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MICH. 44 ELIZ. - IN THE STAR-CHAMBER.
(REPORTED 3 COKE, 80.]
What transactions are fraudulent within St. 13 Eliz. c. 5, and
27 Eliz. c. 4.
In an information by Coke, the Queen's Attorney-General, against Twyne of Hampshire, in the Star-Chamber, (a) for making and publishing of a fraudulent gift of goods. The case on the stat. of 13 Eliz. c. 5, was such : Pierce was indebted to Twyne in 4001., and was indebted also to C. in 2001. C. brought an action of debt against Pierce, and pending the writ, Pierce, being possessed of goods and chattels of the value of 3001., in secret made a general deed of gift of all his goods and chattels, real and personal whatsoever, to Twyne, in satisfaction 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 afterwards C. had judgment against Pierce, and had a fieri facias directed to the sheriff of Southampton, who by force of the said writ came to make execution of the said goods; but divers persons, by command of the said Twyne, did with force resist the said sheriff, claiming them to be the goods of the said Twyne by force of the said gift; and openly declared by the commandment of Twyne, that it was a good gift, and made on a good and lawful consideration. And whether this gift, on the whole matter, was fraudulent and of no effect by the said act of (6) 13 Eliz. or not, was the question. And it was resolved by
(a) Moor 638; Lane 44, 45, 47; Co. Lit. 3. b.; 76. a. 290 a.; 3 Keb. 259. See the stat. 27 Eliz. cap. 4.
(6) 5 Co. 60. a. b.; 6 Co. 18. b.; 10 Co. 56 b.; 3 Inst. 152; Co. Lit. 3. b.; 76. a. 290. a. b.; 13 El. c. 5; 2 Leon. 8, 9,
Sir Thomas Egerton, Lord Keeper of the Great Seal, and by the Chief Justices Pophaia and Anderson, and the whole court of Star-Chamber, that this gift was fraudulent, within the statute of 13 Eliz. And in this case divers points were resolved :
1. That this gift had the signs and marks of fraud, because the gift is general; without exception of his (a) apparel, or of anything of necessity; for it is commonly said, quod (6) dolosus versatur in generalibus.
2. The donor continued in possession, and used them as his own; and by reason thereof he traded and trafficked with others, and defrauded and deceived them.
3. It was made in secret, et dona clandestina sunt semper suspiciosa.
4. It was made pending the writ.
5. Here was a trust between the parties, for the donor possessed all, and used them as his proper goods, and fraud is always apparelled and clad with a trust, and trust is the cover of fraud.
6. The deed contains, that the gift was made honestly, truly, and bona fide; et clausulæ inconsueť semper inducunt suspicionem.
Secondly, it was resolved, that notwithstanding here was a true debt due to Twyne, and a good consideration of the gift, yet it was not within the proviso of the said act of 15 Eliz., by which it was provided, that the said act shall not extend to any estate or interest in the lands, &c., goods or chattels, made on a good consideration and bonâ fide ; for, although it is on a true and good consideration, yet it is not bonâ fide, for no gift shall be deemed to be bona fide within the said proviso which is accompanied with any trust. As if a man be indebted to five several persons in the several sums of 201., and hath goods of the value of 201., and makes a gift of all his goods to one of them, in satisfaction of his debt, but there is a trust between them that the donee shall deal (@) favorably with him in regard of his poor estate, either to permit the donor, or some other for 47, 223, 308, 309; 3 Leon. 57; Latch. 638; Doct. pla. 200; Yely. 196, 197; 1 222; 2 Rol. Rep. 493; Palm. 413; Cr. Brownl. 111; Co. Ent. 162. El. 233, 234, 645, 810; Cro. Jac. 270, (a) Godb. 398. 271; Dy. 295, pl. 17, 351, pl. 23; 2 (b) 2 Bulstr. 226; 2 Co. 34. a.; 1 Bulst. 226; Rastal, Entries, 207. b.; Roll. Rep. 157; Moor 321. Lane, 47, 103; Hob. 72, 106; Moor (c) Goldsb. 161.
him, or for his benefit, to use or have possession of them, and is contented that he shall pay him his debt when he is able, this shall not be called bona fide within the said proviso; for the proviso saith on a good consideration, and bona fide ; so a good consideration does not suffice, if it be not also bonâ fide. And therefore, reader, when any gift shall be to you in satisfaction of a debt, by one who is indebted to others also : 1. Let it be made in a public manner, and before the neighbors, and not in private, for secrecy is a mark of fraud. 2. Let the goods and chattels be appraised by good people to the very value, and take a gift in particular in satisfaction of your debt. 3. Immediately after the gift, take the possession of them : for continuance of the possession in the donor is the sign of trust. And know, reader, that the said words of the proviso, on a good consideration, and bonâ fide, do not extend to every gift made bona fide ; and, therefore, there are two manner of gifts on a good consideration, scil., consideration of nature of blood, and a valuable consideration (a). As to the first in the case before put; if he who is indebted to five several persons, to each party in 201. in consideration of natural affection gives all his goods to his son, or cousin, in that case, forasmuch as others should lose their debts, &c., which are things of value, the intent of the act was, that the consideration in such cases should be valuable ; for equity requires that such gift, which defeats others, should be made on as high and good consideration as the things which are thereby defeated are; and it is to be presumed that the father, if he had not been indebted to others, would not have dispossessed himself of all his goods, and subjected himself to his cradle ; and therefore it shall be intended, that it was made to defeat his creditors; and if consideration of nature or blood should be a good consideration within this proviso, the statute would serve for little or nothing, and no creditor would be sure of his debt. And as to the gifts made bona fide, it is to be known that every gift made bonâ fide, either is on a trust between the parties, or without any trust; every gift made on a trust is out of this proviso ; for that which is betwixt the donor and donee, called (6) a trust per nomen peciosum, is in truth, as to all the creditors, a fraud, for they are thereby defeated and defrauded of their
(a) Cr. Jac. 127; Palm. 214.
(6) 6 Co. 72. b.
true and due debts. And every trust is either expressed or implied ; an express trust is, when in the gift, or upon the gift, the trust by word or writing is expressed: a trust implied is, when a man makes a gift without any consideration, or on a consideration of nature, or blood only; and therefore, if a man, before the statute of 27 H. 8, had bargained his land for a val. uable consideration to one and his heirs, by which he was seized to the use of the bargainee : and afterwards the bargainor, without a consideration, enfeoffed others (a), who had no notice of the said bargain; in this case the law implies a trust and confidence, and they shall be seized to the use of the bargainee ; so in the same case, if the feoffees, in consideration of nature or blood, and without a valuable consideration, enfeoffed their sons, or any of their blood, who had no notice of the first bargain, yet that shall not toll the use raised on a valuable consideration ; for a feoffment made only on consideration of nature or blood, shall not toll an use raised on a valuable consideration, but shall toll an use raised on consideration of nature, for both considerations are in æquali jure, and of one and the same nature (b).
And when a man, being greatly indebted to sundry persons, makes a gift to his son, or any of his blood, without consideration, but only of nature, the law intends a trust betwixt them, scil., that the donee would, in consideration of such gift being voluntarily and freely made to him, and also in consideration of nature, relieve his father, or cousin, and not see him want who had made such gift to him (c), vide 33 H. 6. 33 by Prisot, if the father enfeoffs his son and heir apparent within age, bona fide, yet the lord shall have the wardship of him : so note, valuable consideration is a good consideration within this proviso; and a gift made bona fide is a gift made without any trust either expressed or implied: by which it appears that as a gift made on a good consideration, if it be not also bona fide, is not within the proviso ; so a gift made bona fide, if it be not on a good consideration, is not within the proviso; but it ought to be on a good consideration, and also bonâ fide.
To one who marvelled what should be the reason that acts and statutes are continually made at every parliament without
intermission, and without end; a wise man made a good and short answer, both which are well composed in verse.
Quæritur, ut crescunt tot magna volumina legis ?
In promptu causa est, crescit in orbe dolus. And because fraud and deceit abound in these days more than in former times, it was resolved in this case by the whole court, that all statutes made against fraud should be liberally and beneficially expounded to suppress the fraud. Note, reader, according to their opinions, divers resolutions have been made.
Between Pauncefoot and Blunt, in the Exchequer-Chamber, Mich. 35 & 36 Eliz. (a), the case was : Pauncefoot being indicted for recusancy, for not coming to divine service, and having an intent to flee beyond sea, and to defeat the Queen of all that might accrue to her for his recusancy or flight, made a gift of all his leases and goods of great value, colored with feigned consideration and afterwards he fled beyond sea, and afterwards was 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 statute, was the question. And some conceived that the common law which (6) abhors all fraud, would make void this gift as to the Queen, vide Mich. 12 & 13 Eliz. ; Dyer (c) 295; 4 & 5 P. & M. 160. And the statute of (d) 50 E. 3, c. 6, was considered : but that extends only in relief of creditors, and extends only to such debtors as flee to sanctuaries, and other privileged places; but some conceived that the stat. of (e) 3 H. 7, c. 4, extends to this case. For although the preamble speaks only of creditors, yet it is provided by the body of the act generally, that all gifts of goods and chattels made or to be made on trust to the use of the donor, shall be void and of no effect, but that is to be intended as to all strangers who are to take prejudice by such gift, but between the parties themselves it stands good. But it was resolved by all the barons, that the stat. 13 Eliz. c. 5 (f), extends to it; for thereby it is enacted and declared, that all feoffments, gifts, grants, &c., “ to delay, hinder, or defraud creditors and others of their just and lawful actions, suits,
(a) Lane 44, 45. Pauncefoot's Case. (6) 3 Co. 78. a.
(c) 3 Co. 78. a. b.; Dyer 295, pl. 8, 9, 10, &c.; Lane 44.
(d) Co. Lit. 76. a.
(f) Co. Lit. 3 b. 76. a. 290 a. b.; 3 Inst. 152.; 5. Co. 60. a. b.; 6. Co. 18 b.;