such case the Conveyance is set aside on payment of Principal, Interest, and Costs, the defendant being considered as a Mortgagee (~).

The tendency of these determinations to render all Bargains with expectant Heirs very insecure, if not impracticable, seems not to have been considered as operating to prevent its adoption and establishment; but, on the contrary, some Judges have avowed that probable consequence, as being to them a recommendation of the Doctrine (a).

In most of these cases, deceit and illusion on third persons, not parties, nor privy to the fraudulent Agreement, have concurred; the Father, Ancestor, or Relation, from whom was the expectation of the Estate, has been kept in the dark, and the Heir or Expectant has been kept from disclosing his circumstances, and resorting to them for advice which might have tended to his relief and reformation. This misleads the Ancestor, who has been seduced to leave his Estate, not to his Heir or Family, but to a set of artful persons who have divided the spoil beforehand (b).

If, however, a Reversionary Interest be sold by Auction, the Purchaser is not bound to show that he has given the full value (c).

It has also been determined that, if Tradesmen, on various occasions, impose upon an expectant Heir, by selling at extravagant prices, a Court of Equity will relieve; but it might be otherwise if there were only

(z) See Gowland and De Faria, 17 Ves. 23. Bowes v. Heaps, 3 Ves. & Bea. 117. (a) Peacock v. Evans, 16 Vcs. 514, 515.

(b) Chesterfield and Janssen, 2 Ves. 157.

(c) Shelly v. Nash, 3 Madd. Rep. 232.

a single instance of a purchase (d). In some of the cases, a distinction has been taken where the Heir has no maintenance from his Father, and is turned out upon unreasonable displeasure taken by the Father; in which case, if the Bargain is not excessively beyond the proportion of insurances for such risks, such Bargain is allowed to stand, because it is not to supply the luxury and prodigality of the Heir, but to keep him from starving; and since the seller would have lost his money in case the Heir had died during the life of the Father, he ought to have a proportionable benefit for such hazard (e). The Court in relieving an Heir does not consider whether the Estate in expectancy comes to him as heir to his father, and by descent, or from any other relation; but the rule which directs in such case is the necessity that young Heirs are in, for the most part, which naturally lays them open to impositions of this kind. Where an extravagant price is charged for goods sold, and a mortgage is taken to secure it, the Heir may be relieved so far as it stands as a security for the unjust gain; but after it is determined upon a quantum meruit, what was the real worth of the goods, the mortgage will still be binding upon the Heir for so much as is found by the verdict (ƒ). A Post Obit given by an Expectant Heir has been held bad (g); and certainly, he who takes a

(d) See Bill v. Price, 1 Vern. 467. Lamplugh v. Smith, 2 Vern. 77. Whittey v. Price, 2 Vern. 78. Brooke v. Galley, 2 Atk. 35. Freeman v. Bishop, 2 Atk. 39. S. C. in Grounds and Rudiments, &c. p. 278, 9. (e) Sir Robert Jason's case,

Hill, 2 Ch. Cas. 120. Barney and Blake, ib. 136; and see 1 Bro. C. C. 10,

(f) Freeman v. Bishop, 2 Atk. 39. S. C. Barnard 15. and in Grounds and Rudiments, &c. p. 278, 9.

(g) Varnee's case, 2 Freem.

Post Obit has the onus thrown upon him of proving the fairness of the bargain (h); whether such a doctrine was wisely laid down has been doubted, since Usurers are thereby incited to ensure themselves by their terms from the risk of the interference of the Court. Montesquiou (i) observes, that, "Usury increases in Mahometan countries in proportion to the severity of the prohibition. The lender indemnifies himself for the danger he undergoes of suffering the penalty." If on the death of the person upon whose decease the Post Obit is payable, the transaction is, without imposition, confirmed, it cannot be set aside; nor can relief be had, except as to the Penalty (k): for a new Agreement may confirm what was at first a doubtful Bargain, though it could not a void one (1); but if the confirmation is not freely given, if the Party be distressed, or under the influence of the former transaction, or not fully apprized of his rights (n), and that his act will operate as a confirmation (o), it is not an effectual confirmation (p). Confirmations of Deeds are looked upon with jealousy. Where a Post Obit was, from the fear of an Execution, paid, it was not considered as a confirmation, but a re-payment compelled (q).

(h) Evans v. Cheshire, 1803, MS. Bowes v. Jacobs, 28 March 1808. MS.

(i) Spirit of Laws, B. 22. Ch. 19.

(k) Chesterfield v. Janssen, 2 Ves. S. C. 1 Atk. 301.

(See 1 Atk. 354; and see Cole v. Gibbons, 3 P. Wms. 294, and the strong case mentioned ibid. in note (e).

(n) Dunbar v. Tredennick,

2 Ball & Bea. 317. Cann v. Cann, 1 P. Wms. 723.

(0) Murray v. Palmer, 2 Sch. & Lefr. 486.

(p) Crowe v. Ballard, 1 Ves. jun. 215. S. C. 3 Bro. C. C. 117, and S. C. 2 Cox 253; and see Roche v. O'Brien, 1 Ball & Beat. 339; and Shirley v. Martin, mentioned by Lord Chancellor in 1 Ball & Beatty, 355, 6.

(q) Curwin v. Milner, 3 P.

If a Post Obit be given, and the Obligor and Obligee of the Bond die, as well as the person on whose Life it was given, and the Bond has been assigned, it will not be set aside, no proof of imposition appearing (r).

The same protective influence, to prevent Fraud, is exercised in the case of,

IV. Guardian and Ward.

Where a Man acts as Guardian, or Trustee in nature of a Guardian, for an Infant, a Court of Equity is extremely watchful to prevent such person taking any advantage immediately upon his Ward or Cestui que trust coming of age, and at the time of settling his account, or delivering up the Trust; because an undue advantage may be taken (s). It would give an opportunity, either by flattery, or by force, by good usage unfairly meant, or bad usage imposed, to take such advantage: and therefore the principle of the Court is of the same nature with relief in Courts of Equity on the head of public utility, as in Bonds obtained from young Heirs, and Rewards given to an Attorney pending a Cause, and Marriage-Brokage Bonds. All depend on public utility, and therefore the Court will not suffer it, though perhaps, in a particular instance, there may not be actual unfairness (t). The Rule is, in some cases, productive of hardship; as where there has

Wms. 293, in note, and approved in Roche v. O'Brien, iBall & Beatty, 357.

(r) Hill v. Caillord, 1 Ves.

(s) See 1 Ball & Beatty,

230.

(t) Hylton v. Hylton, 2 Ves.

been great trouble, and the Guardian has acted fairly and honestly; but Courts of Equity have established it from a persuasion of its utility, and on necessity, and on the principle, that it is a debt of humanity that one Man owes to another, as every Man is liable to be in the same circumstances (u). If, however, the Ward, or Cestui que trust, comes of age, and after actually being put into possession of his Estate, thinks fit, when sui juris and at Liberty, to make a reasonable grant, by way of reward for care and trouble, and does this with his eyes open, Courts of Equity will not set such gift aside; but the Court will not permit a gift at the very time of accounting and delivering up the Estate, making that the terms of doing their duty (x).

On

Conveyances of this description have been set aside not only by the Ward himself, but his Representatives (y), and after great length of time (≈). these principles, where a Gift of Stock was made by a Ward to his Guardian, immediately upon his coming of Age, and before his Guardian had delivered over every thing to his Ward, the Deed of Gift was decreed to be delivered up to be cancelled. The Guardian insisted that the Gift to him was as a Reward for his trouble as Guardian, but this Defence was not admitted (a).

(u) Hylton v. Hylton, 2 Ves. P. 549.

(x) See Ibid. p. 549. Cray v. Mansfield, 1 Ves. 379. Grif fin and De Veuille, 3 Wood. Lect. in Appendix, p. 18; and see what is said in Wright and Proud, 13. Ves. 138, and in Wood and Downes, 18 Ves.

127. Smith v. Moone, MS. Dawson v. Massey, 1 Ball & Beatty, 219.

(y) 2 Ves. 547.

(z) Hatch v. Hatch, 9 Ves. 292, S. C. 1 Smith's Rep. 226.

(a) Pierce v. Waring, cit. 2 Ves. 547, 549.