immediate execution was anticipated will not vitiate the sale. In one of the late cases upon the point, it appeared that a tradesman, expecting the execution of a writ issued out of the Court of Chancery for payment of costs of a suit, effected a sale of the whole of his furniture and stock in trade. The only document which passed was a receipt for the purchase-money. A few days after the purchaser had taken possession, a writ was issued, and a suit was brought by the sheriff to decide whether the sale was fraudulent. Kindersley, V.C., said :

"At the present day, whatever fluctuations of opinion there may have been in the courts of this country as to the construction of that statute,' it is not a ground for vitiating a sale that it was made with a view to defeat an intended execution on the goods of the vendor, the subject of the sale, supposing it was in all other respects boná fide. The case of Wood v. Dixie 2 has settled that at law in the most solemn manner, on a motion for a new trial. With respect to the question whether the sale was toná fide, it was at one time attempted to lay down rules that particular things were indelible badges of fraud; but in truth every case must stand upon its own footing, and the Court or jury must consider whether, having regard to all the circumstances, the transaction was a fair one, and intended to pass the property for a good and valuable consideration." "3 And it makes no difference that the sale was of all that the debtor possessed. In Alton v. Harrison, Giffard, L.J., said: “ I have no hesitation in saying that it makes no difference in regard to the statute of Elizabeth, whether the deed deals with the whole, or only a part of the grantor's property. If the deed is bona fide, that is, if it is not a mere cloak for retaining a benefit to the grantor, it is a good deed under the statute of Elizabeth." This dictum was adopted and followed in a later case, where B executed a bill of sale to G of all his property then existing, or afterwards to be acquired, in order to secure an existing debt and future advances. In a similar case, J granted his farming property, which was all he possessed, to his daughters, in consideration of their paying all his debts incurred up to 2 7 Q.B. 892.

4

66

1 13 Eliz. c. 5. 3 Hale v. Metropolitan Saloon Omnibus Co., 28 L.J. Ch. 777; S.C. 4 Drewr. 492; Darvill v. Terry, 30 L.J. Ex. 355; S.C. 6 H. & N. 807. 4 4 Ch. 622, at p. 626.

5 Re Bamford, 12 Ch. D. 314.

that time in connection with working his farm, and maintaining him. The plaintiff, who was his creditor in respect of a transaction unconnected with the farm, sued to set it aside. Fry, J., in affirming the grant, said: "It is obvious that the intent of the statute is not to provide equal distribution of the estate of debtors among their creditors-there are other statutes which have that object, nor is it the intention of the statute to prevent any honest dealing between one man and another, although the result of such dealing may be to delay creditors. And cases have been cited, accordingly, where deeds of this kind have been held good, though the result of them has been that creditors have been not only delayed but excluded." 1

360. The mere fact that a transfer of property is for valuable or sufficient consideration, is not conclusive against its being fraudulent, though it throws a very heavy burden upon those who allege that it is so.2 The question will still be, was it a bond ride transaction, which may be good though it has the effect of delaying or excluding creditors, or was it one which originated from an intention to defeat or hinder just claims? The intention which makes a deed fraudulent must have been the substantial, effectual, or dominating view. It is not necessary that it should have been the sole view. The language of the judges in some cases seems to make it sufficient to show that the intention of the debtor in making the transfer was to defeat, hinder, or delay his creditors. It must be remembered that no deed for a valuable consideration can be void under the statute of Elizabeth, unless it was intended to carry out some fraud, to which the purchaser made himself a party. In general the fraud consists in the whole transaction being unreal. Either it appears to be a sale or mortgage, when it is not, or if it is, as far as actual payment goes, a sale, it is accompanied by some secret trust, which undoes it. In a case of this sort, Baron Rolfe said: "In one sense it may be considered fraudulent for a man to prefer one of his 1 Golden v. Gillam, 20 Ch. D. 389, at 392.

2 Per Lord Mansfield, Cadogan v. Kennett, Cowper, p. 434; per Turner, V.C., Harman v. Richards, 10 Hare, 89.

Re Bird, 23 Ch. D. 695.

Holmes v. Penney, 3 K. & J. 90; per Wood, V.C., p. 99; Thompson v. Webster, 4 Drewr. 628; per Kindersley, V.C., p. 632; Golden v. Gillam, per Fry, J., 28 Ch. D., p. 393.

creditors to the rest, and give him a security which left his other creditors unprovided for. But that is not the sense in which the law understands the term 'fraudulent." The law leaves it open to a debtor to make his own arrangements with his several creditors, and to pay them in such order as he thinks proper. What is meant by an instrument of this kind being fraudulent is, that the parties never intended it to have operation as a real instrument, according to its apparent character and effect." 1 Suppose, however, that a debtor made arrangements to realize all his tangible property, in order to abscond with the proceeds and leave his creditors unpaid, and that a friend, knowing his plan, helped him in it by taking his property off his hands, even at a fair price, this would apparently make the sale void under the statute, and would no doubt be punishable under s. 206, if the object was to defeat justice in any of the ways specified in that section.

361. Indian decisions. The law, as administered in India, seems in accordance with these decisions. Under s. 276 of the Civil P.C., the debtor is free to make any private alienation of his property, until an actual attachment of the property has been made. It has also been repeatedly held that, "where there is a real transaction between the parties for valuable consideration, whether it be by way of sale or mortgage, the transaction is valid even as against a creditor, though the object may have been to defeat an expected execution." And so, "if a man owes another a real debt, and in satisfaction thereof sells to his creditor an equivalent portion of his property, transferring it to the vendee, and thereby extinguishing the debt, the transaction cannot be assailed, though the effect of it is to give the selected creditor a preference." Such transactions, though made with a view to defeat a probable execution, are not void under ss. 23 and 24 of the Contract Act, IX. of 1872, as being forbidden by law, or fraudulent, or involving injury to the property of

1 Eveleigh v. Purssford, 2 M. & R. 541.

2 As to the effect of dealing with property according as the attachment was actually made, or only impending, compare Sundar Dasadh v. Sital Mahto, 28 Cal. 217; Bhagwant Appaji v. Kedari, 25 Bom. 202.

3 Sankarappa v. Kamayya, 3 Mad. H.C. 231; Pullen Chetty v. Ramalinga, 5 Mad. H.C. 368; Ishan Chunder v. Bishn Sirdar, 24 Cal. 825. 4 Suba Bibi v. Balgobind Das, 8 All. 178; Narayana v. Viraraghavan, 22 Mad. 184.

another, or opposed to public policy. They involve no dealing with a man's own property which the law does not allow. "But if the sale or mortgage be only a colourable transaction, or a mere sham, and not intended to confer upon the alleged grantee or mortgagee any beneficial interest in the property, and simply (for the purpose of screening it from execution) to substitute such grantee or mortgagee as nominal owner, in lieu of the real owner (the debtor), and to make such nominal owner nothing more than trustee for the real owner (the debtor), and thus to endeavour to preserve the property for the latter, such a sale or mortgage would be invalid as against the creditor, and he would be entitled to attach and sell the property." It would also undoubtedly be an offence. punishable under s. 206.

In considering whether a transfer is genuine or fraudulent, evidence of various other transfers of property effected by the accused on the same day, and apparently with the same object, viz. that of preventing their being seized in execution of a decree, is admissible under ss. 14 and 15 of the Evidence Act, I. of 1872.3

362. Gifts. The law as regards gifts was laid down as follows by Lord Justice Giffard in Freeman v. Pope. 'If after deducting the property which is the subject of the voluntary settlement, sufficient available assets are not left for the payment of the settlor's debts, then the law infers intent to defraud, and it would be the duty of a judge, in leaving the case to the jury, to tell the jury that they must presume that that was the intent. Again, if at the date of the settlement the person making the settlement was not in a position actually to pay his creditors, the law would infer that he intended, by making the voluntary settlement, to defeat and delay them." Probably a judge in putting a case to the jury under s. 206 ought not to direct them. as a matter of law, that they must convict upon finding the above facts, but that such facts were very strong evidence upon which they might convict, if 1 Rajan Harji v. Ardeshir, 4 Bom. 70.

Tillakchand v. Jitamal, 10 Bom. H.C. 206; Joshua v. Alliance Bank of Simla, 22 Cal. 185; Nana Mansaram v. Rautmal, 22 Bom. 255. See s. 53 of the Transfer of Property Act, IV. of 1882, as to the evidence of fraud.

Reg. v. Vajiram, 16 Bom. 414.

45 Ch. 538, at p. 545, qualifying the too strong terms used by Lord Westbury, C., in Spirett v. Willows, 5 Giff. 49; S.C. 34 L.J. Ch. 365.

there was nothing to explain them away. Debt is the normal condition of many classes of the native community, and with persons in high position the making of considerable gifts in a part of their ordinary expenditure. A man executed a bond in May, 1858, and about a year after the execution. and shortly before suit, he transferred to his wife 25,000 rupees as a gift; and the creditor after decree sued to set aside the gift, and to establish his right to take the securities in execution. The original court found that the gift was a bona fide disposition of the securities, and not a mere blind, or really with the intention of defrauding the plaintiff of the amount of his debt. The civil judge considered that the mere fact of the transfer, after the debt was incurred, and without provision for its payment, was itself a fraud on the plaintiff. The Madras High Court directed an issue as to the specific motives and intent of the debtor. They said: "In the case of a voluntary transfer, the bona fides of it with reference to the intention of the debtorjis the point for consideration. In every such case, we th nk the proper question to be considered is, whether the circumstances in evidence, taken together, lead reasonably to the conclusion that the real motive and intention of the transaction was to deprive the creditor of the means of obtaining payment of his debt from the debtor's property generally. If so, the disposition is fraudulent and void to the extent of the debt due to the creditor by whom it is impeached. No general rule can be laid down as to the nature or extent of the evidence which should be acted upon. Being a question of intention, each case must necessarily be decided on the particular evidence offered in it, as to the acts of the parties and the position in which they stood to each other, the amount of the debt, the means possessed by the debtor, and the other circumstances shown to be connected with the transaction." It seems to me that this would be the proper mode of directing a jury in a prosecution under s. 206, remembering always that more conclusive evidence is necessary to convict a man of a criminal offence based upon fraud, than to upset a transfer which defeats the claim of a creditor.

¶363. In the Madras case it does not appear what amount of property remained to the debtor after the 1 Gnanabai v. Srinivasa Pillai, 4 Mad. H.C. 84, at p. 88; re Lane For (1900), 2 Q.B. 508.