the compounding of the interest, and the fact that the plaintiff had no legal advice. Relief was granted in the case of Chesterfield v. Janssen (c). The poverty and ignorance of the plaintiff, and the absence of independent advice, throw upon the defendant the onus of proving the transaction was fair and reasonable: Fry v. Lane (d). There has been no delay on the part of the plaintiff which has prejudiced the estate of the deceased, and unless something prejudicial has occurred, the lapse of time in this case will not operate as a bar to the relief sought: Rees v. De Bernardy (e); In re Garnett; Gandy v. Macaulay (ƒ). Counsel also cited the following cases: -Lindsay Petroleum Co. v. Hurd (g); Bennett v. Tucker (h).

Topp (with him Maxwell) for the defendant-The Court will not interfere with a bargain merely upon the ground that the interest is very high, or "usurious," as it was called. The principle applicable to reversionary interests, where the Court has set aside what were termed "catching bargains with expectant heirs," does not apply to a vested interest such as this was. The Court cannot set aside this deed; it is incumbent upon the plaintiff to establish coercion or oppression. There has been such great delay that the plaintiff should not be allowed to set up this claim; she has known of these transactions for twelve years. Relief should have been sought within a reasonable time: Carter v. Silber (i). In the case of Urquhart v. M'Pherson (k) it was held that the Statute of Limitations would run, not from the actual discovery of the fraud, but from the time when with due liligence the fraud might have been discovered. That will apply to the argument attacking the bonus as well as to the other charges of unfairness. There is no rule of law against the charging of compound interest.

Pigott in reply.

Cur, adv. vult.

A'BECKETT, J. In July 1886 the plaintiff, aged twenty-three, the wife of a carpenter, executed a deed to which her husband

(c) [1750] 2 Ves. 125.

(d) [1888] 40 Ch. D. 312.

(e) [1896] 2 Ch. 437.

[1885] 31 Ch. D. 1.

(9] [1874] L.R. 5 P.C. 221.
(h) [1882] 8 V.L. R. (E.) 20.
(i) [1892] 2 Ch. 278.

(k) [1880] 6 V.L.R. (E.) 17.

1898

MALONEY

v. THE TRUSTEES EXECUTORS

AND AGENCY COMPANY LIMITED.

A'Beckett, J.

1898 MALONEY

v.

THE TRUSTEES EXECUTORS

AND
AGENCY

COMPANY
LIMITED.

A'Beckett, J.

and one Benjamin Marks were parties, by which she acknowledged that she had received 2201., borrowed from Marks, and secured its repayment by an assignment of all her estate and interest under the will of her late father, William Henry Waite, and in the matter of the trusts of Waite's settled estates and any other property to which she might be entitled in expectancy reversion, remainder, or otherwise (with a specified exception). The mortgage also secured a bonus of 100l. and interest at 201. per cent. per annum on the sum borrowed and the bonus, and provided that the deed should be a security for any further sums of money which Marks might advance, with interest at 201. per cent. Interest was to be compounded if not paid at the periods provided. The plaintiff had no solicitor acting for her or other independent adviser. Her husband took the money which was paid over when the mortgage was executed. After it was executed he applied to Marks from time to time for further loans. Sometimes he obtained money and sometimes goods, which Marks wished to get rid of, and he charged the price he put on them as an advance. He and Marks procured the wife's signature to a series of acknowledgments, treating these amounts as advances to her, to bear interest at 20l. per cent., under the mortgage. No interest was paid on any of the sums advanced. Marks died before anything was received under his security, and the defendant company, his executor, proved his will. In June 1897 a sum of 936l. became receivable in respect of the plaintiff's share in her father's estate. In May 1898, after some correspondence with the defendant's solicitors, the plaintiff brought this action, seeking to have the mortgage deed declared void and to escape from liability under the receipt which she had signed, but offering to repay the sums actually advanced to her, with interest at 51. per cent. As grounds for this relief, the statement of claim alleges that the plaintiff was ignorant of business, and had no independent advice; that she did not authorize her husband to obtain further advances; and that the deed and the receipts should be declared void on the ground of unfair dealing, misrepresentation, and want of consideration. The two last grounds are unsupported by any evidence. Marks being dead, the defendant has no means

of testing the truth of the statements made to his
discredit; but I feel satisfied that, even if I could have
Marks's version of the facts, I should come to the conclusion
that he made what the law calls an unconscionable bargain, and
that the process by which the wife was induced to adopt loans
and sales of goods to her husband, and treat them as advances
to herself, was an injurious wasting of the wife's estate. I, never-
theless, feel that I cannot allow the plaintiff to escape the conse-
quences of her recognition of these dealings with her husband
as advances to herself. Her signature is utterly unlike that of
an illiterate person, but she has sworn that she is unable to read
plain writing. Even if I accepted without doubt her statement
as to this, I could not as against the defendant treat her as
ignorant of the contents of the documents. If she really could not
read, Marks was at least entitled to assume from her signature
that she could. Although I do not approve of her husband's
conduct as described by himself, I cannot convict him of assisting
Marks in perpetrating a series of frauds upon his wife by
obtaining her signature to documents the nature of which was
misrepresented. It was unwise of her to sanction the course of
dealing, but it was competent for her to acknowledge the
advances to her husband as advances made with her approval,
and binding upon her, and Marks obtained from her what may
have appeared to him to have been deliberate assent, testified by
her signature.
This leaves as subjects of complaint a bonus of
1007. on an advance of 220l. and compound interest at 201. per
cent. On the authority of James v. Kerr (1) I hold that the
bonus was a charge which cannot be sustained. As to the exces-
sive rate of interest, it is clear on authority that if the property
over which security was given had been a reversionary interest
the exorbitant charge would be reduced, and a reasonable rate
substituted. The rules applicable to sales of reversionary
interests are applicable to mortgages of them: See Emmet v.
Tottenham (m); Bromley v. Smith (n). It is also clear that the
mere fact that the rate of interest was excessive would not enable
the
person who agreed to pay it to come into Court and success-
(1) 40 Ch. D., at p. 460.
(m) [1861] 10 Jur. N.S. 1090.

1898

MALONEY

v.

THE TRUSTEES EXECUTORS

AND AGENCY COMPANY

LIMITED.

A'Beckett, J.

(n) [1859] 26 Beav. 644.

1898 MALONEY

V.

THE TRUSTEES EXECUTORS

AND AGENCY COMPANY LIMITED.

A'Beckett, J.

fully ask to have the rate reduced. The property which the plaintiff assigned by way of security, as set out in the statement of claim and described in the deed, does not appear to be reversionary as to the interest under the plaintiff's father's will, but the property subject to the trusts of a settled estate may have been reversionary. It appears, however, that so far as any capacity for present enjoyment was concerned, the property was as unattainable by the plaintiff as if it had been reversionary. This futurity of benefit was present to the minds of the parties when the security was given. Mr. Evans, who acted as solicitor for Marks, called as a witness for the defendant, states:-"The receipt of the money was contingent on the death of Mr. Waite, who Mr. Marks said might live another ten or twelve years. They thoroughly understood this, and that the money could not be got for that length of time." Receipt depending on this contingency may account for the fact that nothing was obtainable until June 1897. How the delay occurred is not clear on the evidence, and I feel some doubt as to whether on the pleadings and evidence I am entitled to regard the difficulties and length of time which protracted realization as due to the character of the plaintiff's interest. The whole matter is left in uncertainty. I think, however, I am not exceeding the limits laid down by authority in deciding that there is in this case such a combination of circumstances as to the position of the parties, the nature of the security given, and the means by which the sum originally secured was increased, as to justify the Court in relieving the plaintiff from the unconscionable bargain into which she entered on the terms on which such relief is usually given. As to the delay in proceeding, I think the case falls within the rule that confirmation or acquiescence will be of no avail whilst the reversioner continues in the same situation as when he entered into the contract, for in such cases it has always been presumed that the same distress which pressed him to enter into the contract prevented him from coming to set it aside: See Gowland v. De Farar (o). The disadvantages under which the plaintiff laboured continued up to the commencement of these proceedings, and I think she did not

(0) [1810] 17 Vesey 26.

clearly understand her position under the documents which she had signed, or receive any kind of account showing the amount sought to be charged against her until after June 1897.

As

As to the terms upon which relief will be granted, it appears, to be the rule of the Court not to give compound interest in these cases; but as the rate of interest here is higher than in England I shall allow 6 per cent., not 5 per cent. as in England. to costs, Pollock on Contracts, after reviewing the cases on this branch of the law, states the general rule to be to give no costs on either side. The charge of misrepresentation, which was not sustained, has not in any way increased the costs. Relief has in many cases been given where charges of actual fraud were made and not sustained, as in St. Albyn v. Harding (p); James v. Kerr (q). The circumstances affecting discretion as to costs vary largely. I shall give none to either side. I think that a declaratory judgment will be sufficient to enable the defendant to receive what it is entitled to under its security, and will liberate in favour of the plaintiff any balance of the fund in hand, and any unrealized or unascertained interest over which security was given.

Declare that the provisions in the indenture of the 23rd day of July 1886 for a bonus of 100l., for interest at 20 per cent. for compound interest, and for commission at 20 per cent. on sums to be advanced under the security thereby effected, are void as against the plaintiff, but that the said indenture is a valid security for 2201., and for the further advances set out in paragraph 7 of the statement of claim, with interest thereon at the rate of 6 per cent. per annum from the date of the said indenture, and from the dates in such paragraph respectively set out until repayment.

Order that the plaintiff and defendant bear their own costs of this action up to and inclusive of this judgment.

Reserve leave to either party to apply as advised.

Solicitors for plaintiff: Price & Hargrave.
Solicitors for defendant: Godfrey & Godfrey.

W. H. M.

1898

MALONEY

V.

THE TRUSTEES EXECUTORS

AND AGENCY COMPANY

LIMITED.

A'Beckett, J.

(p) [1859] 27 Beavan 11.

(2) L.R. 40 Ch. D. 460.