1805. CHAMBERS against done) then she was not at the time of the criminal intercourse living separate from him by his consent, and of course the event and situation provided for in the deed has not happened; and in that view of the case, there can be CAULFIELD, no question but that the plaintiff's right to recover is not affected by this deed and if she did leave her husband with such approbation, the husband has not in this case (as he was holden to have done in the case of Weeden v. Timbrell) given up all claim to be derived from her comfort, society, and assistance the consequence of which is, that the case of Weeden v. Timbrell, allowing it the fullest effect according to the terms, cannot be considered as an authority against the plaintiff in the present action. As to the second ground upon which the new trial was moved for, viz. That of excessive damages; if it appeared to us from the amount of the damages given as compared with the facts of the case laid before the jury, that the jury must have acted under the influence either of undue motives, or some gross error or misconception on the subject, we should have thought it our duty to subunit the question to the consideration of a second jury; but this does not, upon a review of the whole evidence, appear in the present instance to have been the case. Rule discharged: VOL. VI. DEWEY 1805. Monday, One who had a life interest in a settled estate of Is wife (both DEWEY against Sir ANDREW BAYNTUN, Bart. THIS HIS was an action by the plaintiff, as administrator of Eleanor Dewey, against the defendant, sheriff of the county of Wilts, for a false return of nulla bona (except as aged) of at least to 2561, 58.) to a writ of testatum fieri facias, sued out by the 3000l. a year, of whom were on failure of is none) was in not less than were of the ul said Eleanor upon a judgment for 24004. and costs recovered timate reversion by her against Lord Arundel of Wardour, in which the desue male (of claration contained the usual averment, that at the time of which there was the delivery of the writ to the sheriff, and before the return her, and having thereof, Lord Arundel had goods and chattels within the furniture and pictures, &c. in bailiwick, whereof the sheriff might have levied the debt his mansion of and damages. Upon not guilty pleaded, the question at the Socol.value,be- trial before Lord Ellenborough, C. Jat the sittings at Westing pressed by minster after last Trinity term was, Whether certain deeds pursuance of an aftermentioned, executed by Lord Arundel, before the orihis wife, con ginal action brought, for conveying to trustees a certain lifeveys all that his estate and the household furniture and pictures in Wardour tees (who had Castle, in trust for his wife Lady Arundel and for other pur. daughters) for poses, were fraudulent or not? If fraudulent, the action the benefitof his well lay: if valid in point of law, the return of the sheriff' wife and daughwas proper. his creditors, in agreement with propertyto trus married his two ters, and subject to his wife's future appointment; in consideration whereof, the wife discharged him of above 3000! before raised on the estates principally for his use, and enabled the trustees to raise out of her estate 12,ocol. more for the benefit of her husband's creditors, but subject to the appointment of him, his executors, &c.; and also covenanted to levy a fine, which was levied a year after. wards: and the husband covenanted to deliver an inventory of the goods to the trustees within six months, which was not done. And after the conveyance, the husband continued to use the furniture, &c. in the house as before; and was soon afterwards sued by several of the credi tors, whose executions against such goods were satisfied by him, without setting up the trustdeed, or resorting to the trust fund ; but money was raised on it afterwards for other creditors; and above two years after the deed, the husband being sued by the plaintiff, a creditor before that time, the trust-deed was set up in bar of the levy upon the goods in the house: and the sheriff returned nulla bona. And upon an action brought for a false return; held that in the consideration of the question, Whether this were a bona fide transaction, or a contrivance to defeat creditors, and, therefore void at common law? or, by the stat. 13 Eliz. c, 5, it is material to submit to the jury the relative value of 'he property withdrawn from the reach of the creditors in proportion to the amount of their demands at the time, and the value and tangibility of that substituted in its place, in aid of the conclusion that the deed was covenous against them; and, therefore, a verdict for the plaintiff, founded principally on these concomitant circumstances: 1. The previous embarrassment of the husband; - -2. The want of notoriety of the conveyance at the time; -3. The want of an inventory:-4. The continuance of the husband's possession, though consistent with the deed, yet without notice of the change of property; and, . The appropriation by the husband of a part of the money raised by the trus tees to his own use, without objection, was set aside, and a new trial granted to bring the question more fully before the Court and jury as to the good faith of the transaction, and the value of the consideration, and its availability to the creditors. *[258] The The plaintiff proved the judgment of Mich. term, 43 G. 3, in the suit of Eleanor Dewey against Lord Arundel for 24001. the writ indorsed on the 9th of December, 1802, and delivered to the sheriff on the 12th, the return of nulla bona (as to all but 2561. 5s.) and that there was at that time household furniture and pictures in Wardour Castle, where Lord Arundel, who appeared as ovner, and his family resided and still continue to reside, to the value (as admitted) of above 8000.; but there was no proof of what the actual value was. The debt was of long standing before the deeds in question. On the part of the defendant, the following deeds were given in evidence: 1. The marriage settlement of Lord and Lady Arundel in 1764, founded on prior articles, by which it appeared that Lady Arundel was seised in fee before marriage of estates to the amount of between 3000l. and 4000l. per annum, which were settled upon her and Lord Arundel for their joint lives, and the life of the survivor; remainder to the use of the issue male in tail; remainder to the use of such person or persons as Lady Arundel should by deed or will appoint; and in default of ap pointment, remainder to her own right heirs in fee. 2. Indentures of lease and release, and appointment, dated 28th and 29th April, 1800, between Lord and Lady A. of the one part, and Lord Clifford and Mr. Arundel (who had married the two only daughters of Lord and Lady A. the only issue of the marriage) of the other part; which, reciting the settlement of 1764, and that the settled estates were liable to a mortgage of 37167. chiefly raised for Lord A.'s benefit, and also to the payment of two several sums of 10,000l. the marriage portions of the two daughters; and that Lord and Lady A. had then no male issue, nor a probability of having any from their advanced age (Lady A. then being about 66, and Lord A. nearer 70) witnessed that Lady A. in pursuance of an agreement between her and Lord A. and of the power reserved to her, appointed that the estates should on the death of the survivor of them, and on failure of their issue male, and subject to the beforementioned charges, remain to the use of Lord Clifford and Mr. Arundel, their heirs, &c. upon the trusts after mentioned; and Lord and Lady Arundel conveyed the estates accordingly to the use of the trustees for a term of 99 years, if 02 Lord 1805. DEWET against BAYNTUN. [ 259 ]· 1805. DEWEY against BAYNTUN. Lord and Lady A. and the survivor should so long live, upon the trusts thereafter mentioned, and subject thereto, to the several uses limited to the trustees named in the settlement of 1764, and their heirs, for preserving contingent re mainders during the life of Lord and Lady 4. and the survivor of them, and to their issue male, by way of continuation of the said uses; and when the same should be incapable of taking effect, to the use of Lord Clifford and Mr. Arundel, and their heirs, in trust by sale, or otherwise, out of the said term or the inheritance to raise 12,000l. and interest, and pay the same to such person or persons as Lady Arundel should by deed appoint; and in default of such appointment, to her own separate use, and subject thereto, should stand seised of the said term, and the fee to such uses as Lady A. should by deed or will appoint; and in de fault of such appointment, to Lady A. in fee. This deed also contained a covenant by Lord and Lady Arundel to levy a fine, to the uses therein before expressed (which, was levied accordingly in Tr. 41 Geo. 3). 3. An indenture of equal date with the foregoing; viz. 29th April, 1800, be[260]tween the same parties, which, after reciting the settlement of 1764, and that the estates were liable to the mortgage of 3716%. and the portions of the daughters, and that Lord and Lady A. had no male issue, nor a probability of any; recited further, that Lord Arundel was considerably indebted to several persons; that the sums mentioned to be charged on the estates were raised for the benefit of Lord A. and had been applied by him for his own use, except 24167. for an inclosure of part of the estates; that Lord 4. was indebted to the estate of Lady A. in the whole of the said mortgage debt of 37167.; that under the marriage settlement the estates were in default of issue male subject to Lady A's sole appointment; that Lord A. was possessed of pictures, jewels, furniture, books, &c. in Wardour Castle, &c. that Lord A.'s creditors were very urgent for the payment of their debts; that it had been agreed between Lord and Lady A. that 12,000l. should be charged upon her estates, and applied in discharge of Lord A'.s debts; and that the estates should in default of issue male inheritable under the settlement of 1764, be settled to the use of their two daughters and their issue, subject to a power for Lady A. to charge the estates .1805. DEWEY against BAYNTUN, with 30007. and an annuity of 2004. and that Lord A. should be released from the 37161. which he was indebted to Lady A's estate; and that in consideration thereof, Lord A. should assign to trustees for the separate use of Lady A. the said pictures, &c. And also reciting, That, in pursuance and part performance of the said agreement, the last abstracted deed of even date with this had been executed, witnessed, That in further pursuance of the agreement, and in execution of her powers, Lady A. did thereby direct and appoint, that Lord Clifford and Mr. Arundel, their heirs, &c. should apply the 12,000l. which by the last-mentioned indenture they were directed to raise, in and towards the discharge of such of the debts owing by Lord A. as he Lord A. his executors and administrators should by any [261] writing or writings, under his or their hands direct or appoint; and subject to the levying thereof, should pay the residue of the rents as Lady A. should direct; and in default thereof for her separate use; and in case of the death of Lord A. then to pay such rents to Lady A. during her life; but if Lord A. should survive her, then to pay the rents as Lady A. should by will, &c. appoint; and in default of such appointment, to Lord A. for life; and after the decease of Lord and Lady A. and in failure of their issue male inheritable, &c. should convey the estates to the use of their daughters and their children, &c. (subject to the appointment of Lady A. by will or deed); and in default of such appointment, in moieties to the two daughters in strict settlement; remainder to the right heirs of Lady Arundel. Then followed a declaration, discharging Lord A. from any claim from the estate of Lady A. in respect of the money so to be raised, and a power to Lady A. to charge the estates with the further sum of 3000l. and the annuity of 2007.; and in consideration thereof, Lord A. conveyed to Lord Clifford and Mr. Arundel all the paintings, &c. statues, plate, jewels, china, glass, fixtures, linen, furniture, &c. books, &c. and implements of household and husbandry in and about his mansion of Wardour Castle, &c. in trust for such person and for such intents as Lady A. should appoint; and until then, in trust for Lady Arundel's separate use, not subject to the debts or control of Lord 4.; and in default of her appointment the trustees were after her death 0 3 to |