1803. SHAW and Another (assignees of HILL, a bankrupt,) versus JAKEMAN.-Nov. 19. Bankrupt. Settlement. Agreement. SHAW versus JACKMAN. AN agreement made before marriage, and a deed of settlement pursuant thereto after marriage, will bind the creditors in case of the bankruptcy of the husband; but there being a mistake in, the articles and settlement in this case, which were altered by the consent of all parties, and re-executed without a new stamp, after the bankruptcy, held, that the alteration being not even in pursuance of a parol agreement before marriage, did not bind the creditors; and yet that, notwithstanding the alteration and re-execution, the deed and articles were good, as to their original stipulations; for they could not be avoided, without the consent of the feme, who, by reason of her coverture, could give no con sent. THIS was an action of assumpsit for money had and received to the use of the bankrupt Hill, and also for other money had and received to the use of the assignees. At the trial before Lord ELLENBOROUGH, C. J. in the sittings after last Easter term, it appeared in evidence, that the bankrupt Hill had married the daugh ter of the defendant. And previous to the marriage, (3d August 1802,) an agreement in writing as entered into between the bankrupt and the defendant, whereby, after reciting the marriage which was intended to be had, it was agreed, that the sum of 3401. 3 per cents., belonging to Hill, should be transfered to trustees, and settled on the wife and the children of the marriage. The marriage afterwards took place on the 23d of August. A deed of settlement was drawn according to the terms of the agreement, in which the defendant, and another person, who had married Hill's sister, were made the trustees, and it was executed on the 29th of November following. Hill absented himself from his house from some day early in September until the 14th of December, and thereby committed an act of bankruptcy. After the execution of the deed, it was found that there had been a mistake committed by the attorney in the amount of the stock to be transferred. It was the intention of the parties, that the whole of Hill's stock in the 3 per cent. consols, should be settled on his wife as above; but when he gave instruction for the deed, he represented it as only 3401., meaning that it was worth that sum in sterling money, whereas in fact his actual stock was considerably more, viz. 4501. 3 per cents. In order to rectify this mistake, an alteration was made both in the articles and the deed, and they were re-executed, about five or six days after the original execution of the marriage-settlement. This alteration was with the privity and consent of all parties. The act of bankruptcy was found by the jury to be commited on the 29th-day of November 1803, and a verdict was taken for the plaintiffs in the amount of the value of the whole of the 4501. stock, subject to the opinion of the court upon the following questions: 1st, Whether, as the deed was altered in an essential point as to the money secured thereby, it did not require a new stamp to render it a valid instrument: and, 2dly, Whether, by the alteration, it was not wholly void, even as to the sum of money originally conveyed to the trustees under it. For the purpose of deciding these points, a rule was obtained in Trinity term, calling upon the plaintiffs to show cause why there should not be a new trial. GIBBS and MARRYAT for the plaintiffs. "This being an agreement before marriage, and a deed in consequence thereof, executed after the marriage, it was contended for the plaintiff at the trial, that the alteration being made with the consent of all parties, the deed was good, even for the 4501. stock. But, at the time when it was altered, every thing which Hill the bankrupt had was vested in his assignees, whose consent, then, became necessary, and without it there could be no interest conveyed to the trustees in this sum of 4501. stock. And in Muster v. Miller, it was held, that an alteration inja note, by accelerating the day of payment, rendered it 4 Term Rep. 320.. 1803. SHAW versus JAKEMAN, 1805. SHAW versus JACKMAN. void ab initio. For, if it were not so, a man who intended by such an alteration to commit a fraud, or what the law, though it be not done malá fide, calls a fraud,would run the chance of gaining by it, without any risk in case of its being detected. But if this could be done without the consent of the assignees, there should have been a new stamp upon the re-execution of the deed, otherwise it could not be given in evidence; for it is a perfectly new deed, since the first agreement was made to operate upon only 3401. three per cent. consols., but this is made to operate on 4501. And, for the like reason, as there is no evidence in writing made previously to the marriage for more than 3401., this deed cannot be valid for more than that sum. For by the statute of frauds, no action shall be brought whereby to charge any executor, &c. or to charge any person upon any agreement made in consideration of marriage, &c. unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised.' Here the parties to be charged' were the assignees, who have signed no agreement, and the plaintiffs are therefore intitled to retain the verdict, either for the whole sum, or for the difference between the worth of the 4501. stock, and the 3401. stock." "This ERSKINE and GARROW, for the defendants. is not an action upon the agreement, nor upon the deed; but in assumpsit, which is an equitable action, and the assignees of the bankrupt can only take his estate, subject to all the equities to which he is liable; and if Hill could not recover, neither can the plaintiff, as his assignee. This was a bona fide agreement entered into with the father, who refused to let Hill marry his daughter unless he would settle the whole of his money in the funds upon his intended wife and her issue. And this agreement 29 Car. II.c. 3. s. 4. being made before the bankruptcy and not in contemplation of bankruptcy, will bind the assignees. It was indeed argued, that the conveying nearly all the bankrupt was worth, in settlement upon his wife, was of itself an act of bankruptcy; but the finding of the jury, that it was not in contemplation of bankruptcy, is a sufficient answer to that argument. The alteration in the deed was, to make it according to the truth; and there was no attempt to defraud any of the parties. On the contrary, they all consented. But in Master v. Miller, there was an intention to defraud, and, therefore, this is clearly distinguishable from that case. The actual agreement, prior to the marriage, was for the whole of the stock to be transferred, and not a specific sum; and whether a mistake was made by Hill, or the attorney, a court of equity would have compelled a specific performance of this agreement, if Hill bad continued solvent." THE COURT doubted as to the power of the wife to consent to the altering or annulling of the deed and agreement; and took time to consider how far she, or her trustee, could be affected by what had been done. On the next day, Lord ELLEN BOROUGH, C. J. delivered the opinion of the court to the following effect: "The question, in this case, is, Whether the plaintiff, who is the assignee of Hill, a bankrupt, shall be per-mitted to recover from the defendant the value of the stock in his name, which he has received of him, and holds as trustee for the benefit of the wife of the bankrupt? Upon the evidence it appears, that Hill received the produce of the stock, and delivered it to Jakeman, upon the trusts stipulated. Those trusts were evidenced by articles of agreement entered into before marriage; but it is said, that these articles were destroyed by the consent of all the persons for whose benefit they were made, and new articles were entered into, after marriage, which were void * 4 Term Rep. 320. 1803. SHAW cersus JAKEMAN. VOL. 1. 1803. SHAW versus JAKEMAN. for want of a stamp, and the whole fails. This could not be; because, at the time, one of the parties chiefly interested, namely, the wife, was incapacitated, by her coverture, from giving her consent to the annulling of any agreement made for her benefit; so that the instrument, if destroyed without her consent, and, as we have seen, no such consent could have been given by her) would be set up in equity. For, at the time when the marriage articles were executed, there was a good agreement subsisting, even under the statute of frauds, evidenced by writing, and made in consideration of marriage, which would be binding against the creditors; for the assignees of the bankrupt would only have the same interest in the stock which the bankrupt himself had. In the case of Tyrrel v. Hope, the master of the rolls held, "that a note, under the hand of the husband, ought to be looked upon as part of the marriage agreement, and, consequently, a part of the settlement; and, as the wife would have been relieved, if she had brought a bill against the husband, equally so as brought against the assignee,who stands in his place." "The assignees," he says, "can be considered no otherwise than as the bankrupt himself, because what has been done upon the marriage is in the nature of a trust only for the wife, and, therefore, if the husband is only a trustee for the wife, the assignees, of course, must be trustees, in the same manner as the husband was." Perhaps even a parol agreement, made before marriage, and fulfilled by the marriage, would be a charge against the husband and his creditors: for she is induced to marry him by means of the agreement; and the marriage is a part performance of it, which probably would take it out of the statute of frauds. Dundas v. Dutens.† * 2 Atkyns, 558. + Dundas v. Dutens, 1 Vesey, jun. 196. In that case a settlement was made subsequent to the marriage by indenture, reciting a parol agreement before the marriage, to settle the property of the wife, 10001. three per cent. consols., and other stock and monies, and accordingly settling it on the wife and children; |