Lord Townshend v. Windham, 2 Ves. 1, Lord Hardwicke expressed himself in the most explicit and decided manner. He said that he took it that a man "actually indebted, and conveying voluntarily, always meant to defraud creditors." I understand him to mean here, that this was the conclusion of law, which was not to be gainsaid; and he said he knew of no case where a voluntary conveyance to a child by a man indebted at the time, was not set aside for the benefit of creditors; but he said that a voluntary conveyance, without any badge of fraud, and by a person not indebted at the time, would be good, though he afterwards became indebted. He spoke strongly in favor of the superiority of the claims of creditors over family provisions, and observed, that "though an unfortunate case may arise in respect to children, for whom parents are bound by nature to provide, it is impossible to say the consideration in respect to them is of so high a nature as that of paying just debts, and, therefore, the court never preferred them to just creditors." In Fitzer v. Fitzer, 2 Atk. 511, Lord Hardwicke asked the attorney-general if there was an instance in that court where a conveyance from husband to wife, without any pecuniary consideration moving from the wife, had been held to be good against creditors.

The same rules and distinctions are declared and enforced throughout the subsequent decisions. In Stephen v. Olive, 2 Bro. 90, a settlement was made after marriage, by a person not indebted except in five hundred pounds, secured by mortgage on the settled estate; and the master of the rolls held that a settlement after marriage, in favor of a wife and child, by a person not indebted at the time, was good against subsequent creditors; and he refused to grant relief in this case to a subsequent creditor, notwithstanding the settler was indebted at the time, seeing that the debt existing at the time was secured by a mortgage on all the estate settled. And Lord Eldon afterwards, in George v. Milbanke, 9 Ves. jun. 193, allows of the same exception, when he says that if the voluntary settlement contains a provision for the payment of debts then existing, that makes it good against all future creditors.

It cannot escape observation that the only question in these cases was respecting the subsequent creditors. There is no doubt, in any case, as to the safety and security of the then existing creditor. No voluntary post-nuptial settlement was ever permitted to affect him, and the cases seem to agree that the subsequent creditors are let in only in particular cases, as where

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the settlement was made in contemplation of future debts, or where it is requisite to interfere and set aside the settlement in favor of the prior creditor, or where the subsequent creditor can impeach the settlement as fraudulent, by reason of the prior indebtedness.

But the case of Lush v. Wilkinson, 5 Ves. jun. 384, has been much relied upon, as if it gave more strength to the statement against subsequent debts than the prior cases seem willing to allow. The settlement, in that case, was on the wife, after marriage, of an annuity, charged upon lots subject to two mortgages. The bill was by a subsequent creditor against the executor and widow of the husband, to set aside the deed granting the annuity, and charged that the husband was indebted to several persons, and in insolvent circumstances, at the date of the deed. The answer averred that the husband was not insolvent, and that, except the two mortgages, he did not owe above one hundred pounds at the time, and that none of the debts were due at his death.

It was contended, on the part of the defendant, that there was no evidence of any debt at the time, except the two mortgages, for the plaintiff produced no testimony; and the opinion of Lord Mansfield, in Doe v. Routledge, Cowp. 705, was referred to, in which he considers that the validity of a voluntary settlement depended on the fact whether the settler was indebted at the time. The counsel on the other side admitted the law to be that there must be a debt at the time. Lord Alvanley, the master of the rolls, then observes that the plaint-` iff appeared as a subsequent creditor, and without proving any one antecedent debt, and he comes with a fishing bill, and desires an account and an inquiry, in order to prove antecedent debts; and the bill was dismissed, with liberty to file another.

This was the case of a subsequent creditor, and, therefore, it does not apply to the case before me, except so far as it assumes, like all other cases, the rule to be settled, that a voluntary settlement never can impair a subsisting debt. But there is a dictum of the master of the rolls in this case, which has been thought to be of some moment, where he observes that a single antecedent debt will not do. Every man must be indebted for the common bills for his house. It must depend upon this whether he was in insolvent circumstances at the time.

Such a loose dictum, one would suppose, was not of much weight, especially as there is no preceding case which gives the

least countenance to it. Another master of the rolls had before said, in Taylor v. Jones, already cited, that the circumstances of the settler, at the time of the settlement, were not material, except as to the question of actual, intentional fraud, and that intention, we know, is never the inquiry in respect to the demands of the prior creditors. If insolvency can ever be made a question as to these voluntary settlements, it can only be in respect to the subsequent creditors; and Lord Alvanley was speaking of such a case, and of none other. But even here the cases are numerous to show, that if the settlement be once set aside by the prior creditors, subsequent creditors are entitled to come in, and be paid out of the proceeds of the settled estate.

In Kidney v. Coussmaker, 12 Ves. jun. 136, the question was on a post-nuptial settlement as against creditors; and it was insisted that they were entitled to defeat it, if the settler was indebted at the time; but there was said to be no proof of a single debt existing at the date of the settlement. Sir Wm. Grant, in giving his opinion, observed, that in Lush v. Wilkinson, the bill was filed for the purpose of affecting the settlement, upon the ground that the settler was insolvent at the time it was made, and that there was no evidence in support of such a charge, and the bill was dismissed. He said he was disposed to follow the decision of Lord Rosslyn, in Montague v. Lord Sandwich, July 1797, cited Id. p. 148; and 5 Ves. jun. 366, note, that the settlement was fraudulent only as against such creditors as were creditors at the time. Lord Rosslyn, in the case referred to, declared a settlement void as to the creditors prior to its date. There was no question of insolvency made; but it was clearly held, by Lord Rosslyn, in that case, see 12 Ves. jun. 156, note, that if the settlement be affected as fraudulent against such creditors, the subject is thrown into assets, and all subsequent creditors are let in.

The last case on the subject which I shall notice, is that of Holloway v. Millard, 1 Madd. Ch. 414. That was a bill by creditors against the parties to a voluntary settlement upon a natural child, praying that the deficiency of assets, if any, might be made good out of the settled estate. The plaintiffs were subsequent creditors, and the bill did not state that the party was indebted when the settlement was made. The counsel for the plaintiffs contended, that if it was necessary to show that the party was indebted at the time, a reference ought to be ordered for that purpose; but it was observed, on the other side, that

there was no charge in the bill to warrant the inquiry, and that a man must be indebted, and largely so, to render the settlement invalid, mere trifling debts in the course of housekeeping would not be sufficient.

The vice-chancellor, in giving his opinion, said that the settler here was not indebted at the time, and that a voluntary conveyance could not be avoided by subsequent creditors, except on the ground of a fraudulent intent, for that it was clear that a voluntary settlement, even in favor of a stranger, by a person not indebted at the time, nor meaning a fraud, was good against subsequent creditors. But he said further, that a voluntary disposition, even in favor of a child, was not good if the party was indebted; and he refused, on inquiry, whether the party was indebted at the time, because there was no foundation for such an inquiry laid by the bill.

The conclusion to be drawn from the cases is, that if the party be indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to such debts, and no circumstance will permit those debts to be affected by the settlement, or repel the legal presumption of fraud. The presumption of law in this case, does not depend upon the amount of the debts, or the extent of the property in settlement, or the circumstances of the party. There is no such line of distinction set up or traced in any of the cases. The attempt would be embarrassing, if not dangerous to the rights of the creditor, and prove an inlet to fraud. The law has, therefore, wisely disabled the debtor from making any voluntary settlement of his estate to stand in the way of his existing debts. This is the clear and uniform doctrine of the cases, and it is sufficient for the decision of the present cause.

With respect to the claims of subsequent creditors, there is more difficulty in arriving at the conclusion, and I am not called upon in this case to give any definite opinion, for there are no such creditors before the court. But since the subject has been examined, I would suggest what appears to me at present, but with my mind still open for further discussion and consideration, to be the better opinion from the cases; it is, that the presumption of fraud as to these creditors, arising from the circumstance that the party was indebted at the time, is repelled by the fact of these debts being secured by mortgage, or by a provision in the settlement; that if no such circumstance exists they are entitled to impeach the settlement by a bill properly adapted to their purpose, and charging and proving indebted

ness at the time, so that their rights will not depend on the mere pleasure of prior creditors, whether they will or will not impeach the settlement; that the question then arises, to what extent must the subsequent creditors show a prior indebtedness? Must they follow the dictum of Lord Alvanley and show insolvency, or will it be sufficient to show any prior debt, however small, as is contended for by Mr. Atherley, with his usual ability, in his treatise on marriage settlements: Ath. Mar. Set. 212 to 219. I should apprehend that the subsequent creditors would be required to go so far, and only so far in showing debts, as would be sufficient to raise reasonable evidence of a fraudulent intent. To show any existing debt, however trifling and inevitable, to which every person is more or less subject, would not surely support a presumption of fraud in fact; no voluntary settlement in any possible case could stand upon that construc

I should rather conclude that the fraud in the voluntary settlement was an inference of law, and ought to be so, as far as it concerned existing debts; but that, as to subsequent debts, there is no such necessary legal presumption, and there must be proof of fraud in fact; and the indebtedness at the time, though not amounting to insolvency, must be such as to warrant that conclusion. It appears in all the cases, and particularly in the decision of Sir Thomas Plumer since the publication of Mr. Atherley's treatise, that a marked distinction does exist under the statute of 13 Eliz., between prior and subsequent creditors, in respect to these voluntary settlements; and it is now settled that the settlement is not void as, of course, against the latter, when there were no prior debts at the time.

The law of Massachusetts seems to be laid down according to this view of the subject. In Bennett v. Bedford Bank, 11 Mass. 421, there was a voluntary conveyance to a son by a father, indebted at the time, but not in embarrassed circumstances, or equal in debt to the value of his property. The debt to the plaintiff did not accrue until several years afterwards. It was held by the court that as there was no fraud in fact, the deed in this case was good against the subsequent creditor, "and against all persons but such as were creditors at the time.”

But there is a case, recently decided by the supreme court of errors of Connecticut: Salmon v. Bennett, 1 Conn. 525 [7 Am. Dec. 237], which lays down a rule somewhat different from that which I have deduced from the English cases. The question arose in an action of ejectment. The plaintiff had purchased Virginia lands of Sherwood, in 1794, and paid him the purchase