It has been said by the elementary writers,* that the statute of 13 Eliz. does not extend to voluntary settle

Validity is never given in England to a settlement, where the party was largely indebted at the time, and subsequent creditors have applied for relief. If the deed be set aside as fraudulent against creditors, subsequent creditors are let in. Richardson v. Smallwood, 1 Jacob's Rep. 552. Mr. Justice Story, in his Commentariss on Equity Jurisprudence, p. 351, draws the conclusion as to the opinion of tho master of the rolls in the case last cited, that indebtedness at the time was a circumstance presumptive of a frandulent intent. This learned commentator has examined the authorities on the question, (Com. p. 343—360,) very critically, and he comes to the conclusion, that the doctrine in the case of Reade v. Livingston is strictissimi juris; and he evidently settles down upon the conclusion under the statute of 13 Eliz., that mere indebtedness at the time would not per se establish, that a voluntary conveyance was void, even as to existing creditors, unless the other circumstances of the case justly created a presumption of fraud, actual or constructiee, from the condition, state and rank of the parties, and the direct tendency of the coneeyance to impair the rights of creditors. I have no doubt that this is the tendency of the decisions both in England and America, and that the conclusions of fraud are to be left as matters of fact to a common jury. The doctrine in Reade v. Livingston, and of those English chancellors on whom it rested, is as I greatly fear, too stern for the present times. If the creditor's claim, at the time of the voluntary conveyance, rested in unliquidated damages for a tort, which had not been then ascertained, and made certain by a judgment, yet he is entitled to the benefit of his character as a creditor, as against the conveyance. Fox v. Hills, 1 Conn. Rep. 295. Jackson v. Myers, 18 Johns. Rep. 425. In Van Wyck v. Seward, in the court of errors of New-York, in 1837, (18 Wendell, 392. 405,) the free, sound and elevated reflections of Mr. Justice Bronson, on the doctrine in Reade v. Livingston, and in Jackson v. Seward, 5 Cowen, 67, which followed it, are delivered with elegance and strength. He thinks that the presumption of a fraudulent intent may be and ought to be in cases of that kind, an inference of law, and he does not construe the case in 8 Cowen, 406, as contradicting that principle, but concludes that the court had not advanced a

» Atherley on Marriage Settlements, 220. 1 Roberts on Fraudulent Coneeyances, 421, 422. Mr. Justice Story, in his Comm. on Equity Jurisprudence, 361, says, that the English doctrine has at length settled down in favour of the proposition, that in order to make a voluntary conveyance void as to creditors, either existing or subsequent, it is indispensable that it should transfer property which would be liable to be taken in execution for the payment of debts.

ments of property which a creditor could not reach by legal process in case no settlement had been made, such as choses in action, money in the funds, &c.; and therefore that a voluntary *settlement of that spe- *443 cies of property must be good against creditors, even if made by an insolvent debtor. The difficulty of reaching that species of personal property was discussed and considered, in the case of Bayard v. Hoffman."The cases were found to be contradictory, and the question unsettled ; but there appeared to be much good authority and much strong reason for the opinion, that personal property, not tangible by execution at law, could be reached by the assistance of a court of equity. Without such assistance, there would be great temptations to fraudulent alienations; and a debtor under the shelter of it, might convert all his property into stock, and settle it upon his family in defiance of his creditors, and to the utter subversion of justice. In Spader v. Da»is,b the court of

single step towards denying the doctrino of legal fraud, as laid down in Reade v. Livingston.

In noting the vacillating and contradictory decisions on the point of the validity of voluntary gifts and conveyances of property by persons indebted at the time, it is painful to perceive, in so many instances, the tendency to a lax doctrine on the subject. The relaxation goes to destroy conservative principles, and to commit sound, wholesome, and stern rules of law, to the popular disposal and unstable judgment of jurors. The very able decision of the supreme court of North Carolina, in December, 1833, in O'Daniel v. Crawford, 4 Der. N. C. Rep. 197, stands out firmly opposed to this enervating infirmity. It has established by argument and authority, resting on the soundest foundations, the rnle that no voluntary conveyance of property, even to a child, will be upheld to defeat any creditor existing at the time, however small the amount of the demand. It was well observed, that there is not an English case in chancery to sustain the gift in such a case, and this, I think, was fully shown in the review of the cases in Read v. Livingston, mentioned in the text. • 4 Johns. Ch. Rep. 450.

b 5 Ibid. 280. This decision in Spader v. Davis had important influences on the jurisprudence of New-York, and may be considered as the origin and foundation in this country, of the creditors hill, to supply the inefficacy of the execution at law, which has made such a conspicuous figure in the subsequent business and practice in chancery.

chancery assisted a creditor at law to reach personal property which the debtor had previously conveyed away in trust. That case was affirmed upon appeal ;a and the language of the court of errors was, that the court of equity would assist a judgment creditor at law in discovering and reaching personal property which had been placed in other hands; and that it made no difference whether that property consisted of choses in action, or money or stock. This disposition of the courts of equity to lend assistance in such cases, was afterwards checked, by the argument and opinion in Donovan v. Finn,* where the chancellor held, that the doctrine of equitable assistance to a judgment creditor at law, to enable him to reach choses in action of his debtor, was to be restricted to special cases of fraud or trust; and that without some such specific ingredient, the case was not of equitable jurisdiction.0

• 20 Johns. Rep. 554. b 1 Hopkins. Rep. 59.

e The English equity jurisdiction wonld seem not to be carried beyond the doctrine in the case of Donavan v. Finn; (Otley v. Lines, 7 Price's Evch. Rep. 274;) but the N. Y. Revised Statutes, vol. ii. p. 173. sec. 38, have fortunately carried to the full extent the principle declared in Spader v. Davis, and given jurisdiction to the court of chancery to satisfy debts at law, out of debts due to the defendant, or things in action, or property held in trust for him, after a fieri facias at law has been returned nulla bona, and the remedy at law bona fide exhausted. In Tappan v. Evans, II N. H. Rep. 311, the power of the court of chancery to reach choses in action in aid and satisfaction of a judgment at law after the remedy at law has been exhausted, is discussed and established in the clearest manner; and the Assistant Vice Chancellor in Storm v. Waddell, 3 N. Y. Legal Observer, 373, showed also very satisfactorily, that long before the case of Spader v. Davis, it was settled law that an unsatisfied execution creditor had a right to resort to chancery, to compel payment of his judgment debt out of equitable interests and things in action of the judgment debtor. A creditor's bill will lie in chancery to collect a public tax assessed, out of the equitable interests and choses in action of a defendant, on the collector's return of no visible property on which to levy. Supervisors of Albany Co. v. Durant, 9 Paige's Rep. 182. So, in Ohio, Kentucky, Michigan, Georgia, Pennsylvania, Tennessee, Mississippi, and probably in other states, a judgment creditor is authorized, by statute to

•II. Gifts causa mortis have been a subject of very frequent and extensive discussion, in the English courts

seize and sell on execution, or apply for the aid of chancery powers, to reach choses in action, stock, property or money in the hands of third persons, or voluntary assignees, when the debtor has not property sufficient to satisfy the judgment, which can be reached by execution, and the remedy at law has been exhausted. Under that assistance equitable interests and choses in action, and interest in joint stock companies, may be made subject to the payment of judgments at law. Statutes of Ohio, 1831. Act of Tennessee, 1833. Act of Kentucky, February, 1828. Act of Georgia, 1822. Purdon's Dig. 368. 371. 372. Statutes of Connecticut, 1838, p. 65. Hubbard, Id. 28. Wright v. Petrie, 1 Smedes $ M. Miss. Ch. R. 252.295. C. C. U. S. for Michigan, October, 1841, where that court sustained on demurrer a creditor's bill in chancery against choses in action, &c. Freeman v. Michigan State Bank, 1 Walker's Mich. Ch. R. 62. Williams. In New-Hampshire, bank notes may be attached on mesne process, and sold on execution. Spence v. Blaisdell, 1 N. H. Cases, 198. Money may be levied on fieri facias. 1 Bayley's S. C. Rep. 39. 12 Johns. Rep. 220. So, in New-York, bank bills, and other evidences of debt, issued by any monied corporation, or by the government of the United States, and circulated as money ; and in Connecticut all corporate stock, may be levied upon, and sold under execution at law without recourse to chancery. JV. Y. Reeised Statutes, vol. ii. p. 366. Reeised Statutes of Connecticut, 1821. The New-York provision in chancery extends to property and things in action held in trust for the debtor, with the exception of such trusts as haee been created by, and of funds so held in trust proceeding from some other person than the defendant himself. Ibid. p. 174. sec. 39, 39. Vide infra, vol. iv. p. 430. In Kentucky, by statutes of 1821, and 1828, equities of redemption were made subject to sale on execution. In Maryland, equitable estates, are liable to sale under a fi. fa. in the -Same manner that legal estates are. M'Mechen v. Marman, 8 Gill. <J- Johnson, 58. But in North Carolina choses in action cannot be reached by afi.fa. at law, nor by a court of equity. Pool v. Glover, 2 Iredell, 129. Doak v. Bank of the State, Iredell's Rep. for June term, 1846, 337. Nor in New-Jersey can trust estates be sold on execution. The statute of 29 Charles II. ch. 3, on that point has not been adopted in New-Jersey. No equitable interest can be levied on and sold on execution at law. Disborough v. Outcalt, Saltan's N. J. Ch. Rep. 298. In England an equitable interest is not saleable under a fi. fa. Scott v. Scholey, 8. East, 467; nor does a court of equity consider a judgment or execution at law as binding a mere equitable interest. See Bryant v. Perry, 1 Johns. Ch. Rep. 56. Hendricks v. Robinson, 2 Ib. 312. Disborough v. Outcalt, ub. sup. In M ercer v. Beale, 4 Leigh's Rep. 207- President Tucker was inclined to the doctrine in Bayard v. Hoffman, 4 Johns. Ch. Rep. 450, that where a of equity. Such gifts are conditional, like legacies; and it is essential to them that the donor make them in his last illness, or in contemplation and expectation of death; and with reference to their effect after his death, they are good notwithstanding a previous will, and if he recovers, the gift becomes void.* The apprehension of death may arise from infirmity, or old age, or from external and anticipated danger.1"

The English law on the subject of this species of gift, is derived wholly from the civil law. Justinian was justly apprehensive of fraud in these gifts, and jealous of the abuse of them, and he required them to be executed in the presence of five witnesses. We have not adopted such precautions; though it has been truly declared, that such donations amount to a revocation pro tanto of written wills; and, not being subject to the forms prescribed for nuncupative wills, they were of a dangerous nature. By the civil law, they were reduced to the similitude of legacies, and made liable to debts, and to pass for nothing, and to be returned, if the donor recovered, or revoked the gift, or if the donee died first.0 It was a disputed point with the Roman civilians, whether donations causa mortis resembled a proper gift or a legacy.

creditor was in pursuit|of his demand, and the debtor transfers his choses in action, stocks, &c., to trustees for his benefit, the creditor wonld be entitled to be assisted in equity. In Georgia an equitable interest, or a distributive share, is not subject to sale on execution. Colvard v. Coxe, Dudley's R. 99.

» Swinb. 18. Drury v. Smith. 1 P. Wms. 404. Blount v. Burrow, I Vesey, jun. 546. Sir L. Shadwell, in Edwards v. Jones, 7 Simons, 325. S. C. 1 Mylne $ Craig, 226. Wells v. Tucker, 3 Binney's Rep. 366. In Nichlar v. Adams, 2 Wharton, 17, it was held not to be indispensable to a valid donatio causa mortis, that it should be made in extremis like a nuncupative will. The Ch. J. defined it to be a conditional gift depending on the contingency of expected death, and that it was defeasable by revocation, or deliverance from the peril. To constitute a donatio mortis causa the circumstances must be such as to show that the donor intended the gift to take effect if he should die shortly afterwards, but that if he should recover, the thing should be restored to him.

» Dig. 39. 6. sec. 3, 4, 5, 6.

Inst. 2. 7. 1. Code, 8. 58. 4.

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