immoderate, and bears no proportion to the circumstances of the Giver; ubi modus non adhibeter, ubi non refertur ad facultates, where no reason at all appears, or the reason given is falsified, and proved to be a fiction, and the Giver is a weak Man of a facile, easy temper, liable to be imposed upon, this Court will look upon such a Gift with a very jealous eye, and very strictly examine the conduct and behaviour of the Persons in whose favour it is made. If it see that any arts or stratagems, or any undue means have been used by them to procure such a Gift; if it see the least speck of imposition at the bottom, or that the Donor is in such a situation with respect to the Donee as may naturally give an undue influence over him, if there be the least scintilla of Fraud, in such a case the Court will and ought to interpose; and by the exertion of such a Jurisdiction, they are so far from infringing the right of alienation, which is the inseparable incident to property, that it acts upon the principle of securing the full, ample, and uninfluenced enjoyment of it (r).

Excessive old age, with weakness of mind, may be a ground for setting aside a Conveyance obtained under such circumstances; but where a Lease was obtained from a woman who was upwards of seventy-five years of age for much less than the value of the Lease, still it was held unimpeachable, and that old age, without some proof of fraud, would not invalidate a transaction (s).

Underhand Agreements are also relieved against in

(r) Bridgman v. Green, Wilmot's Cases, 61.

v. Pead; see on this subject White v. Small, Ch. Cas. 103.

Equity. If a Debtor compromise with his Creditors, and a Deed of Composition is signed, or acted upon as if signed by the Creditors, and one of the Creditors, unknown to the rest (if known to the Creditors it would be different (t), obtains from his Debtor a collateral security for his Composition, this security is fraudulent and invalid (u); and bad at Law (x), as well as in Equity. It has even been held that where a Creditor apparently accepts, and gives a receipt for, a Composition, to enable the Debtor to deceive his other Creditors, but takes a security for the rest of the demand, such security is void, although there is no joint agreement among the Creditors, nor any one is in fact deceived by the Fraud (y). But such agreement is bad only, it seems, as to the Creditors, and cannot be relieved against at the instance merely of the Debtor, who has himself been guilty (~).

Costs in these Cases are of course, and are always given on grounds of public policy (a).

Under the head of underhand Agreements may be ranked Marriage-Brokage Bonds.

The Civil Law allowed the proxenetæ, or matchmakers, to receive a reward for their pains (b); and

(t) See Hibblethwaite's case mentioned 13 Ves. 586, 7. & S. C. MS. Mawson v. Stock, 6 Ves. 300.

(u) Child v. Danbridge, 2 Vern. 71. Middleton v. Lord Onslow, 1 P. Wms. 768. Spurret v. Spiller, 1 Atk. 105. Chesterfield and Jansen, 2 Ves. 156. Sadler and Jackson, Ex parte 15 Ves. p. 52; and see Eastabrooke. Scott, 3 Ves. 406. Constantein v. Blache, 1 Cox, 287.

(x) See Jackman v. Mitchell, 13 Ves. 586, and Leicester v. Rose, 4 East, 372, over-ruling Feize v. Randall, 6 T. R. 146.

(y) Fawcett and another v. Gee, 3 Anstr. 910.

(2) Small v. Beachley, 2 Vern. 602; but see Cecil and Plaistow, 1 Anstr. 202, and Fawcett and Gee, 3 Anstr. 910. (a) Jackman v. Mitchell, 7th April 1807, MS. S. C. 13 Ves. 586.

(b) 1 Bro. Civil Law, 79.

Lord Somers decreed in favour of a Bond for procuring a Marriage, the procuring of a Marriage being a good consideration at Law for an Assumpsit (c), but his decree was reversed in the House of Lords (d): and it is now clearly settled, that Equity will relieve against Bonds given for the procuring of a Marriage (e); and not only decree such Bonds to be delivered up, but also a sum paid, to be refunded (f), they being introductive of infinite mischief (g); and as relief in these cases is given on grounds of public convenience, such Bonds do not admit of confirmation, though, perhaps, (a sort of confirmation) the remedy of the Party may be released (h). The Court on these occasions does not interpose in respect of the particular damage to the Party, but from a public consideration, Marriage greatly concerning the Public (i). Such Bonds tend to introduce improvident Marriages; and every Contract relating to Marriage ought to be free and open (k) and on this ground it is that though the match be a proper one, yet the Court sets the Bond aside. But for the ingredient of public policy, the Court would not set such Bonds aside at the instance of the

(c) See Grisley v. Lother, Hob. 10, and what Holt, Ch. Just. says, in Hall v. Potter, 3 Lev. 411; but see Collins v. Blanterne, 2 Wils. 347.

(d) Potter v. Keen, or Hall, Show. Cas. Parl. 76, noticed 3 P. Wms. 76, and 392.

(e) Drury v. Hook, 1 Vern. 412. Arundel v. Trevilian, Ch. Rep. 87. Hall v. Potter, 3 Lev. 411. Sho. P. C. 76. Glanville v. Fenning, 3 Ch. Rep. 18. Toth. 27. Cole and Gibson, 1 Ves. 507. Smith v. Aykwell,

(f) Smith v. Bruning, 2 Vern. 392.

(g) 3 P. Wms. 394.

(h) Shirly v. Martin, mentioned in note 1, to Roberts and Roberts, 3 P. Wms. 74, and noticed 1 Fonbl. Eq. 265.

(i) Law and Law, For. 142. S. C. MS. and more fully Debenham v. Ox, 1 Ves. 277. Cole v. Gibson, 1 Ves. 506.

(k) Roberts v. Roberts, 3 P. Wms. 76. Debenham v. Ox,

obligor, who is particeps criminis; and where the obligor has sought relief, costs have not been given (1).

A Bond given for assisting a clandestine Marriage has been set aside, though given voluntarily after the Marriage, and without any previous agreement for the same (m).

Another sort of underhand Agreement is, where a Man sells his Interest to procure another an office of trust or service under the Crown; it is a contract of turpitude, and cognizable by the Jurisdiction of Equity (n); as where money was advanced for procuring a commission in the Marines, and the Purchaser was discovered to have worn a livery, he was discarded, and it was held that he was entitled to a Decree for the Money paid, with Interest. "If," says the Lord Keeper Henley, "there is no precedent of such a determination, I have no scruples to make one, and shall glory in it " (o).

Fraudulent Alienations by Executors will be relieved against. Executors are, in Equity, mere Trustees for the performance of the Will, but in many respects, and for many purposes, third persons are entitled to consider them as complete owners (p). The power they possess over the Property of their Testator is very large, both at Law and in Equity, and it is considered necessary, the better to enable them to execute their Trust, and prevent the general

inconvenience of entangling third persons in inquiries as to the application the Executors may propose to make of the Money produced by the conversion of the Assets (q); nor is it of any consequence, with reference to the power of Executors, whether the Personal Estate is bequeathed on a Trust or not.

Though an unsatisfied Legatee has an Interest in the Estate of his Testator, and a right to have it applied to answer his demands in a due course of Administration; yet, so exclusive is the power of the Executor, that the Legatee cannot institute a Suit against the Debtors to the Testator's Estate, for the purpose of compelling them to pay their Debts in satisfaction of his Legacy; unless by collusion between the Representative and Debtors, or other collateral circumstances, a distinct ground is given for a Bill by the Legatee against the Debtors (r); for there is no privity between the Legatee and the Debtors, who are answerable only to the personal Representative of the Testator.

If, however, a person dealing with an Executor, is aware that the Executor is misapplying the Testator's Property, a Court of Equity will in general, (but it must be a very strong case,) (s) interfere on behalf of Persons beneficially entitled under the Tes

(q) See Humble and Bill, 2 Vern. 444, the doctrine of which case appears to have been followed, though the decree was reversed (1 Bro. P. C. 74,) in the House of Lords; see Nugent v. Gifford, 1 Atk. 463, 4. S. C. 2 Ves. 269. Elliot v. Merriman, 2 Atk. 42. Mead and Lord Orrery, 3 Atk.

131. Brickley v. Donnington, 2 Eq. Abr. 253. Franklin v. Ferne, Barn. 32.

(r) Redesd. Tr. Pl. 129, and cases there cited.

(s) Cranc v. Drake, 2 Vern. 616. Ewer v. Corbet, 2 P. Wms. 148. Jacomb v. Harwood, 2 Ves. 268. Dickenson v. Lockyer,