against by that Statute, but the prohibition being confined to that particular sort of transaction, Usurers were thereby put upon other contrivances; and experience taught the Legislature in more modern Statutes (0), not to particularize specific modes of Usury, because that only led to evasion, but to enact, generally, that no shift should enable a man to take more than the legal Interest upon a Loan. Therefore the only question in all these cases, is, what is the real substance of the transaction, not what is the colour and form (p). A Bill may be filed to have a Bond delivered up, and the Principal being discharged, to have repaid what has been paid over and above legal Interest (9). It might be different if the Securities had been delivered up (r). In the case of Money lost at Gaming, and paid, the Court, it seems, would not grant relief, the Plaintiff in Equity being particeps criminis (s). Other instances where the Court has interfered to prevent acts in fraud of the Law may be mentioned; as, where A. granted an Annuity of 300l. a year to qualify his Son to sit for a Borough, and after his Son was chosen he tore off the Seal; but the Grant was established, it being an imposition on the Public (t). So, where a Father sought by Bill a Re-conveyance from his Son of an Estate given to him as a qualification to enable him to sit in (a) See the last Stat. 12 Anne, St. 2, c. 16. (p) Lowe v. Waller, Dougl. 740. (q) Bosanquet and Dashwood, For. 37. S. C. MS. (r) Ibid 41. (s) Ibid. (t) Anon. MS. Parliament, the purpose being answered; the Bill was dismissed with Costs (u). If the Party found his mistake, and repented of it before he had carried his intention into execution, and the Person did not go into Parliament, the determination would be different (x). So if a Father, a citizen, makes a voluntary Conveyance to a Child, to enable himself to swear he is not worth the Sum of 15,000l. so as to avoid being chosen Sheriff, the Child would be entitled to the Estate (y). But it seems a Conveyance of an Estate to qualify as a Game Keeper, can be recovered back (2); there were, however, circumstances of gross fraud in this case. Conveyances made of Estates in Trust, in order to screen them from forfeitures for Treason or Felony have been set aside as against the Crown (a), though. good as against the Party (b). So if an Estate in Fee, or in Tail, be given to A. but in case he commits Treason within such a term of Years, is limited over, this is a void clause, and will not prevent a forfeiture (c). Frauds on Covenants are relieved against. If, for instance, a Father covenant on his Daugh (u) See what Lord Eldon says, in Curtis and Perry, 6 Ves. 747; and Lord Hardwicke in Birch against Blagrave, Ambl. 265, 6. I have heard the late Lord Kenyon approve of this doctrine. (x) Birch against Blagrave, Ambl. 266. Platamone v. Staple, Coop. 250. (y) Birch against Blagrave, Ambl. 265, 6. (z) See Bridgman v. Green, 2 Ves, 627. (a) Young v. Peachy, 2 Atk. 258. The case of Fletcher v. Robinson, Prec. Ch. 250, contra, was over-ruled in Chaplin v. Chaplin, 3 P. Wms. 233. (b) Duke of Bedford v. Coke, 2 Ves. 117; and see on this subject Cottington v. Fletcher, 2 Atk. 155, and the observations of Lord Eldon on that case, in Muckleston v. Browne, 6 Ves. 68. (c) Carte v. Carte, 3 Atk. 180. S. C. Ambl. 32. They do He may ter's Marriage to leave her at his death a full and equal share of his Personal Estate with his Son, and afterwards transfers his Personal Estate in the Funds into his Son's name, who verbally promised to pay the Father the Dividends for his life, this will be set aside as a Fraud on the Covenant (d). Covenants of this nature are by no means censurable. not confine or restrict the Father's powers. alter the nature of his property from personal to real ; or he may give scope to projects, or indulge in a free and unlimited expense; but he is not allowed to entertain more partial inclinations and dispositions towards one Child before another. If his partiality to one Child is greater than to another, and he determines to make a difference in favour of such Child, he must do it directly, absolutely, and by an unqualified gift, surrendering all his own Right and Interest. He must give out and out. He must not exercise his power by an act which is to take effect, not against his own Interest, but only at a time when his own Interest will cease (e). If a Husband, on a separation from his Wife, covenants to leave her such a portion of the Personal Estate as she would be entitled to under the statute of Distributions, if he had died intestate, the Husband, it seems, might spend all his substance, but could not reserve to himself any part for his own benefit, nor lay it out in Land (ƒ); but if under (d) Jones v. Martin, 6 Bro. P. C. 437; and 8th vol. p. 242, reversing a decree in Exchequer, 3 Anstr. 882. See a Note of the Chancellor's Argument in this case, in the House of Lords, 5 Ves. 266. n. a. (e) Jones and Martin, in House of Lords, 5 Ves. 268, in note; see also Fortescue v. Hannah, 19 Ves. 67. (f) See what is said in Cochran v. Graham, 19 Ves. 66. such circumstances the covenant be, that the Wife surviving shall be entitled to her Dower, and Thirds of all the Real and Personal Estate whereof the Husband shall die seised or possessed, it has been held this leaves the Wife in the same situation as if not living separate with regard to Dower and Thirds, and does not interfere with the Husband's power of testamentary disposition (g). If undue influence be used to obtain a Deed, a Court of Equity will set it aside; as if a Parent abusing the authority over his Child, obtains from it a Conveyance (h). An Act done from the fear of displeasing a Father or Mother is not that sort of fear which vitiates a Contract; but if a Person having another under his authority employs ill treatment, or menaces, to procure a Contract, the same would be void; but Lord Hardwicke was of opinion, that if a Son, Tenant in Tail, and a Father Tenant for Life, agree on something for the benefit of the younger Children, and afterwards the Son complains of paternal authority being exerted, though there might be something of that sort, yet if the Agreement be reasonable the Court will not set it aside (¿). (g) Cochran v. Johnson, 19 Ves. 63. an agreement with his Father for releasing his Inheritance (being a Trust Estate in Tail) for an Annuity, because he was under the awe of his Father, dismissed, there being no fraud proved, and the Son having been extravagant; but without prejudice to his Heirs." (h) See Ivers v. Ivers, Dom. Proc. 1734, 5. Scrope v. Offley, Dom. Proc. 24th May 1735, noticed in Grounds and Rudiments of Law and Equity, p. 19; and see Green v. Green, 25 January 1710, Dom. Proc. noticed in Lord Harcourt's (i) Cory v. Cory, 1 Vez. 19; Tables as follows; "Bill and see Kinchant against Kinbrought by a Son to set aside chant, 1 Bro. C. C. 369; see In some of the Cases it is said that transactions of this sort between Parent and Child will be looked at with jealousy, and so that the Father shall not take an improper advantage of his Authority (k); but the complaint must always be made in time, and not after the Father is dead, and the Son has entered into an act by his Marriage, under which immediately the moment it is celebrated, persons unborn acquire a right (). As where a Son, Tenant in Tail in Remainder, when just of Age, joined his Father, who was Tenant for Life, in a Recovery, for the purpose of raising 3,000l. for the Father, and re-settling the Estate, the Son taking back only an Estate for Life, with Remainder to his first and other Sons, &c. it was held, that whatever Equity he might have had against that Settlement was lost by his Marriage and acquiescence, till after the death of his Father (m). If a Son, in plentiful circumstances, gives his Father a Bond to pay him an Annuity for his Life, and it is done freely and without coercion, it is good (n); but if a Father who is Tenant for Life draws in a Son who is Tenant in Tail to join in a Conveyance which will destroy his Remainder, the Court upon very slender evidence will relieve the Son (o). Where a Father had advanced a Child in his Infancy, and upon his coming of Age took a Bond also on this subject Pothier, 254. (1) Bower v. Carter, 5 Ves. 877; and see 1 Vez. 401. Cocking v. Pratt. (m) Browne v. Carter, 5 Ves. 862. (n) Blackborn v. Edgley, 1 P. Wms. 607. (0) Heron v. Heron, 2 Atk. 161. |