21 & 22 Vict. c. 93, s. 8. Saving for rights of persons not cited. Persons domiciled in Scotland may insist, on an ac that he is a natural-born subject. whole proceedings. (Shedden v. Patrick, 2 Sw. & Tr. 170; 30 L. J., Mat. Cas. 217; 9 W. R. 285.) 8. The decree of the said court shall not in any case prejudice any person, unless such person has been cited or made a party to the proceedings or is the heir-at-law or next of kin, or other real or personal representative of or derives title under or through a person so cited or made a party; nor shall such sentence or decree of the court prejudice any person if subsequently proved to have been obtained by fraud or collusion. 9. Any person domiciled in Scotland, or claiming any heritable or moveable property situate in Scotland, may raise and tion of declarator, insist, in an action of declarator before the Court of Session, for the purpose of having it found and declared that he is entitled to be deemed a natural-born subject of her Majesty; and the said court shall have jurisdiction to hear and determine such action of declarator, in the same manner and to the same effect, and with the same power to award expenses, as they have in declarators of legitimacy and declarators of bastardy. No proceedings to affect final judg 10. No proceeding to be had under this act shall affect any ments, &c. already final judgment or decree already pronounced or made by any court of competent jurisdiction (ƒ). pronounced. Acts to be read together. Short title. (f) This section does not prevent the court from inquiring in any case into the merits of the petition, but only enacts that its decree shall have no effect upon the final judgment already pronounced of another competent court. (Shedden v. Att.-Gen. and Patrick, 6 Jur., N. S. 1163; and see S. C. in the House of Lords, L. R., 1 H. L., Sc. 470.) 11. The said act of the last session and this act shall be construed together as one act; and this act may be cited for all purposes as "The Legitimacy Declaration Act, 1858." PAYMENT OF DEBTS OUT OF REAL ESTATES. 11 GEO. IV. & 1 WILL. IV. c. 47. An Act for consolidating and amending the Laws for facilitating the Payment of Debts out of Real Estates. [16th July, 1830.] REPEAL OF FORMER ACTS. 1 Will. 4, c. 47, s. 1. 6 & 7 Will. 3, c. 14. WHEREAS an act was passed in the third and fourth years of 11 Geo. 4 § King William and Queen Mary, intituled "An Act for the Relief of Creditors against fraudulent Devises," which was made perpetual by an act passed in the sixth and seventh years 3 & 4 Will. & M. of King William the Third, intituled "An Act for continuing c. 14. several Laws therein mentioned:" and whereas an act was passed by the parliament of Ireland, in the fourth year of Queen Anne, intituled "An Act for Relief of Creditors against frau- 4 Anne, c. 5 (I.) dulent Devises:" and whereas an act was passed in the fortyseventh year of his late Majesty King George the Third, inti- 47 Geo. 3, c. 74. tuled "An Act for more effectually securing the Payment of Debts of Traders:" and whereas it is expedient that the provisions of the said recited acts should be enlarged, and that the said recited acts should be repealed, in order that all the provisions relating to this matter should be consolidated in one act; be it therefore enacted, that the said several recited acts shall be Recited acts reand the same are hereby repealed, but so as not to affect any of pealed. the provisions and remedies of the said acts, or any of them, to the benefit of which any persons are entitled, as against any estate or interest in any lands, tenements, hereditaments or other real estate of any person or persons who died before the passing of this act (a). to debts. (a) By the common law, freehold lands of inheritance which descended Old rule as to to the heir were assets for the payment of the ancestor's debts by specialty, liability of lands as by bond or covenant in which the heirs were named. (1 Str. 665; 4 East, 492.) But the ancestor, by disposing of the land by will, could deprive his creditors of that means of payment, as the devisee was neither at law, (4 East, 491; 7 East, 135; 2 Atk. 292, 432; 2 Anstr. 515,) nor in equity, (2 Atk. 432,) liable to the payment of the testator's debts in respect of the land devised. The heir at law also to whom the land descended might have defeated the creditor of his ancestor by aliening the land before suit by the creditors, (1 P. Wms. 777,) although in equity he appears to have been responsible for the value of the land sold. (Id. 777, 431; see 1 Fonbl. Eq. 283.) To obviate those mischiefs the statute 3 & 4 Will. & Mary, c. 14, (made perpetual by 6 & 7 Will. 3, c. 14, and extended to Ireland by 4 Anne, c. 5,) was passed, which was repealed and re-enacted by the above act with additional provisions to supply some omissions in the former statute. It must, however, be remembered, that the statutes of 3 & 4 Will. & Mary, c. 14, and 47 Geo. 3, c. 74, are still in force as to persons who died before the 16th July, 1830. 11 Geo. 4 & Fraudulent conveyances. For the old law as to proceedings against the heir upon the bond of his ancestor, as to alienation of assets by the heir, and the statutes of fraudulent devises, see further the notes to Jeffreson v. Morton (2 Wms. Saund. 12, ed. 1871.) It is not necessary under 3 & 4 Will. & Mary, c. 14, as it is under the act 13 Eliz. c. 5, against fraudulent conveyances, that the devise should have been made with the intent to delay, hinder or defraud creditors. (Coope v. Cresswell, L. R., 2 Eq. 106.) The statute 3 & 4 Will. & Mary, c. 14, was confined to fraudulent devises, and therefore fraudulent conveyances, whether voluntary or not, were not within it. It was decided that if a man made a conveyance of lands in his lifetime, in order to defraud his creditors, and died, his bond creditors had no right to set aside the conveyance; for the statute (it is said) was only designed to secure such creditors against any imposition which might be supposed in a man's last sickness. But if he gave away his estate in his lifetime, this prevented the descent of so much to the heir, and consequently took away their remedy against the heir, who was liable only in respect of the land descended. And as a bond is no lien whatever on lands in the hands of the obligor, much less can it be so when they are given away to a stranger. (Parslow v. Weedon, 1 Eq. Abr. 149, pl. 7; 1 Foubl. Eq. 286.) This doctrine was much questioned, and when it was first promulgated gave much dissatisfaction. (Jones v. Marsh, Forr. 64.) Hence it has been stated that voluntary conveyances of lands cannot be set aside, except by creditors who have reduced their debts to judgment before the death of the party, for until that time they constitute no lien on the land. (1 Fonbl. Eq. ch. 4, s. 12; Gilb. Lex Prætoria, 293, 294; Colman v. Croker, 1 Ves. jun. 160.) Under 13 Eliz. c. 5, fraudulent conveyances may be set aside by creditors after the death of the debtor. (Lush v. Wilkinson, 5 Ves. 384.) The bill should be filed by the plaintiff on behalf of himself and all other unsatisfied creditors of the deceased. (French v. French, 6 De G., M. & G. 95; Richardson v. Smallwood, Jac. 552.) And it seems that the plaintiff need not have obtained judgment for his debt. (Rees River Company v. Atwell, L. R., 7 Eq. 347.) For remedying on creditors by wills. DEVISES TO BE VOID AGAINST SPECIALTY CREDITORS. 2. And whereas it is not reasonable or just that by the frauds committed practice or contrivance of any debtors their creditors should be defrauded of their just debts, and nevertheless it hath often so happened, that where several persons having by bonds, covenants or other specialties, bound themselves and their heirs, and have afterwards died seised in fee simple of and in manors, messuages, lands, tenements and hereditaments, or had power or authority to dispose of or charge the same by their wills or testaments, have, to the defrauding of such their creditors, by their last wills or testaments, devised the same or disposed thereof in such manner as such creditors have lost their said debts; for remedying of which, and for the maintenance of just and upright dealing, be it therefore further enacted, that all wills and testamentary limitations, dispositions or appointments, already made by persons now in being, or hereafter to be made by any person or persons whomsoever, of or concerning any manors, messuages, lands, tenements or hereditaments, or any rent, profit, term or charge out of the same, whereof any person or persons, at the time of his, her or their decease, shall be seised in fee simple, in possession, reversion or remainder, or have power to dispose of (b) the same by his, her or their last wills or testaments, shall be deemed or taken (only as against such person or persons, bodies politic or corporate, and his and their heirs, successors, executors, administrators and assigns, and every of them with whom the person or persons making any such wills or testaments, limitations, dispositions or appointments, shall have entered into any bond, covenant or other specialty, binding his, her or their heirs) to be fraudulent and clearly, absolutely and utterly void, frustrate, and of none effect; any pretence, colour, feigned or presumed consideration, or any other matter or thing to the contrary notwithstanding. (b) The words "power to dispose of " were held to include leasehold estates pur autre vie, and therefore, that a devise of them was void against creditors. (Westfaling v. Westfaling, 3 Atk. 460, 465.) Sect. 2 of 3 & 4 Will. & Mary, c. 14, applies to devises of every description of estate legal or equitable. And by sect. 3, the devisee of an equitable estate seems to be made liable to an action of debt by the creditors of the devisor. (Coope v. Cresswell, L. R., 2 Ch. 121.) 11 Geo. 4 & 1 Will. 4, c. 47, s. 2. DEVISEES TO BE LIABLE TO SPECIALTY DEBTS. to recover upon bonds, &c. 3. And, for the means that such creditors may be enabled to Enabling creditors recover upon such bonds, covenants and other specialties, be it further enacted, that in the cases before mentioned every such creditor shall and may have and maintain, his, her and their action and actions of debt or covenant (c) upon the said bonds, covenants and specialties against the heir and heirs at law of such obligor or obligors, covenantor or covenantors, and such devisee and devisees, or the devisee or devisees of such firstmentioned devisee or devisees (d) jointly, by virtue of this act (e); and such devisee and devisees shall be liable and chargeable for a false plea by him or them pleaded, in the same manner as any heir should have been for any false plea by him pleaded, or for not confessing the lands or tenements to him descended (f). (c) By stat. 3 & 4 W. & M. c. 14, s. 3, the remedy was confined to actions of debt, and it was decided that an action of covenant would not lie against the devisee of land to recover damages for a breach of covenant entered into by the devisor. (Wilson v. Knubley, 7 East, 128.) The stat. 3 & 4 W. & M. c. 14, only applied where debt, in the ordinary sense of the word, existed between the parties in the lifetime of both. B., as surety for J., became party to an indenture, whereby A. leased land to J., at a rent payable by J. for a term determinable on A.'s death; and B. and J. covenanted jointly and severally for themselves and their heirs that B. and J., or one of them, or their heirs, executors, &c., should pay the rent reserved, and also a further rent as liquidated damages, if the land were farmed contrary to the covenants of the lease. After B.'s death, rents of both kinds became due: it was held, that B.'s devisees were not liable, under 3 & 4 W. & M. c. 14, to an action of debt for any of the sum due. (Farley v. Bryant, 3 Ad. & Ell. 839; 5 Nev. & M. 42.) Damages recovered in an action of covenant, brought in respect of breaches of covenant, happening after the death of the testator, were held to be a debt payable out of his real estate, under a charge of debts in his will. (Morse v. Tucker, 5 Hare, 79.) S. H H 3 & 4 W. & M. actions of debt. Debts within 3 & 4 W. & M. c. 14. 11 Geo. 4 & 1 Will. 4, c. 47, s. 3. Application of Where there was a covenant to pay an annuity, which did not become in arrear till after the testator's death, it was held, that the arrears of the annuity were a debt within 3 & 4 W. & M. c. 14. (Jenkins v. Briant, 6 Sim. 603.) So, also, where a testator had covenanted in his son's marriage settlement for the payment of 3,000l. during his life, or three months after his decease. (Coope v. Cresswell, L. R., 2 Ch. 112.) (d) The remedy is here extended to the devisees of devisees. (Westfaling v. Westfaling, 3 Atk. 460.) (e) Equity followed the rule of law; and therefore, in a bill by a specialty creditor against a devisee under the 3 & 4 W. & M. c. 14, it was decided, that the heir at law (if any) of the testator was a necessary party. (Gawler v. Wade, 1 P. Wms. 99; Warren v. Stawell, 2 Atk. 125) In arranging the funds in equity between the heir and devisee, it is settled assets as between that assets descended to the heir must be applied to pay debts before lands can be charged which are specifically devised. (Chaplin v. Chaplin, 3 P. Wms. 367; Powis v. Corbet, 3 Atk. 556.) See further, as to the order in which assets are applied in payment of debts, the note to 3 & 4 Will. 4, c. 104, post, p. 479. heir and devisee. (f) If in an action by a bond creditor against the heir of an intestate, the latter plead a false plea, the Court of Chancery will, after a decree obtained in a suit by another creditor for the administration of the intestate's assets, restrain the plaintiff at law from taking out execution against the assets, but not from proceeding against the heir personally. (Price v. Erans and wife, 4 Sim. 514.) In an action of debt against a devisee on a bond of his testator, in which the question is, whether the signature of the testator is a forgery or not, a party entitled, under the testator's will, to an annuity charged on his real estate, was not a competent witness for the defendant. (Bloor v. Davis, 7 Mees. & W. 235.) If there is no heir at law, actions may be main Action against Devisee only. 4. If in any case there shall not be any heir at law against whom, jointly with the devisee or devisees, a remedy is hereby tained against the given, in every such case every creditor to whom by this act devisee. relief is so given shall and may have and maintain his, her and their action and actions of debt or covenant, as the case may be, against such devisee or devisees solely; and such devisee or devisees shall be liable for false plea as aforesaid (g). (g) Where the obligor of a bond, having devised his land, died before the passing of the stat. 11 Geo. 4 & 1 Will. 4, c. 47, it was held, that the specialty creditor could not maintain an action against the devisee alone, there being no heir, under 3 & 4 W. & M. c. 14, s. 3. (Hunting v. Sheldrake, 9 Mees. & W. 256. See Gawler v. Wade, 1 P. Wms. 100.) Not to affect limitations for just Act not to extend to Provisions for Payment of Debts. 5. Provided always, and be it further enacted, that where debts or portions there hath been or shall be any limitation or appointment, devise or disposition, of or concerning any manors, messuages, lands, tenements or hereditaments, for the raising or payment for children. of |