Tt' is upon this enactment of the law that the plaintiffs must rely in this case, for unless they can successfully impeach the alienation under the Declaration of Trust in favour of the third defendant they fail entirely establish any interest of their own in the Trust Fund, What then, it inay first be asked, are the alleyed facts constituting their cause action? What are the facts material to be proved to entitle the plaintiffs to succced—the facts which the defen. dants Would have a right to traverse? These alleged facts appear fo be three in number, Firstly, the plaintiffs must allege and prove that they are creditors of the deceased and "persons prejudiced." If they are merely the deceased's personal representatives and not his creditors they will have no more right to the alienation under the Declaration of Trust in favour of the third defen dant than the deceased himself would have had in his lifetime. Secondly. the plaintiffs must allege and prove that the deceased made a voluntary "conveyance of property"; in. other words, that the alienation under the Declaration of Trust in favour of the third defendant either was not: made for valuable consideration or upon yood consideration, or that the third defendant was privy to the fraud. 'Thirdly, the plaintiffs must allege and prove that such voluntary conveyance Of property was made by the deceased "with intent to. defraud creditors." It seems {o me that these three alleged facts constitute the plaintiffs' cause of action, When then, it may next be asked, did this cause of action "accrue"? When did the latest fof such facts "happen." No dispute fuses as to the Declaration of Trust. The alienation thereunder in favour of the third defendant "happened" on June 13, 1911; and if it be true that the document was executed by the deceased with an intent to defraud creditors, then such intent must also have "happened" on that date. As regards the debts owing by the deceased to the plaintiffs 1 have no evidence before me. 'There nothing to indicate whether these debis were owing to the plaintifis on Sune 13, 1911, or were incurred subsequently thereto, Tt Is clear, however, that the plaintiffs, if they are now' creditors, must have become such mot Tater than the Ware of the deceased's death. It follows, in my opinion, that the Tntest of the alleged facts "happened," and that this cause of action acertied, not Inter than September 16. 1918. 'I do not consider that the death of Miss Jane MeGregor on September 23, 1936, affected the legal position, for the plaintiffs' cause of action" was the game in her lifetime os it is now. Her death merely Introduced a new remedy, not a new cause of action: for the' cause of action rested upon the original debts owing by the deceased 10 the plaintiffs, (Vide, In re Benzon, 1914,2 Eh. 68, 75.) then the plaintiffs' cause of action accrued not later than Septem ber 16, 1913, the only question remaining is from what date time regan to run against them. It has been laid down that the right given {o creditors by Section 172 of the Taw of Property Act, 1925 Cor the Sintute 18 Elizabeth c. 5) to have fraudulent alienations set aside so far fas is necessary to satisfy their claims, hheing -n Tegal right, is not lost. by their delay in enforcing it so long as their debts ure not themselves barred under the Statutes of Limitation. (Re Maddever, Three Towns Bay ing Ca, v, Maddever, 1884, 27 Eh. D. 528), Tt seems to follow quite clearly from that decision that if the debts themselves are statute barred, the right fiven to creditors by the Section is lost. It may be that in the present notion It would be necess-to apply the equitable principle, fo" which Ihave already voterred. that when once fraud is established the rights of the defrauded party ara not affected by the Statutes of Limitation so long as he remains, without tiny fault of his own, In ignorance of the fraud, It seems unnecessary, however, fo decide that point here. 'The plaintiffs admit that they had knowledge of all' the material facts als long ago us January 1915, and it matters not now whether time besan to run against them from that date oF from the earlier date, In either case their debts are statute barred and the right given to them under the Section is consequently lost.
For these reasons T must decide that the plaintiffs' alleged right of action is statute borred: and, as this decision substantially diseases of' the whole action, the latter, in my judgment, must stand dismissed.
Text read from the printed page and cleaned; old type leaves the occasional error.