of the marriage-agreement."

On the marriage of

Sir Henry Chancey's son with Sir Richard Butler's daughter, it was agreed, that the young couple should have so much for present maintenance. The son privately agrees with his father to release part. The agreement was set aside, though the son, as was urged, gave nothing but his own, and might dispose of his present maintenance as he thought fit.f

without it, must be

I promise a man a sum not to rob me. Equity will relieve me, by denying action for payment, and by affording me an action for recalling the money, if paid. The latter action is, in the Roman law, styled, Condictio ob injustam causam. To take money for doing what I am bound to do extortion: I hold the money sine justa causa, and ought, in conscience, to restore it. Thus it is extortion for a tutor to take a sum from his pupil's mother for granting a factory to her. And it was found extortion in a man to take a bond from one whose curator he had been, before he would deliver up the family-writings.§

A bargain of hazard with a young heir, to have double or treble the sum lent, after the death of his father, or other contingency, is not always set aside. in equity; for, at that rate, it would be difficult to deal with an heir during the life of his ancestor. But if such bargain appear very unequal, it is set aside, upon payment of what was really lent, with

Abridg. cases in equity, chap. 13, sect. E, § 2.

+ Abrid. cases in equity, chap. 13, sect. E, § 3.

Durie, penult. Feb. 1639, Mushet contra Dog.

Nicolson, (turpis causa), July 24, 1634, Rossie contra her

curators.

interest.* One entitled to an estate after the death of two tenants for life, takes £350 to pay £700 when the lives should fall, and mortgages the estate as a security. Though both the tenants for life died within two years, yet the bargain being equal, no relief was given against it. A young man, presumptive heir to an estate-tail of £800 yearly, being cast off by his father, and destitute of all means of livelihood, made an absolute conveyance of his remainder in tail to I. S. and his heirs, upon consideration of £30 paid him in money, and a security for £20 yearly during the joint lives of him and his father. Though the father lived ten years after this transaction, and though I. S. would have lost his money had the heir died during his father's life, yet the heir was relieved against the conveyance.‡ The plaintiff, a young man, who had a narrow allowance from his father, on whose death a great estate was to descend to him in tail, having, in the year 1675, borrowed £1,000 from the defendant, became bound, in case he survived his father, to pay the defendant £5,000 within a month after his father's death, with interest; but that, if he did not outlive his father, the money should not be repaid. After the father's death, which happened anno 1679, the plaintiff brought his bill upon the head of fraud and extortion, to be relieved of this bargain, upon repayment of the sum borrowed, with interest. The cause came first before the Lord Nottinghame, who decreed the bargain to be effectual. But, upon a rehearing before Lord Chancellor Jeffreys, it was in

Abridg. cases in equity, chap. 13, sect. G, § 1. note.

+ Abridg. cases in equity, chap. 32, sect. 1. § 2.

+ Ibid. § 1.

sisted, that the clause freeing the the plaintiff from the debt, if he died before his father, made no difference; for in all such cases, the debt is lost of course, upon predecease of the heir of entail; and, therefore, that this clause, evidently contrived to colour a bargain, which, to the defendant himself, must have appeared unconscionable, was in reality a circumstance against him. Though in this case there was no proof of fraud, nor of any practice used to draw the plaintiff into the bargain; yet, because of the unconscionableness of the bargain, the plaintiff was relieved against it.* In the year 1730, the Earl of Peterborough, then Lord Mordaunt, granted bond at London, after the English form, to Dr. William Abercromby, bearing, "That £210 was then advanced to "his lordship; and that, if he should happen to sur"vive the Earl of Peterborough, his grandfather, he "was to pay £840 to the doctor, two months after "the Earl's death; and if he, the Lord Mordaunt, "died in the lifetime of the Earl, the obligation was "to be void." Upon the death of the Earl of Peterborough, which happened about five years after the date of the bond, an action was brought in the Court of Session against the Lord Mordaunt, now Earl of Peterborough, for payment; and the court, upon authority of the case immediately foregoing, unanimously judged, that the bond should only subsist for the sum actually borrowed, with the interest.†

2. Vernon 14, Berny contra Pitt.

+ July 13, 1745, Dr. William Abercromby, contra Earl of Peterborough.

SECT. IV..

A man moved to act unknowingly against his interest by fraud, deceit, or other artificial means.

Ir is thought, that a court of common law, seldom interposes in any of the cases that come under the section immediately foregoing; and the reason is, that whether a man be led against his own interest by a violent temptation, or by extortion, there is still left to him in appearance a free choice. But with respect to the matters that belong to the present section, a man is led blindly against his own interest, and has no choice. This species of wrong, therefore, being more flagrant, is not neglected by courts of common law. It is accordingly laid down as a general rule in the English law, "That without the "express provision of an act of parliament, all de"ceitful practices in defrauding another of his known " right, by means of some artful device, contrary to "the plain rules of common honesty, are condemned

66

by the common law, and punished according to the "heinousness of the offence." Thus the causing an illiterate person to execute a deed to his prejudice, by reading it to him in words different from those in the deed, is a fraud, which a court of common law will redress, by setting the deed aside. The same where a woman is deceived to subscribe a warrant of attorney for confessing a judgment, understanding the writing to be of a different import. In selling

New Abridgment of the Law, vol. 2, p. 594. +1. Sid. 431.

a house, it being a lie to affirm that the rent is £30, instead of £20, by which the purchaser is moved to give a greater price than the house is worth; this loss will be repaired by a court of common law, though the purchaser, by being more circumspect, might have prevented the loss.

In general, every covenant procured by fraud, will be set aside in a court of common law. But with regard to covenants or agreements disregarded at common law, there can be no relief but in a court of equity. Thus a policy of insurance was set aside upon fraud, by a bill in chancery.

We next proceed to enquire, whether every deceit. ful practice to impose upon others comes under common law. Fraud consists in my persuading a man who has confidence in me, to do an act as for his own interest, which I know will have the contrary effect. But in whatever manner a man may be deceived or misled, yet if he was not deceived by relying upon the friendship and integrity of another, it is not a fraud. Fraud, therefore, implies treachery, without which no artifice nor double dealing can be termed fraud in a proper sense. But there are double-faced circumstances without number, and other artful means, calculated to deceive, which do not involve any degree of treachery. Where a man is deceived by such artifice, it must in some measure be his own fault; and bystanders are more apt to make him the object of their ridicule than of their sorrow: for which reason, frauds of this inferior nature have been overlooked by common law. But as every attempt to deceive another to his prejudice is criminal in conscience, it is the duty of a court of equity to repress such deceit, by * 2. Vernon, 206.