called to that absence, do not make a voluntary settlement invalid. They are merely circumstances to be considered in deciding on the validity of the settlement. The true rule is that the absence of a power of revocation is a circumstance to be taken into account, and is of more or less weight according to the other circumstances of each case (t). The absence of a power of revocation in a voluntary deed not impeached on the ground of undue influence is material when it appears that the settlor did not intend to make an irrevocable settlement, or when the settlement is of such a nature or was made under such circumstances as to be unreasonable and improvident, unless guarded by a power of revocation (u). If there are substantial questions of incapacity and undue influence bond fide raised, and the Judge is unable to arrive at a favourable conclusion upon them, he cannot thereupon proceed to treat the absence of a power of revocation upon its own merits, as if those other questions had not been raised at all. Without it the grounds of special impeachment might be insufficient. Without these it might itself be insufficient. Yet the two in combination might be fatal to the deed (x). In Philipps v. Mullings (y), where it was the object of the settlor to preserve his property from being wasted by himself, and in Proctor v. Gregg (z), where it was the object of the settlor to protect himself against the importunity of his relations, it was held that the absence of a power of revocation was sufficiently accounted for and the deed was upheld. So also in Long v. Donegan (a), where it appeared that the settlor had a strong dislike and fear of some of his relations, and wished to cut them off from his inheritance, the deed was upheld though it contained no power of revocation. In Henshall v. Fereday (b), however, where a lady on the suggestion of her brother executed a deed which had been prepared by a solicitor on his instructions, and the solicitor (t) Hall v. Hall, 8 Ch. 430 ; Henry v. Armstrong, 18 Ch. D. 668. (u) Hall v. Hall, 8 Ch. 440, per Lord Selborne. (x) Armstrong v. Armstrong, I. R. 8 Eq. 45. (y) 7 Ch. 244. Chap. III. Chap. III. never saw the settlor or performed any duty at all towards her, the deed was set aside on the ground that it contained no power of revocation. Where a lady understood what she was doing, and that it was a final and irrevocable settlement of her property, and the settlement was reasonable and just, it was upheld, though the deed did not exactly correspond with the instructions, but was read over to and executed by her. The fact that she may have afterwards burned the deed and expressed her satisfaction that she had got rid of it is of no weight. This fact may prove change of mind but does not prove that at the time of the execution of the deed her mind was other than therein expressed (c). Voluntary limitations in a settlement come under the general rule as to undue influence in obtaining the gift (d). But if there is no ground for impeaching the settlement, either on the ground of undue influence or on the ground of the absence of a power of revocation, the provisions of a marriage settlement in favour of volunteers cannot be revoked (e). (c) Hall v. Hall, 8 Ch. 437. (e) Paul v. Paul, 20 Ch. D. 742. CHAPTER IV. FRAUD UPON THIRD PARTIES. ANOTHER class of frauds is where a contract or other act is substantially a fraud upon the rights, interests, or intentions of third parties. The general rule is that particular persons in contracts and other acts shall not only transact bond fide between themselves, but shall not transact mala fide in respect to other persons who stand in such a relation to either as to be affected by the contract or the consequences of it (a). Collusion between two persons to the prejudice or loss of a third is in the eye of the Court the same as a fraud (b). Chap. IV. SECTION 1.-FRAUD UPON CREDITORS. A class of frauds coming under the head of fraud upon third parties embraces all those agreements or other acts of parties which tend to delay, deceive, or defraud creditors. Transactions in fraud of creditors are voidable at common law (c), but the legislature, with the view of affirming the rule and carrying the principles of the common law more fully into effect, declared by Statutes 50 Edw. 3, c. 6, and 3 Hen. 7, c. 4, all fraudulent gifts of goods and chattels in trust for the donor and to defraud creditors to be void. The Statute 13 Eliz. c. 5, perpetuated by 29 Eliz. c. 5, after reciting that feoffments, gifts, grants, alienations, conveyances, (a) 2 Ves. 156, 157, per Lord Hardwicke; Wallis v. Duke of Portland, 3 Ves. 502. (b) Garth v. Cotton, 1 Dick. 217. Copis v. Middleton, 2 Madd. 428; Sect. 1. Chap. IV. bonds, suits, judgments, and executions, have been contrived of malice, fraud, covin, collusion, &c., to delay, hinder, or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, &c., proceeds to declare and enact that every feoffment, &c., of lands, tenements, hereditaments, goods, and chattels, or any of them, by writing or otherwise, and all and every bond, suit, judgment, and execution made for any intent and purpose, before declared and expressed, shall be, as against that person or persons, his or their heirs, successors, executors, &c., whose actions, suits, &c., are or might be in any wise disturbed, hindered, delayed, or defrauded, utterly void (d). Estates, however, or interests in lands or chattels, &c., conveyed or assured bond fide and on good consideration without notice to the person who is dealing with the person who afterwards becomes insolvent of any fraud or collusion, are excepted from the operation of the Statute (e). As between the parties themselves and all persons claiming under them in privity of estate, voluntary conveyances are binding (f); but in so far as they have the effect of delaying, defrauding, or deceiving creditors, voluntary conveyances are not bona fide, and are void as against creditors to the extent to which it may be necessary to deal with the property to their satisfaction. To this extent and to this extent only, they will be treated as if they had not been made. To every other purpose they are good (g), unless the transaction is so tainted with fraud as to necessitate its avoidance in toto so as to work justice between the parties (h). (d) Tarleton v. Liddell, 17 Q. B. 391. (e) 13 Eliz. c. 5, s. 6. See Tarleton v. Liddell, 17 Q. B. 390; Thompson v. Webster, 7 Jur. N. S. 531, 4 Deg. & S. 538; Alton v. Harrison, 4 Ch. 622; Golden v. Gillam, 20 Ch. D. 392. (f) Petre v. Espinasse, 2 M. & K. 496; Robinson v. M'Donnell, 5 B. & Ald. 134; French v. French, 6 D. M. & G. 95; Olliver v. King, 8 D. M. & G. 110. A sham transfer for the purpose of defrauding creditors will not pass the property in goods even as between the debtor and his confederate. Bowes v. Foster, 2 H. & N. 779. (g) Curtis v. Price, 12 Ves. 103; Worsley v. De Mattos, 1 Burr. 474 ; Croker v. Martin, 1 Bligh, N. S. 573; Bessey v. Windham, 6 Q. B. 166; French v. French, 6 D. M. & G. 95; Neale v. Day, 28 L. J. Ch. 45. (h) Tarleton v. Liddell, 17 Q. B. 418, 419. The mere fact of a deed being voluntary is not enough to render it void as against creditors (i). But if at the time a man executes a voluntary settlement he is actually insolvent, the settlement is void as against creditors (k). It is not, however, necessary, in order to invalidate a voluntary settlement, that the settlor should be in a state of insolvency (1). The language of the Act being that any conveyance of property is void against creditors, if it is made to hinder, delay, or defeat creditors, the Court has to decide in each particular case, whether under all the circumstances, it can come to the conclusion that the object of the settlor was to hinder, delay, or defeat creditors (m). "I abstain," said Lord Campbell (n), " from saying what are the particular proofs that are necessary, or from laying down any particular rule as to what amount of evidence, or what proof of consideration or want of consideration, or what evidence of notice or want of notice may be necessary. Those are facts to be inquired into in each particular case." If there is no evidence to show that the settlor, when he executed the instrument, had any intention to defraud, it is immaterial that he may have been embarrassed at the time, and wanted money to meet claims upon him, if there is no reason for saying that he had the slightest notion of doing more than borrowing money to tide over the difficulty. Though there may be circumstances in the case which might lead to the presumption that the settlement was made to defeat creditors, yet when the circumstances come to be explained and established, it may be clear that no such intent existed in the minds of either of the parties to the transaction (o). Although there be no intention to defraud, the question then is whether there is any evidence to show that the settlor knew at the time when the settlement was executed that it was a 99. (i) Holmes v. Penney, 3 K. & J. (k) French v. French, 6 D. M. & G. 101; Freeman v. Pope, 5 Ch. 544; Taylor v. Coenen, 1 Ch. D. 640. (1) Townsend v. Westacott, 2 Beav. 344; Thompson v. Webster, 4 Drew. 632, 7 Jur. N. S. 531, in Dom. Proc. (m) Thompson v. Webster, 4 Drew. (0) Thompson v. Webster, 7 Jur. N. Chap. IV. N |