyne, and a good consideration of the gift, yet it was
not within the proviso of the said Act of 13 Eliz., by which it is
provided, that the said Ac shal not extnd to any estte or in-
. trst in lands, &c, gods or chattls made on a good consideration
and OOn.e j for although it is on a true and good consideration,
yet it is not b
.
f, for no gift shall be deemed t be bon4 fde
within the sid proviso which is acompanied with any trust; as
if a man b indebted to fve severl persons, in the several sums
of twenty pounds, and hath goods of the value of twenty punds,
and makes a gift of all his goods to one of them in satisfaction of
h debt, but ther is a tst between them, that the donee shall
del favourbly with him in regard of his poor estat, either t
prmit the donor, or some other for him, or for his beneft, to use
or have possession of them, and is contnted that he shall pay him
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hi debt when he i able; th shall not b clle l4.e wthin
the sad proviso; for the provso sith on a goo considertion,
and bon4.e j s a goo consdertion doth not sufc, if it be not
also bon4.e: and therefor, rader, when any gft shall be t
you in satifaction of a debt, by one who i idebtd t others also ;
lat, Lt it b made in a publc maner, and befor the neighbour,
and not i prvat, for secrcy is a mark of faud. 2nd, Lt the
goods and chattels b appr by goo pople t the ver value,
and tke a gift i partcular i satisfaction of your debt Br, Im
mediatly afrr the gift, tke the possession of them; for continu
ance of the possession in the donor is a sign of trust And know,
reader, that the said words of the proviso, on a god considertion,
and bon4.e, do not extnd t every gift made b .; and
therefore there are two manners of gift on a god considertion,
a consideration of nature or blood, and a valuable considerton.
A to the frst, in the c befor put; if he who is indebted t
fve severl prsons, to each party in twenty pounds, i
[. 81 b] consideration of natral afection, gives all his goods
to his son, or cousin, in that case, forasmuch as oter
should lose their debts, &c., which are things of value, the intent
of the act was, that the considertion in such c should b vau
able; for equity rquires, that such gift, which defeats oters,
should be made on as high and good consideration as the ths
which a thereby defeatd are; and it is to be prsumed, that
the father, if he had not ben indebtd to other, would not have
dspossessed himself of all his goods, and subjectd himself to
his cradle; and therfor it shall be intended, that it was mae to
defeat his crditor: and if consideration of nature or blood should
b I good consideration within this proviso, the statut would
serve for litte or nothing, and no creditor would b sur of his
debt. And as to gifts made bon4 fl, it is to be known, that
every gift made bo?4 f either is on a trust between the paries,
or without any trust; every gft made on a trust is out of this
proviso; for that which is betwixt the donor and donee, called
a trust pr nomen su08l1m, is in truth, as to all the creditor,
a fraud, for they a thereby defeated and defrudtd of their true
and due debts. And every trust is either exprs ed, or implied:
an exprss trust is when in the gift, or upon the gif, the trust
by word or writing is expressed: a trust implied is, when a man
makes a gift without any consideration, or on a considertion of
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natur, or blood only: and therefor, i a m before the stt. of
27 H. VIII. had barained h land for a valuable consideration
t one and his heirs, by whch he was seised t the use of the
baainee; and afterwards the barainor, without a consideration,
enfeofed other, who had no notice of te said barg; i this
ce the law implies a trust and confdence, and they shall be
seied to the u of the baee: 80 in the same case, i the
feofes, i consideration of natur, or blood, had without a valu
able considerton enfeofed their sons, or any of their blood who
had no notice of the frt barain, yet that shall not tll the use
raised on a valuable considertion; for a feofment made only on
consideration of natre or blood, shall not toll an use rised on a
valuable considerton, but shall tll an use raised on cOllsideration
of natu, for both considerations ar in mquali jure, and of one
ad the same nature.
And when a man, being ptly indebtd to sundry persons,
makes a gift to his son, or any of his blood, without consideration,
but only of nature, the law intnds a trust btwixt them, s. that
the done would, in consideration of such gift bing voluntrily and
frely made t him, and also in consideration of natur, relieve his
fther, or cousin, and not see him want who had made such gift to
bim (' 33 H. VL, 33, by Prisot). if the father enfeofs his son and
heir apparnt within age bon4 f, yet the lord shall have the
warship of him: so not. valuable consideration is a good consid
ertion within this proviso; and a gif made bona fe is a
gift made without any trust either expressed or implied: - by [. 82 a]
whch it appear. tbat a a gift made on a good considera-
tion, if it b not also bon4 fe. is not within the proviso, so a gift
made bn4 f. if it be not on a good considertion, is not within
te provio; but it ought to be on a goo consideration, and also
b
n
f
To one who marelled what should be the reason that acts and
sttuts are continually made at every Parliament without inter
mission, and without end, a wise man made a good and short
answer, bt which ar well composed in vere.
ta
Q1I
ritur, ut ct tt maga volumina leg ?
In prmptu U est, crescit in orbe dolus.
And bcause frud and deceit abound in these days more than in
former times, it was resolved in this case by the whole Court, that
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all statutes made aginst faud should be liberally ad benefcially
expounded t supprss te frud. Note, rder, acorng t their
opinions, diver resolutons have ben made.
Between Paune/oot v. BluM, i the Echequer Chambr, Mich.
35 & 36 Eliz the cse wa : Pauncfot beng indictd for rcusancy,
for not comg to divie srvic, aud having an intnt t fe byond
sea, and t defeat the Queen of al that mght accre to her for hi
recusancy or tight, made a gift of all h leases and gos of geat
value, colourd with feigned consideration, ad aftrwads he fed
beyond sea, and aftrwards w outlawed on the same indictment;
and whether this gift should be void to defeat the Queen of her
forfeiture, either by the common law, or by any statut, was the ques
tion: and some conceived that the common law, which abhor all
fraud, would make void this gift as t the Queen; f Mich. 12 &
13 Eliz. Dyer, 295, 4 & 5 P. & M. 160. .nd the stt. of 5Q E III.,
cap. 6, was considerd; but that extnds only i rlief of creditr,
and extends only to such debtors as fee t sanctuaries, or other
privileged places: but some conceived, that the stat. of 3 H. VII.,
cap. 4, extnds to this c. For although the preamble spaks
only of creditors j yet it is prvided by the body of the at gen
erally, that all gifts of goods and chattels made or to be made on
trust t the use of the donor, shall be void and of no efect, but that
i to be intended as to all Itrngers who are t have prjudice by
such gift, but between the paries themselves it stands good: but
it was rsolved by all the Barns, that the stat. 13 E cap. 5, ex
tends to it, for thereby it is enacted and declard, that al feof
ments, gift, gnts, &c, "to delay, hinder, or defrud credtors, and
other, of their just and lawful actions, suits, debt, acounts, dam
ages, penalties, forfeiturs, heriots, mortuares, and rliefs," shall be
void, &c. So that this .ct doth not extend only t creditor, but
to all others who had cause of ation, or suit, or any penalty, or
forfeitur, &c.
[82 b] And it wa resolved, that thi wor . foreitu ..
should not b intnded only of a forfeitur of an obli
tion, rcognizance, or such like (as it was objectd by some, that it
should, in respect that it comes aftr damage and pnalty) but also
to everything which shall by law b forfeited t the King or sub
ject. And therfor if a man, to prevent a forfeitu for felony,
or by outlawry makes a gift of all his goods, and aftrwards i
attainted or outlawed, these goods are forfeitd notwithstnding
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this gift: the same law of Jusant, and so the statute is ex
punded benefcialy t supprss frand. Not well this word
.. delar" in the act of 13 Eli by which the Parliament ex
punded that this wa te common law bfore. Ad accorg
t th rsoluton it was decreed, Hit 36 Eliz in the Exchequer
Chambe.
Mch. 42 & 43 El in the Common Pleas, on evidence t a jury,
btween Sta1 and Bullock, these point wer resolve by the
whole Court on the stat. of 27 Eliz cap. 4 W ALMSLBY, J., said, that
Sir CHRITPHBR WBAY,late C. J. of England, rpored to him, that
he, and all hi companions of the King's Bench were resolved, and
80 dirctd a jury on evidence befor them; that where a man had
conveyed his land to the use of himlf for life, and aftrwars t
the use of dver others of his blood, with a futur power of revoc
tion, as aftr such feast, or aftr the death of such one; and ar
was, and bfor the power of revocation bgan, h, for valuable
consideraton, bargained and sold the land t another and his heirs :
this barain and sale i within the remedy of the said sttute. For
although the statute saith, "the sid fst conveyance not by him
revoked, acording t the power by him reserved," which sem by
the litral sense to be intended of a present power of revoction,
for no revoation can be made by force of a future power unti it
cmes i1 U8j yet it wa held that the intnt of the Act wa, that
such volunt cnveyance which wa originally subject to a power
of revoation, be it i pe1ti or in !wuro, should not stand against
a purhasr bon4 fd for a valuable consideration; and if other con
atruction should be mae, the said Act would serve for little or no
purpose, and it would be no difcult mattr t evade it: so if A. had
rerved t himslf a power of revocation with the asent of B., and
aftrwars A bed and sold the lad to another, this barain
and sale is good, and within the remedy of the said Act; for other
wise the god provision of the Act, by a small addition, and evi
invention, would b defeatd.
And on the same rn it wa adjudged, 88 El in the Common
Ple, between Le and h wife, executrix of one Smith, plantif,
and Mar Co1hi, executrix of Thomas Colshil, defendant, in det
on an obligation of one thousand marks, Rot. 1707 ; the cse was,
Colshi the tsttr had the ofc of the Queen's customer, by let
tr ptnt, t him and his deputies; and by indentur betwen
him and Smith, the testtor of the plaintif, and for si hundred
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[88 a] pounds paid, and one hundrd punds per annum to b
paid during the life of Colshil, made a deputtion of the
said ofce to Smith; and Colshil covenanted with Smith, that if
Colshil should die befor him, that then his executors should rpay
him three hundred pounds. And divers covenant were in the said
indenture concernig the said ofc, and the enjoying of it: and
Colshil was bound to the sad Smith i the said obligaton to per
form the covenants; and the brach was alleged i the non-pay
ment of the said three hundrd pounds, fosmuch as Smith sur
vived Colshil: and although the said cvenat t rpay the thre
hundrd pounds was lawful, yet forsmuch as the rest of the cove
nants were agnst the statut of 5 E. Vr., cp. 16, and if the
addition of a lawful covenant should make the obligation of forc
as to that, the sttut would serve for little or no purpose; for this
cause it wa adjudged, that the obligation was uttrly void.
2nd, It was rsolved, tat if a man hath power of revocation,
and aftrwards, to the intnt to defraud a purchaer, he levies a
fne, or makes a feofment, or other conveyance t a strger, by
which he extinguishes his power, and aftrards barains and
sells the land to another for a valuable consideration, the barainee
shall enjoy the land, for a t him, the fne, feofment, or other
conveyances, by which the condtion was extnct, was void by the
said Act; and so the frst clause, by which all fraudulent and
covinous conveyances are made void a to purchasers, extends t
the lst clause of the Act, r. when he who makes the baain
and sale had power of revocation. ,nd it was said that the sttute
of 27 Eliz. hath made voluntry estates made with power of revoca
tion, a to purchasers, in equal dege with conveyances made by
fraud and covin to defraud purchasers.
Between Upt v. Bastt in trespass, Tn. 37 Eliz. in the Com
mon Pleas, it was adjudged, that if a man makes a lease for years,
by fraud and covin, and aftrwards makes another lease b fe,
but without fne or rnt reserved, that the second lessee should not
avoid the frst lease.
For frst it was agreed, that by the common law an estate made
by fud should be avoided only by him who had a former right,
title, intrest, debt, or demand, as 33 H. VI. a sale in open market
by covin shall not b a right which is more ancient: nor a covin
ous gift shall not defeat execution in respect of a former debt, as it
is agreed in 22 Ass. 72, but he who hath right, title, interst, debt.
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or demand, mor puisne, shal not avoid a gift or estat precedent
by frud by the common lw.
2nd, It w resolved, that no purchaser should avoid a pr
cdent conveynce made by fud and covin, but he who is a pur
chasr for money or other valuable consideration, for although i
the pramble it i said .. for money or other good considertion, "
and liewise in the body of the Act "for money or other good
consideration, " yet these words "good considertion" a to be
intnded only of valuable considerton; and that appears by the
clause which concrs thoe who had power of revoation; for
ther it is said, for money or other good consideration paid, or
given, and this word "paid" i t b rferrd t "money, " ad
.. given" is t b referrd t "good consideration," so the sense is'
for money paid, or other goo consideration given, which
words exclude all considertions of nature or blood, or [. 83 b]
the like, and a to be itnded only of valuable consid-
ertions which may be gven; ad therfore he who makes a pur
chae of land for a valuable cnsideration, is only a purchaser
within ths sttut. And this latter clause doth well expound
tes words "other good considerton" mentioned before in the
pramble and body of te Act
And so it wa resolved, Pasch. 32 El. in a cae rferd out of
the Chancer to the cnsideraton of WINDHAM and PERI, Jus
tices: Joh Neam, plintif, v. Be'mt, &an.t-aw, defend
ant: wher the case wa, Henry Babingon seised in fee of the
mnor of Lit-Chuh i the County of Derby, by indenture 10 Feb
ruary, 8 E covenantd with the Lord Darcy, for the advanc
ment of such heirs male, as well those he ha begot, as those he
should aftrwards beget on the body of Mary, then his wife (sistr
t the sad Lrd Darcy) before the feast of St John Baptist then
next followng, to levy a fne of the said manor t the use of the
said Henr for' his life, and aftrwards to the use of the eldest issue
male of the be of the said Henry and Mary begottn in t,
&0, ad 80 t three issue of their bodies, &0, with te remainder
t hi right heirs. Ad afterwards,8 Maii, ann. 8 El., Henr
Babingtn, by fud and covin, t defeat the said covenant, made
a lease of te said manor for a great number of yeas, t Robert
Heys; and aftrwards levied the fne accordingly: and on con
fernc had with the other justices, it was resolved, that although
te issue w a purchaer, yet he was not a purchaser in vulgar
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10 BILL 01 SAE.
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and common intndment: also consideration of blood, naturl
afection, is a good consideration, but not such a god consideration
which is intnded by the Stat. of 27 El, for a valuble consider
tion is only a good considertion within that Act. In ti c
ANDERSON, C. J., of the Common Pleas, sad, that a man who was
of small understnding, and not able t govern the lands which
descended to him, and being given to rot and disorder, by media
tion of his friends openly conveyed his lands to them, on tst and
confdence that he should tke the profts for h maitnance, ad
that he should not have power to waste and consume the same;
and afterwards, he being seduced by deceitful and covinous prons,
for a small sum of money bargained and sold his land, bing of
a great value: this bargain, although it w for money, w holden
to be out of this sttute; for this Act is made against all fud
and deceit, and doth not help any purhaser, who doth not come
to the land for a good considertion lawfully an(l without fraud or
deceit; and such conveyanc made on trust is void a t him who
purhases the land for a valuable considertion bo'., witout
deceit or cunnig.
And by the judgment of the whole Cour Twyue wa convcted
of fraud, and he and all the others of a riot