(Delamater's Estate.) Mr. C. Ingersoll and Mr. Chauncey, for the appellees :'There is nothing in the circumstances of this transaction, calling upon the Court to interfere. Miss Delamater was 29 years old, a co-executor, conversant with the situation and amount of her father's property, and better acquainted than any one else, with his intentions as to the disposition of it. The evidence taken by the auditor, shows that no improper influence was exercised. She had full time for deliberation, since the paper was not signed until more than a month after her father's will was proved. The recital of the intestacy of Mr. D. in respect to the 43 shares, is certainly correct. To argue that bank stock will pass under a clause like that in the will, is to go further than any case has yet done. The words, "the remainder of my worldly substance," are explained and controlled by what follows, viz. "consisting of furniture, bedding," &c. enumerating them; and the words, "claims and demands," obviously refer to debts due to him by individuals. Then if the transaction be such that it would be supported in an ordinary case, is there any thing in the relative situation of the parties to invalidate it. There is no such rule as that a trustee cannot, under any circumstances, deal with the cestui que trust. It is true that contracts between them are looked upon with suspicion; but if it be shown that the parties dealt as strangers, that no undue influence was exerted, and no important information withheld, there is no reason why such contracts should not stand. Morse v. Royal, (12 Ves. 272, 3.) Gibson v. Juyer, (6 Ves. 277.) Exparte Lacy, (6 Ves. 627.) 1 Cruise Dig. 538, 9, tit. 12, c. 4, § 57. Campbell v. Walker, (5 Ves. 673, 13 Ves. 60.) Harris v. Tremenheere, (13 Ves. 136.) At all events contracts between trustee and cestui que trust are not void, but voidable at the election of the latter, who will be taken to have confirmed the transaction, if he suffer any considerable time to elapse. Shotwell v. Murray, (1 Johns. C. R. 516.) Prevost v. Gratz, (1 Peters' C. C. R. 364.) Bruch v. Lantz, (2 Rawle, 416, 418.) Lister v. Lister, (6 Ves. 231.) Here there was an acquiescence of 10 months and more. But in truth the parties did not at any time stand towards each other in the position of trustee and cestui que trust. Miss D. was sui juris, under no restraints, and possessed equal knowledge and power with Mr. Dunton. She might have taken letters testamentary at any time, and have prevented the transfer of the stock. In this case, there are none of the features which have induced the Courts to set aside conveyances or gifts. The legatee here, never was in the power or under the influence of the executor. Mr. Pike, the co-executor, joined in the transfer, and was competent and willing to protect her interests if they required it. Besides this was the case of an agreement between members of the same family for the quieting of controversies. And in such cases, Lord Elden said, in Stockley v. Stockley, (1 Ves. & Beames, 30,)" the Court administers an equity which is not applied to agreements (Delamater's Estate.) generally." Stapylton v. Stapylton, (1 Atkyns, 2.) Cary v. Cary, (1 Ves. 19.) The opinion of the Court was delivered by— GIBSON, C. J.-We are called upon, not to withhold our assistance from the execution of an agreement, but to cancel a contract executed; and it is to be noticed that there is a material difference between circumstances which require a chancellor to forbear, and those which require him to act. On a question of specific performance he may choose to be silent; and his action, being of grace and not of right, is to be directed by a sound though legal discretion. But circumstances proper for rescision, involving, as they do, the control of a legal right, are necessarily of a more positive and definite cast. The consequence of the distinction is, that though equity will refuse to interfere for purposes of execution wherever it would revoke, it may refuse to revoke where it would decline to execute. A chancellor lends not assistance to an unconscionable bargain, accompanied with circumstances of suspicion though not positively unfair, as in Campbel v. Spencer, (2 Binney, 129); but hardship or suspicion of unfairness is certainly not ground of recision. Had the title been conveyed in the case quoted, no interference of the jury or the court would have prevented a recovery. These are elementary principles about which there is no dispute. Now the grounds on which equity interferes for rescision, are distinctly marked, and every case proper for this branch of its jurisdiction, is reducible to a particular head. They are principally fraud, mistake, turpitude of consideration, and circumstances entitling to relief on the principle of quia timet. The case at bar, cannot, consistently with its nature, be brought under either of the two last; and as there is small allegation of mistake, and still less proof of it, the contract can be successfully assailed, if at all, but for fraud proved or inferrible from want of consideration and the relation in which the parties stood. I have searched the proofs, without success, for anything like a suggestion of falsehood or suppression of truth. Miss Delamater had long attained the age of discretion, was conscious that the title was vested in her, and was aware that she could not be divested of it without her consent. In executing the act of transfer, she thought she was but carrying out the plan of her father; and there is nothing to show that her belief, whether well or ill founded, was generated by the arguments or suggestions of the donees: neither was she moved towards the consummation of her purpose by threats or intimidation. Mrs. Dunton had declared that she would not again enter the house if her expectations were disappointed; but, surely such a declaration is not an engine of duress, proper for the consideration of a chancellor. It is certainly not a proof of legal duress; and it has been determined in Stouffer v. Latshaw, (2 Watts, 165,) that there is (Delamater's Estate.) no such thing as equitable duress. The only inducement to the act not made good to the letter, is Mrs. Dunton's promise to have the matter amicably arranged, if found not to be right. Mr. Pike supposes this to have been an engagement to restore, and Ann Kremer, the other witness, speaks of it very indistinctly. It seems to have meant no more than the parties were expected to deal with each other on honour; and that is certainly not a cause for relief. In dealing with a person of weak intellects, such a promise might be a circumstantial proof of imposition; but Miss Delamater, is not alleged to have been such. We discern nothing in her conduct evincive of it. She appears to have acted on a settled conviction that her father's partial intestacy was the effect of accident, and that she was required by duty to repair it. If her belief in this particular were correct, and it has not been shown that it was not, the moral obligation cast upon her by the discovery of her father's intent, would be a consideration to support even an executory agreement. But to a contract executed and requiring not the interposition of a chancellor, a consideration is unnecessary. A gift cannot be retracted; and even a voluntary specialty may be enforced at law without hindrance from equity, which does not recognise the want of an actual consideration as a ground of injunction. But, without even the pretence of a consideration, the executed transfer was an irrevocable gift of the stock, though the donor may have been mistaken in the existence of some fact which was the collateral inducement to the act. Did the parties stand in a relation to forbid the transaction? The residuary bequest of "furniture, bedding, carpets, china, kitchen furniture, looking-glasses, crockery, &c.," certainly did not carry the stock; nor was it embraced by the supplementary description of 66 money in bank," or "all claims and demands of whatever nature." These, as justly remarked by the auditor, are not such as, in the ordinary sense of the words, denote bank stock. The subject of the contest, then, did not pass by the will, and the parties stood, as regards it, in no fiduciary relation whatever. What then was there to prevent them from dealing for it on a footing of ordinary equality? A trustee has been suffered to acquire even the trust fund, the cestui que trust acting with full knowledge of the circumstances and having the management of the sale. The rule was perhaps never carried so far as to prevent the parties from dealing with each other in the attitude of strangers, and at arms length; and it seems to be mitigated by recent decisions. In the English chancery it seems to be no more than this. Where the parties stood in a very confidential relation, such as guardian and ward, attorney and client, or cestui que trust and trustee, the party seeking to set aside the deed shall not be called on to show direct fraud; yet the burthen of proving that advantage was taken of the confidence incident to the relation will nevertheless rest on him, subject, however, to rebuttal by proof from the other (Delamater's Estate.) side, that the dealing was, in fact, guarded as between strangers, and without advantage taken of influence or superior knowledge. The subject is, to say the least, eloquently discussed in Hunter v. Atkins, (1 Cooper's Rep. of Ld. Brougham's Decisions, 464,) to which those who choose to pursue it further, are referred. But it is proper to remark that the relation of trustee, including that of guardian and executor, is the one in respect to which the Court is the least vigilant, being most especially awake to the transactions of an attorney with his client. Now in reference to the transaction here, the relation could not be put off, for it never existed; nor did the parties treat under an impression that the stock was involved in it. Miss Delamater knew that it was not peculiarly in the control of Mr. Dunton and his wife, and that, as to ownership and every thing besides, she was on a footing with them. She was in her thirtieth year, and she seems to have been every way competent to deal with them in this or any other transaction. But what was her relation to them even in respect to the trusts in the will? She was joined with them in the execution of it; and though she had not acted, yet being officially and intellectually competent, she was their equal and at liberty to assume the active duties of the office when she might please to do so. She was exactly informed of her position; no circumvention was practised on her, and though she was strongly-perhaps indelicately-pressed by considerations that might operate on the sensibilities of a sister, these are referrible to the relation of blood and not of office. Even as a relative she was put on her guard by her kinsman, Mr. Pike; and the act of transfer thus performed under a sense of moral obligation-possibly a mistaken one-by a person not disqualified by imposition or any particular relation, is conclusive. Report and decree affirmed. [PHILADELPHIA, APRIL 4th, 1836.] BURCHARD against REES. 1. Where an assignment of goods was made for the benefit of creditors, and the assignee advertised the property for public sale at a certain time, at which time there was no rent due, and before that time the landlord distrained, and prevented a sale, and then the sheriff seized under an irregular execution, and sold, and out of the proceeds paid the rent accruing to the landlord; it was held, in an action of trespass brought against him by the assignee, that he was not entitled to any deduction for the rent so paid to the landlord. 2. Whether a levy upon goods in a shop in the lower part of a house amounts to a levy upon the furniture in the upper part of the same house? An action of trespass was brought in this Court by Jabez Burchard, assignee of Henry H. Porter, against George Rees, sheriff of the city and county of Philadelphia, James G. Clark, John Hemphill and Mark Richards, to recover damages for taking the goods of the plaintiff. The case was tried on the 10th of February, 1836, at a Court of Nisi Prius held at Philadelphia, by Kennedy, J. and a verdict rendered for the plaintiff for the sum of $826; and now upon a rule which had been obtained to show cause why a new trial should not be granted, the facts appeared to be as follows: On the 25th of February, 1832, James G. Clark obtained a judgment by confession against Henry H. Porter for $1017, in the Supreme Court. On the 7th of March, 1832, a writ of fieri facias issued upon this judgment, returnable on the 31st of the same month, being the last return day of the March term, which was lodged in the sheriff's office on the day it issued. On the 14th of March, 1832, Henry H. Porter, the defendant in the judgment, executed an assignment of all his estate and effects to Sheldon Potter in trust for the benefit of his creditors. The assignment was duly recorded, and an inventory of the effects assigned was made by the assignee, and filed according to law. Porter, the assignor, carried on business as a bookseller and publisher on the ground floor of the building, and had furnished rooms in the upper' part of the same house. On the 16th of March, a sheriff's officer, named Heston, went with the fieri facias to the shop of Porter, where as it was testified by a witness who had been in the employment of Porter, he exhibited the writ; and being told that an assignment had been made, he went away; and returned on the same or the next day, when he was informed that an inventory had been made by the assignee, and that it was not necessary to take another. He then went away, saying, |