Money

paid under circum

sion re

back.

of authority to pledge the husband's credit was effectually excluded, and the plaintiff could not recover (a).

The narrowness of the common law doctrines above stated is considerably mitigated in practice, for when money has been stances of paid under circumstances of practical compulsion, though not compulamounting to duress, it can generally be recovered back. This coverable is so when the payment is made to obtain the possession of property wrongfully detained (b); and the property need not be goods for which the owner has an immediate pressing necessity, nor need the claim of the party detaining them be manifestly groundless, to make the payment for this purpose involuntary in contemplation of law (c). So it is where excessive fees are taken under colour of office, though it be usual to pay them (d); or where an excessive charge for the performance of a duty is paid under protest (e). The person who actually receives the money may properly be sued, though he receive it only as an agent (ƒ). The case of one creditor exacting a fraudulent preference from a debtor as the price of his assent to a composition (1) is to a But on the certain extent analogous. But in all these cases the foundation ground not of the right to recover back the money is not the involuntary character of the payment in itself, but the fact that the party receiving it did no more than he was bound to do already, or considera- something for which it was unlawful to take money if he chose to do it, though he had his choice in the first instance. Such payments are thus regarded as made without consideration. The legal effect of their being practically involuntary, though important, comes in the second place; the circumstances explain and excuse the conduct of the party making the payment. Similarly in the kindred case of a payment under mistake the actual foundation of the right is a failure of consideration, and ignorance of material facts accounts for the payment having been made. The common principle is that if a man chooses to give

of coercion

in itself but of

failure of

tion.

(a) Qu. whether in any case he could have recovered without showing that the wife had repudiated the arrangement.

(b) Wakefield v. Newbon, 6 Q. B. 276, 280, 13 L. J. Q. B. 258.

(c) Shaw v. Woodcock, 5 B. & C. 73. (d) Dew v. Parsons, 2 B. & Ald. 562; Stecle v. Williams, 8 Ex. 625,

22 L. J. Ex. 225.

(e) Parker v. G. W. Ry. Co. 7 M. & Gr. 253, 292. And see other authorities collected in notes to Marriott v. Hampton, 2 Sm. L. C.

(f) Steele v. Williams, supra. (g) Atkinson v. Denby, 6 H. & N. 778, in Ex. Ch. 7 ib. 934, 31 L. J. Ex. 362. Supra, Ch. VI., p. 306.

away his money, or to take his chance whether he is giving it away or not, he cannot afterwards change his mind; but it is open to him to show that he supposed the facts to be otherwise or that he really had no choice. The difference between the right to recover money back under circumstances of this kind and the right to rescind a contract on the ground of coercion is further shown by this, that an excessive payment is not the less recoverable if both parties honestly supposed it to be the proper payment (). We therefore dwell no farther on this topic, but proceed to consider the more extensive doctrines of equity.

II. The equitable doctrine of Undue Influence.

doctrine

In equity there is no rule defining inflexibly what kind or The amount of compulsion shall be sufficient ground for avoiding a equitable transaction, whether by way of agreement or by way of gift. of Undue The question to be decided in each case is whether the party was a free and voluntary agent (b).

Any influence brought to bear upon a person entering into an agreement, or consenting to a disposal of property, which, having regard to the age and capacity of the party, the nature of the transaction, and all the circumstances of the case, appears to have been such as to preclude the exercise of free and deliberate judgment, is considered by courts of equity to be undue influence, and is a ground for setting aside the act procured by its employment.

Influence.

of the

influence

in detail

"The principle applies to every case where influence is acquired Generality and abused, where confidence is reposed and betrayed" (c). principle. And if it is once established that a person who stands in a posi- Exercise of tion of commanding influence towards another has obtained an need not advantage from him while in that position, it will be presumed, be proved in the absence of rebutting proof, that the advantage was obtained when by means of that influence and it is not necessary for the party relation of complaining to show the precise manner in which the influence influence was exertel. Indeed one chief object of the rules which will estab presently be discussed is to prevent those who unduly obtain benefits from persons under their dominion from making them

(a) Dew v. Parsons, 2 B. & Ald.

562.

(b) Williams v. Bayley, L. R. 1

H. L. 200, 210.

(c) Per Lord Kingsdown, Smith v. Kay, 7 H. L. C. at p. 779.

habitual

lished.

General influence presumed from certain

relations.

selves safe by the secrecy of the particular transaction (). It is very possible that the circumstances would in many such cases, if they could be fully brought out, amount to proof of actual compulsion or fraud: so that it may perhaps be said that undue influence, as the term is used in courts of equity, means an influence in the nature of compulsion or fraud, the exercise of which in the particular instance to determine the will of the one party to the advantage of the other is not specifically proved, but is inferred from an existing relation of dominion on the one part and submission on the other (b). Given a position of general and habitual influence, its exercise in the particular case is presumed.

But again, this habitual influence may itself be presumed to exist as a natural consequence of the condition of the parties, though it be not actually proved that the one habitually acted as if under the domination of the other. There are many relations of common occurrence in life from which "the Court presumes confidence put [i.e. in the general course of affairs] and influence exerted" [.e. in the particular transaction complained of] (c).

Persons may therefore not only be proved by direct evidence of conduct, but presumed by reason of standing in any of these suspected relations, as they may be called, to be in a position of commanding influence over those from whom they take a benefit. In either case they are called upon to rebut the presumption that the particular benefit was procured by the exertion of that influence, and was not given with due freedom and deliberation. They must "take upon themselves the whole proof that the thing is righteous" (d). We shall here observe that this, like several other of the peculiar rules of equity, is not a rule of substantive law but a rule of evidence. The distinction is well shown in the arrangement of the Anglo-Indian codes.

(a) See Dent v. Bennett, 4 My. & Cr. at p. 277.

(b) In Boyse v. Rossborough, 6 H. L. C. at p. 48, it is said that, taking the words in a wide sense, all undue influence may be resolved into coercion and fraud: but the case there considered is that of a will, in which undue influence has a more restricted meaning than in transactions inter vivos: see note (c),

p. 506, infra.

(c) Per Lord Kingsdown, Smith v. Kay, 7 H. L. C. 750, 779.

(d) Gibson v. Jeyes, 6 Ves. 266, 276. The like burden of proof is cast upon those who take any benefit under a will which they have themselves been instrumental in preparing or obtaining: Fulton v. Andrew, L. R. 7 H. L. 448, 472.

We find the rule of law laid down in the Contract Act (see Appendix G at end of this chapter). But the rule of evidence properly finds its place, not here, but in the Evidence Act (I. of 1872, s. 111):

Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

"Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed" (a).

"Nothing can be more important to maintain" (it has been recently said) "than the jurisdiction, long asserted and upheld by the Court, in watching over and protecting those who are placed in a situation to require protection as against acts of those who have influence over them, by which acts the person having such influence obtains any benefit to himself. In such cases the Court has always regarded the transaction with jealousy" () ―a jealousy almost invincible, in Lord Eldon's words (c).

"In equity persons standing in certain relations to one another, such as parent and child (d), man and wife (e), doctor and patient (ƒ),

(a) Per Lord Chelmsford, Tate v. Williamson, 2 Ch. 55, 61.

(b) Per Lord Hatherley, Turner v. Collins, 7 Ch. 329, 338.

(c) Hatch v. Hatch, 9 Ves. at p. 296.

(d) Archer v. Hudson, 7 Beav. 551; Turner v. Collins, 7 Ch. 329.

(e) Lord Hardwicke's remarks in Grigby v. Cox, 1 Ves. sen. 517 (though not the decision, for it was not a gift but a purchase, and apparently there was no evidence to bear out the charge of collusion) and the decision in Nedby v. Nedby, 5 De G. & Sm. 377, seem contra; but see Cobbett v. Brock, 20 Beav. 524; Page v. Horne, 11 Beav. 227; showing

that there is a fiduciary relation between persons engaged to be married; and Coulson v. Allison 2 D. F. J. 521, 524, the like as to persons living together as man and wife though not lawfully married. In all these cases the burden of proof was held to be on the man (as holding under such circumstances a position of influence) to support the transaction. It may not be so however in a case of mere illicit intercourse : see Farmer v. Farmer, 1 H. L. C. 724, 752.

(f) Dent v. Bennett, 4 My. & Cr. 269; Ahearne v. Hogan, Dru. 310; s.v. Blackie v. Clark, 15 Beav at p. 603.

Rules in

attorney and client (a), confessor and penitent, guardian and ward (b), are subject to certain presumptions when transactions between them are brought in question; and if a gift or contract made in favour of him who holds the position of influence is impeached by him who is subject to that influence, the courts of equity cast upon the former the burthen of proving that the transaction was fairly conducted as if between strangers, that the weaker was not unduly impressed by the natural influence of the stronger, or the inexperienced overreached by him of more mature intelligence" (c).

Lord Brougham in Hunter v. Atkins () made the following Hunter v. distinctions between the various kinds of relations as affecting the burden of proof in respect of the validity of the act.

Atkins.

(A). If it is not shown that special confidence was reposed in the person taking the benefit, specific proof is required of incapacity, fraud, [or compulsion] vitiating the particular transaction.

(B). If a confidential relation is proved (not being one of those next mentioned) proof is required of circumstances making it likely that some advantage was taken of such relation [though not of the precise circumstances under which the act impeached took place].

(c). But if the party taking the benefit stands towards the other "in any of the known relations of guardian and ward, attorney and client, trustee and cestui que trust, &c. [this &c. is important, as will immediately appear] then in order to support the [act] he ought to show that no such advantage was taken . . . the proof lies upon him that he has dealt with the other party, the client, ward, &c., exactly as a stranger would have done."

If it is asked, what are the classes of persons who fall within this last description, the answer is that as the Court of Chancery

(a) Gibson v. Jeyes, 6 Ves. 266; Holman v. Loynes, 4 D. M. G. 270; Gresley v. Mousley, 4 De G. & J. 78, 94.

(b) Hatch v. Hatch, 9 Ves. 292; Maitland v. Irving, 15 Sim. 437.

(c) Per Lord Penzance, Parfitt v. Lawless, L. R. 2 P. & D. 462, 468. It is to be noted that this does not apply to wills, as to which undue influence is never presumed: ib.; Boyse v. Rossborough, 6 H. L. C. 2, 49; Hindson v. Weatherill, 5 D. M. G.

301, 311, 313: though a disposition by will may be set aside as well as an act inter vivos when undue influence is actually proved: but then, it seems, the influence must be such as to " overpower the volition without convincing the judg ment:" Hall v. Hall, L. R. 1 P. & D. 482. See Walker v. Smith, 29 Beav. 394, where between the same parties gifts by will were supported and a gift inter vivos set aside.

(d) 3 My. & K. 113, 134,