ever, the trust will be executed by the Court until the estate be actually sold (p), and the author of the settlement, if he contract for the sale, cannot himself file a bill to enforce the specific performance (9).

Chattels personal (in which respect they differ from chattels real (r)) are not within the statute of 27 Eliz. c. 4, relating to purchasers, and therefore a settlement of chattels personal cannot be defeated by a subsequent sale (s). But the statute of 13 Eliz. c. 5, extends to every description of personalty, and, therefore, a settlement of chattels, whether real or personal, by one indebted at the time will be void as against creditors (t).

As every agreement under hand and seal carries a consideration upon the face of it, and will support an action at law, the inference has not unfrequently been drawn, that equity, at least in former times, would have specifically executed such an instrument in favour of volunteers. But the doctrine is at once contradicted by the circumstance, that equity would not have enforced a covenant to stand seised to the use of a stranger; and, if we examine the authorities, we shall find there is very little ground in support of the position. In Wiseman v. Roper (u) the covenant was entered into for the purpose of reconciling family differences--a consideration always held to be good. Beard v. Nutthall (x) was the

(p) Pulvertoft v. Pulvertoft, 18 Ves. 94.

(q) Johnson v. Legard, Turn. & Russ. 294; Smith v. Garland, 2 Mer. 123.

(r) Saunders v. Dehew, 2 Vern. 272, second note.

(8) Jones v. Croucher, 1 Sim. & Stu. 315; this case cites also the

authority of Sir W. Grant in Sloane v. Cadogan, Append. to Vend. and Purch., but the dictum does not appear.

(t) Fletcher v. Sidley, 2 Vern. 490; Taylor v. Jones, 2 Atk. 600. (u) 1 Ch. Re. 158. (x) 1 Vern. 427.

case of a bond from a husband to the wife, which is not an agreement to do a future act, but the perfect creation of a present debt. In Husband v. Pollard (y) a lease was assigned to a volunteer with a covenant to renew, and a court of equity compelled the execution of the covenant as incidental to the lease. In other cases the covenant has been enforced in order to avoid circuity, inasmuch as the trustees, with whom the covenant was entered into, might have recovered at law, not merely nominal damages, but the full value of the estate (z). At all events, it is well settled at the present day, that a voluntary covenant will not be specifically executed (a).

It is said, that, where the trust is imperfectly declared, the Court will not necessarily insist upon a valuable consideration, but will also act upon meritorious consideration, as payment of debts, or provision for a wife or child.

The covenant to stand seised to uses, and the jurisdiction of the Court in supplying surrenders, and aiding the defective execution of powers, have generally been referred to as establishing, or at least countenancing, this doctrine.

As regards the covenant to stand seised to uses, it is evident that mere meritorious consideration was not a sufficient ground to attract the jurisdiction of the Court; for no use would have arisen in favour of a wife or child, unless there had been a covenant. "There are

(y) Cited Randal v. Randal, 2 P.

W. 467.

(z) Vernon v. Vernon, 2 P. W. 594; Goring v. Nash, 3 Atk. 186, 2nd ground; S. C. cited 1 Ves. 513; Stephens v. Trueman, 1 Ves. 73.

(a) Fursaker v. Robinson, Pr. Ch. 475; Evelyn v. Templar, 2 B. C. C. 148; Colman v. Sarel, 3 B. C. C. 12; and see Pulvertoft v. Pulvertoft, 18 Ves. 93.

several ways in the law," said Lord Chief Justice Holt, "for declaring of uses, whether upon transmutation of possession or without it. If a use be declared upon transmutation of possession, as in a fine or feoffment, it is sufficient for the party on the transmutation to declare, that the use shall be to such a party, and of such an estate; but if a use arise without transmutation of possession, the use then does not arise by virtue of any declaration or appointment, but there must be some precedent obligation to oblige the party declaring the use, which must be founded on some consideration; for a use, having its foundation generally on grounds of equity, could not be relieved in Chancery without transmutation of possession, or an agreement founded on a consideration; and therefore, if bargain and sale were made of a man's lands, on the payment of the money the use would have arisen without deed by parol; but, if the use was in consideration of blood, then it could not arise by parol agreement without a deed, because that agreement was not an obliging agreement-it wanted a consideration, and therefore, to make it an obliging agreement, there was necessity of a deed (b)." Thus, if equity be governed by the strict analogy of uses, the Court cannot act upon meritorious consideration where the contract is by parol; and though, where the agreement is under seal, the argument of analogy applies, yet it follows not, that equity will now raise a trust, because formerly it would have created a use a bargain and sale for 5s. consideration still operates by way of conveyance to transfer the estate; but, should the bargain and sale be void as such for want

(b) Jones v. Morley, 12 Mod. 161.

of an indenture, or an indenture duly inrolled, it could not be argued, that the agreement at the present day would be specifically executed upon the basis of a trust. Besides, if equity were governed by the analogy of uses, the covenant would form a lien upon the estate, and convert the settlor into a trustee; but Sir W. Grant, in a case that will be cited presently, was clearly of opinion, that the contract could not be enforced against the settlor himself (c); and, where a person conveyed copyholds by deed, and the grantee filed a bill against the settlor's heir, his Honour decided, that the plaintiff was not entitled to call upon the heir as a trustee to surrender, but directed an inquiry whether the heir was provided for (d): and of the same opinion was Lord Hardwicke in a similar case of freeholds (e). It may further be remarked, that, if the covenant to stand seised to uses were now to regulate the administration of trusts, there would be no ground for extending the relief to creditors, who, however, it is admitted on all hands, are equally entitled to the benefit of meritorious consideration. And the covenant to stand seised to uses extended, we must remember, not only to a wife and child, but also to brothers, nephews, and cousins; but who, at the present day, would think of admitting the same latitude in the execution of a trust?

With respect to the jurisdiction of the Court in supplying surrenders of copyholds, the principle upon which the relief is founded appears to be this: that, as the heir was never meant by the law to take otherwise than

39.

(c) Antrobus v. Smith, 12 Ves.

(d) Rodgers v. Marshall, 17

Ves. 294.

(e) Goring v. Nash, 3 Atk. 186; see 188, 192.

in default of the ancestor's will, if the ancestor manifest any intention in favour of a meritorious object, the Court will not suffer the mere want of form to carry a benefit to the representative. "I have looked," said Lord Alvanley, "at all the cases I can find, upon what principle this Court goes in supplying a defect. It is this-whenever a man, having power over an estate, whether ownership or not, in discharge of moral or natural obligation shews an intention to execute such power, the Court will operate upon the conscience of the heir to make him perfect this intention. This is not to be confounded with the case of the heir's being disinherited by a will of freeholds not duly executed; there is no will at all; the Court cannot see there is such an instrument; but whenever there is such a power, it has been executed (f)."

The ground, upon which the Court aids the defective execution of powers, will be found upon examination to be precisely that upon which it supplies the surrenders of copyholds. The power, to the extent to which it may be exercised, is regarded in equity as part of the dominion as a portion of the actual estate; and the donee of it is pro tanto the bona fide owner of the property, while the remainderman is a quasi heir, who takes in default of the donee's disposition (g). The only distinction between an actual heir and the remainderman is this, that the former is so constituted by course of law, while the latter is a quasi heir specially appointed by the will of the settlor. Thus, in aiding the defective execution

(f) Chapman v. Gibson, 3 B. C. C. 230; and see Ellis v. Nimmo, Lloyd & Goold, 341,

348.

(g) See Holmes v. Coghill, 12 Ves. 213; Coventry v. Coventry, at the end of Francis's Maxims of Equity.