without incurring the risk of their passing to his assignees in the event of a bankruptcy; and that he cannot prevent that effect by introducing into the deed a clause of redemise to the mortgagor. That, I think, may fairly be inferred to be the principle upon which the cases of Freshney v. Carrick and Hornsby v. Miller were decided. But the case last referred to by my Brother Willes, Bryson v. Wylie, is directly in point, and is altogether undistinguishable from the present both in its facts and in principle. It shows that the law will not allow this provision of the Bankrupt Act to be defeated by this sort of contrivance. And in this there is plainly good sense, because where the mortgagee might at any time repossess himself of the goods upon giving twenty-four hours' notice, and does not choose to avail himself of that power, the goods are in substance in the possession of the bankrupt with the consent and permission of the true owner. And it is clear that such a case involves the very mischief which is pointed at by the 125th section of the Bankrupt Act, viz. the [*679 permitting the bankrupt to hold out a false and delusive credit to the world.

WILLES, J.—I am of the same opinion. This case has been argued with much ingenuity. Mr. Macnamara has endeavoured to prove that there was no real owner here, as contradistinguished from the reputed owner, by whose consent and permission the goods were in the possession, order, and disposition of the bankrupt at the time of his bankruptcy. But the true meaning of the argument is, that there could be no consent of the real owner, because a man cannot be said to consent who has not the power of dissenting. Taking the deed as it stands, the creditor in a certain sense had not the power to dissent from the possession being in the mortgagor: that is, unless he knew for certain twenty-four hours before that there would be an act of bankruptcy, he had no opportunity of exercising the power given to him by the deed. But he had all the time from the execution of the bill of sale to within twenty four hours of the bankruptcy to acquire possession of the goods by giving notice. It is, however, too late now to contend that a mortgagee of chattels who redemises them to the mortgagor is not to be taken to be the true owner within the reputed ownership clauses of the various Bankrupt Acts from the 21 Jac. 1, c. 19, downwards. That question was settled by Lord Mansfield and Mr. Justice Buller, after an argument by Lord Ellenborough on the one side, and Mr. Baron Wood on the other (both. then at the bar), in Bryson . Wylie, 1 B. & P. 83 n., and by Lord Chief Justice Eyre in Lingham v. Biggs, 1 B. & P. 82: and it is quite too late now to attempt any reconsideration of the matter. These cases are *cited in the text-books on the law of bankruptcy of the present day as [*680 subsisting authorities.(a) They also show this, that it is indifferent whether the acquisition of the goods and the redemise are one transaction or are effected by different instruments.

KEATING, J.-I am of the same opinion. The authorities clearly show, that, to give effect to a redemise of this sort, would be to defeat entirely the reputed ownership clause in the Bankrupt Act. That

(a) See Cook's Bankruptcy Law 362; Archbold's Bankruptcy Law, 9th ed., by Flather, 220; Shelford's Bankruptcy Law 250, 258, 262.

was the ground upon which the cases referred to by my Brother Willes were decided.

BYLES, J., not having heard the whole of the argument, expressed no opinion. Judgment for the defendant.

*681]

*GOSLIN v. CLARK. June 26.

A decree of dissolution of marriage by the Divorce Court, on the ground of adultery, is no answer to an action by the wife's trustee upon a covenant by the husband to pay her an annuity, contained in a deed of separation which recites the wife's acknowledgment of the adultery, which was afterwards made the foundation of the suit in the Divorce Court.

THE declaration stated that the defendant by deed covenanted with the plaintiff that he the defendant, his executors or administrators, or some or one of them, should and would from time to time, yearly and every year during the natural life of one Ann Elizabeth Clark, well and truly pay or cause to be paid unto the said Ann Elizabeth Clark, her executors, administrators, or assigns, one annuity or clear yearly sum of 1007. of lawful money current in Great Britain, by equal halfyearly payments on the 9th of November and the 9th of May in every year, without any deduction or abatement on any account whatsoever, and should and would make the first half-yearly payment thereof on the 9th of November, 1852: Provided always, that, if the said Ann Elizabeth Clark, or any person or persons with her privity or on her behalf, should molest or annoy, or cause any molestation or annoyance to, the defendant or any of his relations or friends, either by personal communication or by letter, or otherwise, or if the said Ann Elizabeth Clark should at any time thereafter have illicit intercourse with any person or persons, or should not live or conduct herself as a chaste and modest woman ought to do, or if the said Ann Elizabeth Clark should encumber or assign the growing payments of the said annuity, or do any act, matter, or thing whatsoever whereby or in consequence of which, or whether by her own act or the act or operation of law, she should be deprived of or cease to be entitled to the actual and beneficial receipt and enjoyment of the said annuity, then and in either of the said cases, and thenceforth, the said annuity or yearly sum of 100l. should cease and be determined in like manner in all *682] respects and to all intents and purposes *as if the said Ann Elizabeth Clark had actually departed this life: Provided also, that, if the defendant should, in manner in the said deed more particularly mentioned, purchase and transfer into the names of such trustees as therein are specified such three per cent. Consolidated or three per cent. Reduced Annuities as therein mentioned, and cause such declaration as therein mentioned to be executed, or if the defendant should at any time thereafter pay to the said Ann Elizabeth Clark the sum of 1500%., then and in any or either of the said cases the said covenant should cease and determine: Averment, that, although the said Ann Elizabeth Clark was still living, and all conditions precedent were performed and fulfilled by the plaintiff and the said Ann Elizabeth Clark respectively, and all things happened and were done,

and all times elapsed, necessary to entitle the said Ann Elizabeth Clark to the said annuity, and the plaintiff to a performance of the said covenant of the defendant, which still remained in full force, and to maintain this action for the breach thereof thereinafter alleged, and nothing was done or happened to disentitle the said Ann Elizabeth Clark to the said annuity, or the plaintiff to such performance as aforesaid, or from maintaining this suit,-Yet the defendant made default in payment to the said Ann Elizabeth Clark of one of the said half-yearly instalments of the said annuity, and 501., being the amount of the said half-yearly payment, remained and was due and unpaid. And the plaintiff claimed 1007.

The defendant,-for a defence on equitable grounds,-said that the said deed in the declaration mentioned was and is in the words and figures following, that is to say,-"This indenture, made the 30th of June, 1852, between Frederick James Clark, of, &c., of the first part, Ann Elizabeth Clark, the wife of the said *Frederick James [*683. Clark, of the second part, John Goodrick Goslin, &c., the father of the said Ann Elizabeth Clark, of the third part: Whereas, the said Frederick James Clark hath lately discovered that the said Ann. Elizabeth Clark, his wife, hath been, as she doth hereby admit, guiltyof adultery with J. S., and he hath therefore separated himself from her and determined to put an end to all intercourse between them for the future: And whereas, for the purpose of making some provision for the support and maintenance of the said Ann Elizabeth Clark, the said Frederick James Clark hath determined to allow her an annuity or yearly sum of 1007. during her life, upon the terms hereafter expressed, and for that purpose, and in consideration of the covenant hereinafter contained on the part of the said John Goodrick Goslin to indemnify him from the future debts and liabilities of the said Ann. Elizabeth Clark, he hath agreed to enter into the covenant hereinafter contained: Now this indenture witnesseth, that, for the purpose of carrying his said recited determination into effect, and for and in consideration of the premises, he the said Frederick James Clark doth hereby, for himself, his heirs, executors, and administrators, covenant and agree with the said John Goodrick Goslin, his executors, administrators, and assigns, that he the said Frederick James Clark, his executors or administrators, or some or one of them, shall and will from time to time, yearly and every year during the natural life of the said Ann Elizabeth Clark, well and truly pay or cause to be paid unto the said Ann Elizabeth Clark, her executors, administrators, or assigns, one annuity or clear yearly sum of 1007. of lawful money current in Great Britain, by equal half-yearly payments, on the 9th of November and the 9th of May in every year, without any deduc tion or abatement on any account whatsoever, and *shall and [*684 will make the first half-yearly payment thereof on the 9th of November now next ensuing: Provided always, that, if the said Ann Elizabeth Clark, or any person or persons with her privity or on her behalf, shall molest or annoy, or cause any mole station or annoyance to the said Frederick James Clark or any of his relations or friends, either by personal communication or by letters, or otherwise, or if the said Ann Elizabeth Clark shall at any time hereafter have illicit intercourse with any person or persons, or shall not live or conduct C. B. N. S., VOL. XII.-26

herself as a chaste and modest woman ought to do, or if the said Ann Elizabeth Clark shall charge, encumber, or assign the growing payments of the said annuity, or do any act, matter, or thing whatsoever whereby or in consequence of which, and whether by her own act or the act or operation of the law, she shall be deprived of or cease to be entitled to the actual and beneficial receipt and enjoyment of the said annuity, then and in either of the said cases, and thenceforth, the said annuity or yearly sum of 1007. shall cease and be determined, in like manner in all respects and to all intents and purposes as if the said Ann Elizabeth Clark had actually departed this life: And, for the considerations aforesaid, the said John Goodrick Goslin doth hereby, for himself, his heirs, executors, and administrators, covenant and agree with the said Frederick James Clark, his executors and administrators, that the said Ann Elizabeth Clark shall not, nor shall any person or persons on her behalf or with her consent, at any time or times hereafter commence or prosecute any suit or suits in any Court or. Courts whatsoever to enforce the said Frederick James Clark to cohabit with her or to compel him to make her any allowance for alimony or maintenance beyond the provision hereby made for her; and, further, that he the *said John *685] Goodrick Goslin, his heirs, executors, or administrators, shall and will from time to time and at all times for ever hereafter save, defend, keep harmless, and indemnified the said Frederick James Clark, his heirs, executors, and administrators, and every of them, and his, their, and every of their estate and effects whatsoever, of, from, and against all and every debt and debts which shall or may be contracted by the said Ann Elizabeth Clark on any account or pretence whatsoever, and of and from all actions, suits, claims, and demands whatsoever on account of the same, or any part thereof: Provided always, and it is hereby expressly agreed and declared, that, if the said Frederick James Clark shall at any time or times hereafter be obliged to pay, and shall actually pay or discharge, any debts or liabilities which the said Ann Elizabeth Clark, his wife, shall at any time or times hereafter contract with any person or persons, then the said John Goodrick Goslin shall and will repay or make good to the said Frederick James Clark, his executors, administrators, and assigns, all and every the sum and sums of money which he or they shall so pay as aforesaid on account of any such debts or liabilities as aforesaid, together with all such costs, charges, damages, and expenses as he or they shall incur or sustain on account thereof: Provided always, that, if the said Frederick James Clark, his heirs, executors, or administrators, shall at any time during the continuance of the said annuity of 1007. purchase in the name of any two or more trustees of his or their own nomination a government life-annuity of equal amount; or shall purchase or transfer, or cause to be purchased or transferred, unto or into the names of such two or more trustees as aforesaid a sum of three per cent. Consolidated or three per cent.

Reduced Annuities, the dividends or income of which shall be

*686] *sufficient to answer such annuity, and shall at his or their own

costs and charges cause a declaration of the trusts of the government life-annuity so to be purchased, or of the stocks so to be purchased or transferred, as aforesaid, to be executed by such trustees as aforesaid, for securing to the said Ann Elizabeth Clark the said annuity for the

same term or period, and to determine in the same manner and in the same event or events as the said annuity is to determine as aforesaid, and, subject thereto, upon trust for him the said Frederick James Clark, his heirs, executors, administrators, or assigns; or if the said Frederick James Clark, his heirs, executors, or administrators, shall at any time or times hereafter pay to the said Ann Elizabeth Clark the sum of 15007. sterling, then also, and in any or either of the said cases, the said covenant shall cease and determine: In witness whereof, the said parties to these presents have hereunto set their hands and seals the day and year first above written:" Averment, that, after the making of the said deed, and before any of the said half-yearly instalments of the said annuity became due or payable under or by virtue of the said deed, the said marriage between the said Ann Elizabeth Clark and the defendant was, by reason of adultery committed by her whilst she was the wife of the defendant, absolutely dissolved according to law, to wit, by a decree final of Her Majesty's Court of Probate, duly pronounced in that behalf, whereof the plaintiff had due notice

before the commencement of this suit.

Replication, that the said supposed adultery in the concluding part of the defendant's plea mentioned, was and is the said adultery in the said deed recited to have been committed with the said J. S., and that the same was committed before the making of the said deed, and not afterwards; and that the said *marriage was dissolved by [*687 reason of the said adultery so recited and committed as aforesaid, and not otherwise, and not by reason of any adultery committed after the making of the said deed.

The plaintiff also demurred to the plea, the ground of demurrer stated in the margin being, "that the plea does not show the adultery to have been subsequent to the deed, and that the dissolution of the marriage is immaterial."

The defendant demurred to the replication, the ground of demurrer stated in the margin being, "that the fact of the dissolution of the marriage discharged the husband from further obligation under his covenant, whether the act of adultery was antecedent or subsequent to the deed declared on." Joinder.

Joyce (with whom was Lucius Kelly), for the plaintiff.(a)—The (a) The points marked for argument on the part of the plaintiff were as follows:"1. That the plea does not show the adultery to have been subsequent to the deed, and is therefore bad:

"2. That, if the adultery was subsequent, the dissolution of the marriage is immaterial: "3. That, on the state of facts as shown in the plea, an absolute and unconditional injunction would not be granted in equity, as the consideration for the deed is at all events partly executed:

"4. That the state of facts disclosed in the plea would not induce the Court of Chancery to control the plaintiff's legal right, as, something having been done by the plaintiff under the deed, the Court could not put the parties in the same relative position as they were in before the deed was executed:

"5. That, the demurrer to the replication admitting that the divorce proceeded on the adultery recited in the deed, the defendant must have been aware when he executed the instrument that a divorce might at any time afterwards have been procured by him, and his liability to his wife's debts determined: therefore, if there was no consideration to support the covenant, it must be taken that the defendant, having full knowledge that he was in a position to obtain bis divorce, intended to create a voluntary trust in favour of the wife:

"6. That there is no rule in equity different from that at law, upon the defence raised in the plea: