that it should be paid; such undertaking has been enforced in Equity (2); but if the promise has been made by a person not interested, or not solely interested, it would be different (a).

So, where a Father purchased Lands to him and his Heirs, and when he was on his death bed sent for his eldest Son, and told him, that these Lands were bought with his second Son's Money, and that he intended to give them to him, upon which the eldest Son promised that he should enjoy them accordingly, and the Father died; the Lord Keeper Wright and the Master of the Rolls held that the eldest Son took the Lands, there being no declaration of the Trust in Writing; but Lord Cowper held it to be a Fraud, and that the second Son should enjoy the Lands. (b).

With regard to Fraudulent Devises, it is observable, that before the Statute, 3 Wil. & Mar. c. 14, bond and other specialty Creditors, whose debts did not immediately affect the Lands of their Debtors, were liable to be defrauded, either by their Debtor devising his Lands, or by the alienation of the Heir before any Action could be brought against him; to obviate which frauds, the Statute declares all Wills and Testaments, Limitations, Dispositions, and Appointments of real Estatess by Tenants in fee simple,

(z) Mestaer v. Gillespie, 11 Ves. 638. S. C. MS.; see also Strickland v. Aldridge, 9 Ves. 519. S. C. MS.; and see Ruck v. Kennegal, 1 Ves. 123. S. C. Ambl. 67. Barrough v. Greenough, 3 Ves. 152. Sellack and Harris, Vin. Abr. tit. Contract and Agreement, (H.) Cas.

31. Devenish v. Baynes, Prec. Ch. 3. Chamberlaine v. Agar, 2 Ves. & Bea. 262,

(a) See Whitton v. Russell, 1 Atk. 449.

(b) 5 Vin. Abr. 521. Gilb. Eq. Rep. 4, 11. cited 3 Wood. Lect. 438.

or having power to dispose by Will, fraudulent and void, as against Creditors by bond or other specialities; and that such Creditors may maintain their Actions jointly against the Heir and Devisee; and that if the Heir alien before Action brought he shall be liable to the value of the Land, and that the Devisee shall be chargeable in the same manner as the Heir would have been if the Lands had descended. By these Provisions the specialty Creditor is in some degree protected against the Fraud of his Debtor, or his Heir; but the statute having expressly excepted Devises for payment of Debts, or for raising Childrens Portions, in pursuance of any Agreement or Contract made before Marriage, bond and other specialty Creditors, whose demands do in their nature affect the Land, are still liable to be prejudiced by such right of their Debtor so to devise his real Estate; for if he devise, subject to the payment of debts, his simple contract Creditors will be entitled to be paid, pari passu, with such bond or other specialty Creditors (c); and, in such case, even Creditors whose demands are barred by the Statute of Limitations have been let in (d).

Before the Statute, if the Testator had devised his Estates for the payment of his Debts, all Creditors, whether by specialty or simple contract, were, pari allowed to take the benefit of the devise (e);

passu,

(c) See Fonbl. Eq. 1 vol. 282, 3, in note, who cites Woolstoncroft v. Long, 1 Ch. Cas. 32. 3 Ch. Rep. 7. Hixom v. Witham, 1 Ch. Ca. 248. Anon. 2 Ch. Ca. 54. Girling v. Lee, 1 Vern. 63. Child v. Stephens, 1 Vern. 101. Sawley v. Gower, 2

Vern. 61. Wilson v. Fielding, 2 Vern. 763.

(d) See Fonbl. Eq. 1 vol. 283. in note, who cites Gofton v. Mill, 2 Vern. 141.

(e) Vid. Woolstoncroft▾ Long, Ch. Ca. 32. Anon. 2 Ch. Ca. 54.

for as the Money in those cases never reached the hands of the Executors, no Action lay, and the Creditor was obliged to apply to a Court of Equity for Satisfaction, whereupon, Equity not being tied down to the Rule of Law, introduced a new method of administration; and seeing the Testator had made no distinction between the difference of Securities given for the payment of debts, the Court conceived that the Testator meant to do equal justice to all his Creditors (f); and the Statute was supposed to be an approbation of Equitable assets, and therefore, after that Statute, when a devise was made for payment of debts, all the Creditors, were, as before the Statute, allowed to avail themselves of the Devise, and share the Estate, pari passu, as equitable Assets (g).

If the Heir taking by Descent, or the Devisee, alienate the Estate to a bona fide Purchaser, they themselves remain personally responsible, but the purchasers are not liable (h).

As we shall have occasion more particularly to consider the important doctrine as to Assets in a future part of this Work, that subject will not be further considered here.

It is a maxim, that a Party, enabling another to commit a Fraud, is answerable for the consequences (i). As a corollary from this doctrine, it was the old notion of the Court, that a second Mortgagee, who has the Title Deeds, without notice of

(f) 1 Bro. C. C. 139, in n. (g) See the able judgment in Silk and Prime, 1 Bro. C. C. 139, in note; S. C. 1 Dick. 384.

(h) Matthews v. Jones, 2 Anstr. 506.

(i) Vid. Bacon's Max. 16.

any prior encumbrance, should be preferred (k); on the ground that, if the Mortgagee lends money without taking the Title Deeds, he enables the Mortgagor to commit a Fraud (); but this position has in recent Cases been overruled; and the doctrine now is, that the mere circumstance of parting with the Title Deeds, unless there is Fraud, Concealment, or some such purpose, or some concurrence in such purpose, or that gross negligence, which amounts to evidence of a fraudulent intention, is not of itself a sufficient ground to postpone the first Mortgagee (m).

If a Trustee permits Title Deeds to go out of his possession for the purpose of Fraud, and though intending to defraud one person, he defrauds another, relief may be obtained (n).

So, where a Mortgagee was present whilst the Mortgagor was in Treaty for his Son's Marriage, and concealed his Mortgage, the Court decreed the Son, the Wife, and the Issue, to hold the Land against the Mortgagee and his Heirs (o).

Notwithstanding the general doctrine in Berwell and Christie (p), it seems now settled, that if on a

(k) Vid. Mocatto v. Murgatroyd, 1 P. Wms. 394. Head v. Egerton, 3 P. Wms. 281.

() Vid. what Burnett, Just. says in Ryall v. Rowles, 1 Ves. Sen. 360. 1 Atk. 168; and see what Justice Buller says in Goodtitle v. Morgan, 1 T. R. 762. Mr. Justice Burnett's able Judgment in Ryall v. Rowles, 1 Atk. appears, on comparison with that Judge's MS. notes, in Lincoln's Inn Library, to be verbatim the same. Atkins's note of the Judgment

was probably furnished by Mr. Justice Burnett.

(m) See Peter v. Russell, 2 Vern. 726. Towle v. Rand, 2 Bro. C. C. 650. Plumb v. Fluit, 2 Anstr. 432. and particularly Evans v. Bicknell, 6 Ves. 190; see also Barnett v. Weston, 12 Ves. 133.

(n) See Evans and Bicknell, 6 Ves. 174, and what is said in Clifford v. Brooke, 13 Ves. 132. (0) Berrisford v. Milward, 2 Atk. 49. S. C. Barn. 49. (p) Cowp. 395.

Sale by auction, a Vendor employs a person to bid for him up to a certain price, with a view to prevent a Sale under that price, this is not to be considered as fraudulent, nor can a Purchaser, on such account, refuse a specific performance of his Purchase (q). But if a person is employed, not merely with a view to prevent a Sale at an under-value, but to take advantage of the eagerness of Bidders to screw up the price, such conduct, it seems, is considered as fraudulent (r). In preceding cases it was held that where all the Bidders at an Auction, except a Purchaser, are merely puffers, the Sale is fraudulent against such Purchaser; but where there are any real bidders who bid against each other, the bidding of the Puffers would not render the Sale invalid (s).

It is a very old doctrine, that where a Deed is destroyed or concealed by the Defendant, relief may be obtained in Equity (t).

If a Will, by which a Personal Legacy is given,

(q) Bramley v. Alt, 3 Ves. 620. Conolly v. Parsons, 3 Ves. 625, n. a. ; and see what is said in Twining v. Morrice, 2 Bro. C. C. 331. Smith v. Clarke, 12 Ves. 477. By the 28 Geo. 3, c. 17, s. 20, the Owner of Property put up to Sale is exempted from the duties imposed on Sales by the Act, where he, or some person by him authorized, buys in the property; which, as Mr. Fonblanque observes, [1 vol. Treatise of Equity, 227, n. (x)] seems indirectly to have given a sanction to puffing.

(r) Smith v. Clarke, 12 Ves. 483. A demand for attending n Auction to puff the sale of

.

goods has been considered as an unfair transaction, and the demand not sustainable. Walker v. Gascoigne, Dom. Proc. 6 March 1726, noticed in Grounds and Rudiments of Law and Equity, p. 89, and in Lord Harcourt's MS. Tables.

(s) Howard and Castle, 6 T. R. 642. Walker v. Nightingale, 4 Bro. P. C. 193, last edition. Christie v. Attorney-General, 6 Bro. P. C. 520, last edit.

(t) Bates v. Heard, Tot. 66. S. C. 1 Dick. 4. Eyton v. Eyton, 2 Vern. 380. S. C. Prec. Chan. 116; and 1 Bro. P. C. 151. 2 Vern. 561. 3 Atk. 359. 1 Vez. 387. Hob. 109.