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the agreement has been entered into with perfect good faith" (a). Nor is the agent's duty altered though the proposal originally came from the principal and the principal shows himself anxious to complete the transaction as it stands (b). The same rules apply to an executor who himself becomes the purchaser of part of his testator's estate (c). But this obligation of agents and trustees for sale appears (as we have already considered it, p. 261 above) to be incidental to the special nature of their employment, and to be a duty founded on contract rather than one imposed by any rule of law which guards the freedom of contracting parties in general.

The duty cast upon a solicitor, or other person in a like position of confidence, who deals on his own account with his client, of disclosing all material circumstances within his knowledge, does not however bind him to communicate a "speculative and consequential" possibility which may affect the future value of the subject-matter of the transaction, but which is not more in his own knowledge than in the client's (d).

Family It must not be forgotten that the suspicion with which arrange- dealings between parents and children presumably still ceptionally under parental influence are regarded by courts of equity is to a certain extent counteracted by the favour with which dispositions of the kind known as family arrangements are treated. In many cases a balance has to be struck between these partly conflicting presumptions. "Transactions between parent and child may proceed upon arrangements between them for the settlement of property, or of their rights in property in which they are interested. In such cases this Court regards the transactions with favour. It does not minutely weigh the considerations on one side or the other. Even ignorance of

(a) See note (b) p. 579.

(b) Dally v. Wonham, 33 Beav.

154.

(c) Baker v. Read, 18 Beav. 398; where however relief was refused

on the ground of seventeen years' delay.

(d) Edwards v. Meyrick, 2 Ha. 60, 74; Holman v. Loynes, 4 D. M. G. at p. 280.

rights, if equal on both sides, may not avail to impeach the transaction (a). On the other hand, the transaction. may be one of bounty from the child to the parent, soon after the child has attained twenty-one. In such cases this Court views the transaction with jealousy, and anxiously interposes its protection to guard the child from the exercise of parental influence" (b).

It must be observed that the rules concerning gifts, or transactions in the form of contract which are substantially gifts, from a son to a father, do not apply to the converse case of a gift from an ancestor to a descendant: there is no presumption against the validity of such a gift, for it may be made in discharge of the necessary duty of providing for descendants (c).

3. Relations between the parties from which influence Relations has been presumed.

from which influence

It would be useless to attempt an exact classification of presumed. that which the Court refuses on principle to define or classify but it may be convenient to follow an order of approximate analogy to the cases of well-known relations in which the presumption is fully established.

:

A. Relations in which there is a power analogous to Cases that of parent or guardian.

Uncle in loco parentis and niece: Archer v. Hudson, 7 Beav. 551; Maitland v. Irving, 15 Sim. 437. Step-father in loco parentis and step-daughter: Kempson v. Ashbee, 10 Ch. 15; Espey v. Lake, 10 Ha.

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(a) Perhaps it is safer to say that the "almost invincible jealousy' of the Court is reduced to " a reasonable degree of jealousy:" cp. Lord Eldon's language in Hatch v. Hatch, 19 Ves. at p. 296, and T'weddell v. Tweddell, Turn. & R. at p. 13. On the question of consideration see Williams v. Williams, 2 Ch. 294, 304.

(b) Baker v. Bradley, 7 D. M. G. 597, 620. See also Wallace v. Wallace, 2 Dr. & W. 452, 470; Bellamy v. Sabine, 2 Ph. 425, 439;

Hoghton v. Hoghton, 15 Beav. 278,
300; and on the doctrine of family
arrangement not applying when a
son without consideration gives up
valuable rights to his father, Savery
v. King, 5 H. L. C. at p. 657. A
sale by a nephew to his [great]
uncle of his reversionary interest in
an estate of which the uncle is
tenant for life is not a family
arrangement: Talbot v. Staniforth, 1
J. & H. 484, 501.

(c) Beanland v. Bradley, 2 De G.
& Sm. 339.

analogous to parent and child.

Cases

analogous to solicitor

and client.

260. Executor of a will (apparently in a like position) and the
testator's daughter: Grosvenor v. Sherratt, 28 Beav. 659.

Husband of a minor's sister with whom the minor had lived for
some time before he came of age: Griffin v. Deveuille, 3 P. Wms.
131, n.

Two sisters living together, of whom one was in all respects the head of the house, and might be considered as in loco parentis towards the other, though the other was of mature years: Harvey v. Mount, 8 Beav. 439. Brother and sister, where the sister at the age of 46 executed a voluntary settlement under the brother's advice and for his benefit: Sharp v. Leach, 31 Beav. 491.

Husband and wife on the one part, and aged and infirm aunt of the wife on the other: Griffiths v. Robins, 3 Mad. 191.

Distant relationship by marriage: the donor old, infirm, and his soundness of mind doubtful; great general confidence in the donee, who was treated by him as a son: Steed v. Calley, 1 Kee. 620. This rather than the donor's insanity seems the true ground of the case, see p. 644.

Keeper of lunatic asylum and recovered patient: Wright v. Proud, 13 Ves. 136.

There are also cases of general control obtained by one person over another without any tie of relationship or lawful authority: Bridgman v. Green, 2 Ves. Sr. 627, Wilm. 58, where a servant obtained complete control over a master of weak understanding: Kay v. Smith, 21 Beav. 522, affirmed nom. Smith v. Kay, 7 H. L. C. 750, where an older man living with a minor in a joint course of extravagance induced him immediately on his coming of age to execute securities for bills previously accepted by him to meet the joint expenses.

In Lloyd v. Clark, 6 Beav. 309, the influence of an officer over his junior in the same regiment was taken into account as increasing the weight of other suspicious circumstances; but there is nothing in the case to warrant including the position of a superior officer in the general category of "suspected relations."

B. Positions analogous to that of solicitor.

Certificated conveyancer acting as professional adviser: Rhodes v. Bate, 1 Ch. 252. Counsel and confidential adviser: Broun v. Kennedy, 33 Beav. 133, 148, 4 D. J. S. 217.

Confidential agent substituted for solicitors in general management of affairs: Huguenin v. Baseley, 14 Ves. 273 (a).

(a) A fortiori, where characters of steward and attorney are com- . bined: Harris v. Tremenheere, 15 Ves, 34. A flagrant case is Baker

v. Loader, 16 Eq. 49. Cp. Moxon v.
Payne, 8 Ch. 881, where however
the facts are not given in any detail.
As to a land agent purchasing or -

4

A person deputed by an elder relation, to whom a young man applied for advice and assistance in pecuniary difficulties, to ascertain the state of his affairs and advise on relieving him from his debts: Tate v. Williamson, 1 Eq. 528, 2 Ch. 55.

The relation of a medical attendant and his patient is treated as a confidential relation analogous to that between solicitor and client : Dent v. Bennett, 4 My. & Cr. 269; Billage v. Southee, 9 Ha. 534; Ahearne v. Hogan, Dru. 310; though in Blackie v. Clark, 15 Beav. 595, 603, somewhat less weight appears to be attached to it. It does not appear in the last case whether the existence of "anything like undue persuasion or coercion" (p. 604) was merely not proved or positively disproved: on the supposition that it was disproved there would be no inconsistency with the other authorities. For another unsuccessful attempt to set aside a gift to a medical attendant see Pratt v. Barker, Sim. 1, 4 Russ. 507; there the donor was advised by his own solicitor, who gave positive evidence that the act was free and deliberate.

c. Spiritual influence.

Spiritual influence: mixed

cases.

It is said that influence would be presumed as between a clergyman or any person in the habit of imparting religious instruction and character another person placing confidence in him: Dent v. Bennett, 7 Sim. at of the p. 546. There have been two remarkable modern cases of spiritual influence in which there were claims to spiritual power and extraordinary gifts on the one side, and implicit belief in such claims on the other; it was not necessary to rely merely on the presumption of influence resulting therefrom, for the evidence which proved the relation of spiritual confidence also went far to prove as a fact in each case that a general influence and control did actually result: Nottidge v. Prince, 2 Giff. 246; Lyon v. Home, 6 Eq. 655 (a). In the former case at all events there was gross imposture, but the spiritual dominion alone would have been sufficient ground to set aside the gift for the Court considered the influence of a minister of religion over a person under his direct spiritual charge to be stronger than that arising from any other relation (b). There seems to have been also in Norton v. Relly, 2 Eden 286, the earliest reported case of this class, a considerable admixture of actual fraud and imposition.

taking a lease from his principal, see also Molony v. Kernan, 2 Dr. & W. 31; Lord Selsey v. Rhoades, 2 Sim. & St. 41, 1 Bligh 1. In Rossiter v. Walsh, 4 Dr. & W. 485, where the transaction was between an agent and a sub-agent of the same principals, the case was put by the bill (p. 487), but not decided, on the

ground of fiduciary relation. See
p. 579 above.

(a) In Lyon v. Home the evidence
appears to have been in a very un-
satisfactory condition, and on many
particulars to have led to no definite
conclusion: the case is therefore
more curious than instructive.
(b) 2 Giff. 269, 270.

Undue

influence without fiduciary relation. Securities obtained by pres

sure:

The authority of Huguenin v. Baseley, 14 Ves. 273, as to this particular kind of influence, is to be found not in the judgment, which proceeds on the ground of confidential agency, but in Sir S. Romilly's argument in reply, to which repeated judicial approval has given a weight scarcely if at all inferior to that of the decision itself.

4. Circumstances held to amount to proof of undue influence, apart from any continuing relation.

In a case where a father gave security for the amount of certain notes believed to have been forged by his son, the holders giving him to understand that otherwise the son would be prosecuted for the felony, the agreement was set Williams aside, as well on the ground that the father acted under v. Bayley. undue pressure and was not a free and voluntary agent, as because the agreement was in itself illegal as being substantially an agreement to stifle a criminal prosecution (a).

In Ellis v. Barker (b) the plaintiff's interest under a will was practically dependent as to part of its value on his being accepted as tenant of a farm the testator had occupied as yearly tenant. One of the trustees was the landlord's steward, and in order to induce the plaintiff to carry out the testator's supposed intentions of providing for the rest of the family he persuaded the landlord not to accept the plaintiff as his tenant unless he would make such an arrangement with the rest of the family as the trustees thought right. Under this pressure the arrangement was executed: it was practically a gift, as there was no real question as to the rights of the parties. Afterwards the deeds by which it was made were set aside at the suit of the plaintiff, and the trustees (having thus unjustifiably made themselves partisans as between their cestuis que trust) had to pay the costs.

These are the most distinct cases we have met with of a transaction being set aside on the ground of undue influence specifically proved to have been used

(a) Williams v. Bayley, L. R. 1 (b) 7 Ch. 104.

H. L. 200; cp. p. 305 above.

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