Many grounds on which a court of equity has acted in such cases do not apply in this case. The parties were not standing in any fiduciary relation to one another; and if this had been a legal transaction I do not know that we should have thought that there was any pressure that would have warranted the decree made by the Vice-Chancellor. But here was a pressure of this nature. We have the means of prosecuting and so transporting your son. Do you choose to come to his help and take on yourself the amount of his debts-the amount of these forgeries? If you do we will not prosecute; if you do not we will. That is the plain interpretation of what passed. Is that, or is it not, legal? In my opinion, my Lords, I am bound to go the length of saying that I do not think it is legal. I do not think that a transaction of that sort would have been legal even if, instead of being forced on the father, it had been proposed by him and adopted by the bankers; and I come to that conclusion upon this short ground, that in Wallace versus Hardacre, although the decision there, founded upon the facts of that particular case, was against the view I am taking, yet there Lord Ellenborough positively states that which has always been understood to be the correct view of the law upon this subject, namely, that although in that case there was no reason for treating the agreement as invalid, yet it would have been otherwise if the agreement had been substantially an agreement to stifle a criminal prosecution.

A contract to give security for the debt of another, which is a contract without consideration, is, above all things, a contract which should be based upon the free and voluntary agency of the individual who enters into it. But it is clear that the power of considering whether he ought to do it or not, whether it is prudent to do it or not, is taken away from a father who is brought into the situation of either refusing and leaving his son in that perilous condition or of taking on himself the amount of the obligation.

A young woman, upon the eve of her marriage and in a strange country, requested and urged to assume and pay the debts of her intended and titled husband, being led to believe that if she did not comply with the solicitations pressed upon her that her marriage might be prevented, her intended husband arrested, and the whole affair published in the newspapers, is certainly the object of undue and improper influence, and in yielding to it at last, after long resistance, cannot be said to be acting as a free and voluntary agent for the circumstances preclude the exercise of free and deliberate judgment. The contract which she assumed was utterly

without consideration and, as there were threats and undue influence, cannot be enforced.

A mere threat to sue the defendant and to arrest him in a civil action for the wrong which he had done the plaintiff, or by virtue of an execution which could be issued upon a judgment obtained therein, would not be such duress as would avoid a promise to pay induced by such threat. When there is no arrest, no imprisonment, no actual force, and it is claimed that a promise was obtained by duress per minas, then whether or not the promise was obtained by duress must usually be a question of fact; and the question cannot be determined as one of law. It is not sufficient in such a case to satisfy the trial court that the threats were uttered, but it must also be shown that they constrained the will of the promisor and induced the promise.

A contract obtained by duress of unlawful imprisonment is voidable. And if the imprisonment is under legal process in regular form, it is nevertheless unlawful as against one who procured the process improperly for the purpose of obtaining the execution of a contract; and a contract obtained by means of it is voidable for duress. The rule as to duress per minas has now a broader application than formerly. So it has been said that imprisonment under a legal process issued for a just cause is duress that will avoid a contract if such imprisonment is unlawfully used to obtain the contract. Imprisonment that is suffered through the execution of a threat which was made for the purpose of forcing a guilty person to enter into a contract may be lawful as against the authorities and the public, but unlawful as against the threatener when considered in reference to his effort to use for his private benefit processes provided for the protection of the public and the punishment of crime. One who has overcome the mind and will of another for his own advantage, under such circumstances, is guilty of perversion and abuse of laws which were made for another purpose, and he is in no position to claim the advantage of a formal contract obtained in that way, on the ground that the rights of the parties are to be determined by their language and their overt acts,

without reference to the influences which moved them. In such a case there is no reason why one should be bound by a contract obtained by force, which in reality is not his, but another's.

There are numerous cases where duress or fraud has been made available as a defence or a ground for recovering back money paid or setting aside contracts executed, without restoration. In some of these cases there was a failure to restore money paid to a minor and by him wasted; in some a failure to return a release of a claim or a discharge of a former suit; in some a failure to return a note and worthless securities; in some a failure to return counterfeit bills; in some a failure to restore money or property paid or delivered to some person other than the victim of the duress or fraud.

If the results of a contract or settlement by which a party is sought to be estopped, or which is set up to prevent the assertion of a right, are such as to be of no benefit to one or no detriment to the other contracting party, that is if nothing of value was parted with on the one hand or received on the other, the contract may be disaffirmed without a formal restoration on the principle that the law does not require an idle ceremony.

The doctrine of estoppel in pais always presupposed error on one side and fault and fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage.

No definition of what the law denominates undue influence can be given which will furnish a safe and reliable test for every case. Each case must be decided on its own special facts. All that can be said in the way of formulating a general rule on this subject is, that whatever destroys free agency and constrains the person, whose act is brought in judgment, to do what is against his will and what he would not have done if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity or any other species of mental or physical coercion. The extent or degree of the influence is quite immaterial, for the test always is, was the influence, whether slight or powerful, suffi

cient to destroy free agency so that the act put in judgment was the result of the domination of the mind of another rather than the expression of the will and mind of the actor.

Cases of this class generally cast upon the tribunal, charged with the duty of deciding them, responsibilities of the weightiest character. It is the duty of the courts to maintain inflexibly the right of the citizen to exercise full and complete dominion over his property, in making such disposition of it as to him may seem proper, but they are under a duty, equally solemn and imperative, not to allow him in his old age, after his strength and vigor have departed and he has fallen into decrepitude and weakness, to be despoiled of his property by any sort of coercion or trick. It is their duty to uphold the rights of the strong, but it is also their duty to protect the weak.

There are witnesses whose moral sense seems to be much less outraged by the suppression of the truth than by a downright denial of it. They seem to think the shock to the conscience will be much less violent if they merely pretend to forget than it would be if they ventured upon a bold, blunt denial. Under such circumstances, feigned forgetfulness of a fact may be very satisfactory proof of its existence.

Where a client had become bankrupt, a purchase by his solicitor from the trustee in bankruptcy has been held to be incapable of enforcement. Independently of all fraud, an attorney shall not take a gift from his client, while the relation subsists; though the transaction may be not only free from fraud, but the most moral in its nature. The principle is that, while the confidential relation exists, it is impossible to rebut the presumption of undue influence unless the donor had competent and independent advice. This presumption exists as much when the gift is made to the wife as when it is made to the solicitor himself.

Where large voluntary gifts are made and accepted inter vivos, the recipient may be called upon to show that the donor had capacity and knowledge of what he was doing. If capacity and knowledge are not disputed, proof may then be given against the recipient to show that the donor's in

tention to give was produced by undue influence, and then the court sets it aside, unless the transaction as a whole was a benefit to the donor.

Or the donor may show that confidential relationship existed between the donor and the recipient, and then the law, on grounds of public policy presumes that the gift, even though in fact freely made was the effect of the influence induced by those relations, and the burden lies on the recipient to show that the donor had independent advice, or adopted the transaction after the influence was removed, or some equivalent circumstance.

Whoever receives benefit derived from the fraud, imposition or undue influence of others, must take it tainted and infected with the undue influence and imposition of the person procuring the gift, and his partitioning and cantoning it out amongst his relations and friends will not purify the gift and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet, if it comes through a polluted channel, the obligation of restitution will follow it.

[Immoral and Gambling Agreements Illegal.]

A court of equity has authority to relieve against an instrument which, although legal upon the face of it, was in fact executed for an illegal and immoral purpose; but where a party to the illegal or immoral purpose seeks to be relieved from the obligation he has contracted in respect of it, he must state distinctly and exclusively such grounds of relief as the court can legally attend to; he must not accompany his claim for relief, which may be legitimate, with claims and complaints which are contaminated with the original immoral purpose. If he claims that he is released from his obligation by the woman having ceased to live an immoral life in connection with him, upon a bill so framed he can have no relief.

Bonds or covenants founded on past cohabitation whether adulterous, incestuous or simply immoral, are valid in law