communicate to the other; nor does it matter whether the omission is deliberate, or proceeds from mere error of judgment or inadvertence (a). Thus a medical attendant who makes with his patient a contract in any way depending on the length of the patient's life is bound not to keep to himself any knowledge he may have professionally acquired, whether by forming his own opinion or by consulting with other practitioners, as to the probable duration of the life (b). Perhaps the only safe way, and certainly the best, is to avoid such contracts altogether. In Grosvenor v. Sherratt (c), where a mining lease had been granted by a young lady to her brother-in-law (the son of her father's executor) and uncle, at the inducement of the said executor," in whom she placed the greatest confidence," it was held that it was not enough for the lessees to show that the terms of the lease were fair; they ought to have shown that no better terms could possibly have been obtained; and as they failed to do this, the lease was set aside (d). This comes very near to the case of an agent dealing on his own account with his principal, when "it must be proved that full information has been imparted, and that 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 (e). The same rules apply to an executor who himself becomes the purchaser of part of his testator's estate (ƒ). But this obligation of agents and trustees for sale appears (as we have already considered it, p. 228 above) to be incidental to the special nature of their employment, and to be a duty founded on contract rather than one imposed by (a) Molony v. Kernan, 2 Dr. & W. at p. 39. (b) Popham v. Brooke, 5 Russ. 8. (c) 28 Beav. 659, 663. (d) This is an extreme case. The Indian Contract Act, s. 16 (see Appendix to this chapter) does not seem to go so far. It does make it the duty of a contracting party in loco parentis to the other to disclose all material facts: "A. sells by auction to B. a horse which A. knows to be unsound. A. says nothing to B. about the horse's 154. (f) Baker v. Read, 18 Beav. 398; where however relief was refused on the ground of 17 years' delay. 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 (a). ments ex favoured. It must not be forgotten that the suspicion with which Family dealings between parents and children presumably still under arrangeparental influence are regarded by courts of equity is to a certain ceptionally 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 rights, if equal on both sides, may not avail to impeach the transaction (). 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" (c). It must be observed that the rules concerning gifts, or transactions in the form of contract which are substantially gifts, 597, 620. See also Wallace V. Wallace, 2 Dr. & W. 452, 470; Bellamy v. Sabine, 2 Ph. 425, 439: 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. L L 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 (a). 3. Relations between the parties from which influence has influence been presumed. Relations from which presumed. Cases analogous to parent and child. It would be useless to attempt an exact classification of 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 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. 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. (Cooke v. Lamotte, 15 Beav. 234, was decided independently of the relation of aunt and nephew between the parties, on the ground that the donee failed to show that the nature and effect of the act of bounty were fully understood by the donor). Distant relationship by marriage: the donor old, infirm, and his soundness of mind doubtful; great general confidence in the donce, who was treated by him as a son: Steed v. Calley, (a) Beanland v. Bradley, 2 De G. & Sm. 339. PRESUMPTION OF INFLUENCE IN PARTICULAR INSTANCES. 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. Prowl, 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." 515 Cases analogous B. Positions analogous to that of solicitor. Certificated conveyancer acting as professional adviser: to solicitor Rhodes v. Bate, 1 Ch. 252. Counsel and confidential adviser: and client. Broun v. Kennedy, 33 Beav. 133, 148, 4 D. J. S. 217. Confidential agent substituted for solicitors in general manage ment of affairs: Huguenin v. Baseley, 14 Ves. 273 (a). 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. (a) A fortiori, where characters of steward and attorney are combined: Harris v. Tremenheere, 15 Ves. 34. A flagrant case is Baker v. Loader, 16 Eq. 49. As to a land agent purchasing or taking a lease from his principal, see also Molony v. Kernan, 2 Dr. & W. 31; Lord Selsey was v. Rhoades, 2 Sim. & St. 41,1 Bligh 1. Spiritual influence: mixed of the cases. Clark, 15 Beav. 595, 603, somewhat less weight appears to be It is said that influence would be presumed as between character a clergyman or any person in the habit of imparting religious instruction and another person placing confidence in him: Dent v. Bennett, 7 Sim. at 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 (u). In the former case 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 (). 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. 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. (a) In Lyon v. Home the evidence appears to have been in a very unsatisfactory condition, and on many particulars to have led to no definite conclusion: the case is therefore |