Plea of the Decree, accompanied by a denial of the Fraud charged (m).

So, if Probate be obtained of a Will procured by fraud, the Court will oblige the Party so obtaining Probate, to consent to a revocation of the same (n).

The Purchase of an Estate in the West Indies by a Creditor under his own Execution, and which, under the circumstances, appeared to be a sham Sale, and without competition. and contrived with a view to get the Estate at an under-value, has been set aside (o); but unless Fraud is proved, a Judicial Sale, had under the Process and Judgment of a Court having a competent Jurisdiction, cannot be set aside (p).

So if Dower be fraudulently or partially assigned by the Sheriff, a Court of Equity will give relief (9).

Deeds procured from a drunken Man, will not, according to some decisions, be relieved against. Lord Coke observes in regard to inebriation, "Although he who is drunk, is for the time, non compos mentis, yet his drunkenness does not extenuate his act or offence, nor turn to his avail; but it is a great offence in itself, and therefore aggravates his offence, and doth not derogate from the act which he did during that time; and that as well in cases touching his life, his lands, his goods, or any other thing that concerns him (r).” And it was the doctrine of Sir J. Jekyll (s), that the

(m) Redesd. Tr. Pl. 237, and cases there cited.

(n) Barnsley and Powell, 1 Ves. 290; but see 2 Vern. 8, 76.2 Ch. Cas. 178. 1 P. Wms. 389. 2 P. Wms. 286. 1 Ves. jun. 411.

(o) Lord Cranstown v. Johnston, 3 Ves. 170; and S. C. 5

Ves. 277. and see White v.
Hall, 12 Ves. 324.

(p) White v. Hall, 12 Ves.

321.

(q) Hoby v. Hoby, 1 Vern. 218. S. C. 2 Ch. Cas. 160 Sneyd v. Sneyd, 1 Atk. 442. (r) 4 Co. 125.

(s) Johnson v. Medlicott, 3

having been in drink is not any reason to relieve a Man against any deed or agreement gained from him, when in those circumstances, unless the Party was drawn into drink through the management or contrivance of him who gained the Deed. So, too, the opinion of Lord Hardwicke on this subject appears to have been, that the drunkenness of one of the parties was not sufficient to set aside an Agreement, unless some unfair advantage was taken; and therefore in the case before him, the agreement being to settle disputes in a family, and reasonable, and no unfair advantage appearing to have been taken, he refused to set it aside, though the party complaining of it was drunk when he executed it (t).

Decisions, by such Lawyers, are as a Law to succeeding Judges, though the reasons for them may not be satisfactory. It may, however, be observed, that by the Scotch Law, Persons in a state of absolute drunkenness, and consequently deprived of the exercise of reason, cannot oblige themselves; but a lesser . degree of drunkenness, which only darkens reason, has not the effect of annulling a contract (u). The distinction, thus taken, seems reasonable; for it never can be said that a Person absolutely drunk, to use the Scotish term, has that freedom of mind generally esteemed necessary to a deliberate consent to a contract; the reasoning faculty is for a time deposed. At Law it has been held that upon non est factum the Defendant may give in evidence that they made

P. Wms. p. 130. n. a. and see
Cook v. Clayworth, 18 Ves.

12.

(t) Cory and Cory, 1 Ves. p. 19; but Lord Eldon has ob

served, "it is a very strong case." Stockley v. Stockley, 18 Ves. 30, 31.

(u) Ersk. Inst. p. 447.

him sign the Bond when he was so drunk that he did

not know what he did (x). drunken Man is invalid (y).

So, a Will made by a

And will a Court of

Equity be less indulgent to human frailty? It seems to be a Fraud to make a contract with a Man who is so drunk as to be incapable of deliberation; and if so, the contracts of such Persons would, one might think, be relievable in Equity. Cases of glaring injustice may easily be imagined (2).

Heineccius (a), Puffendorf (b), and Pothier (c), all agree in considering contracts, under such circumstances as invalid; and the admirable Author of the Treatise of Equity thus expresses himself: " himself: "Although drunkenness is a kind of insanity for the time, yet as it is of its own procuring it shall not turn to his avail, either to derogate from his act, or to lessen his punishment; but it is a great offence in itself, and this holds as well to his life, his lands, his goods, or any thing concerning him. However, Equity, as it seems, will relieve in this case, especially if it were caused by the fraud or contrivance of the other Party, and he is so excessively drunk that he is utterly deprived of the use of reason or understanding; for it can by no means be a serious and deliberate consent" (d): and in a recent Case (e) where the Plaintiff did not contribute to make the Defendant drunk, but entered into

(x) Cole v. Robbins, Bull. N. P. 172. S. C. referred to in MS. in 1 Selw. Abridgment, 493.

n..

(y) 2 Cox. 6, 23.

(z) See on this subject, post. (a) B. 1 Ch. 14. §. 392.

(c) Traite des Obligations, P.1 Ch. 1. 8. 1. art. 4.

(d) 1 vol. Treatise of Equity, edited by Fonbl. p. 67. See also on this subject Cragg v. Holme, 18 Ves. 14.

(e) Spiers v. Higgons, Rolls,

an Agreement with him when drunk, and a Bill was filed for a specific performance, it was dismissed with Costs.

Conveyances in fraud of the Law are relieved against; for as the Court acts to protect Individuals in cases of Fraud, so it will act to prevent a Fraud upon the Law itself.

A Devisee is bound to answer a charge by the Heir that the Devise was upon a secret Trust, or undertaking for a charitable purpose, contrary to the Statute of Mortmain (ƒ).

It is not, however, considered as a Fraud on the Law to take out a Commission for the purpose of defeating an Execution (g), or after a Judgment obtained, and before Execution, to convey all the Party's effects by way of Mortgage (h). Even after a fieri facias the Debtor may assign a Legacy bona fide for a valuable considerasion and without notice, and the Assignment will be good against the Creditor (¿).

A Bond given for Silks purchased to sell again to raise Money, has been ordered to be delivered up upon payment of the Sum really raised, this being a method, under the mask of trading to lend Money at an extraordinary rate of Interest (k). So, a beneficial Lease granted at the same time with a loan of Money by Lessee to Lessor, has been set aside, as

(f) 9 Geo. 2. c. 36. Strickland v. Aldridge, 9 Ves. 516. S. C. MS. Mucklestone v. Browne, 6 Ves. 53. S. C. MS. and see on this subject, Adlington and Cann, 3 Atk. 141, and Boson v. Stathan, 1 Cox, 16. and S. C. Eden's Rep. 1 vol.

509.

(g) Ex parte Edmonson, 7 Ves. 303.

(h) King v. Marissal, 3 Atk. 192.

(i) Edgell v. Haywood, 3 Atk.

357.

(k) Barker against Vansommar, 1 Bro. C. C. 149.

giving to the lender a Profit on the Money lent beyond legal Interest (1). In a subsequent Case (m) the Court said it would not extend the doctrine of Lease and Loan farther than it had already been carried; and held that a Lease at a fair Rent, Lessee paying two Years Rent in advance, secured by Lessor's Bond, and an Insurance on his Life, was not impeachable.

There has long been a struggle in Courts of Equity, with persons who have made it their endeavour to find out schemes to get exorbitant Interest, and evade the Statutes of Usury; and the Court, it seems, hath never laid down any general rule beyond which it will not go, lest other means of avoiding the Equity of the Court should be found out: they therefore always determine upon the particular circumstances of each case; and wherever they have found the least tincture of fraud in any of these oppressive bargains, relief hath always been given (n); but whenever it is necessary to have the assistance of a Court of Equity to set aside an usurious Contract, it must be upon the terms of paying what is fairly due with legal Interest (o).

Before the Statute, 37 Henry 8, c. 9, all Interest on Money lent was prohibited by the Canon Law, as it is now in the Roman Catholic countries. This gave rise to many shifts and devices to evade the law. One which was then most common was provided

(1) Browne v. Odea, 1 Sch. & Lefr. 115; and see Drew v. Power, ibid. p. 182. Molloy v. Irvin, ibid. 310. Gubbins v. Creed, 2 Sch. & Lefr. 218. and see Leekey v. O'Donnel, ib. 466, &c.

(m) Obrien v. Grierson, 2 Ball & Bea. 332.

(n) Lawley v. Hooper, 3 Atk. 279.

(0) Scott v. Nesbit, 2 Cox, 183; and S. C. 2 Bro. C. C. 641.