Charter v. Trevelyan, 11 CI. & F. 714. tion by or on behalf of the owner, and he might recover them from an innocent purchaser for value. The Sale of Goods Act, 56 & 57 Vict. c. 71, s. 24 (2) overrides this provision. The title to goods thus obtained does not revest upon conviction, though the convicting court may make an order for their restitution. Lapse of time has of itself no effect in determining the rights of the defrauded party. But lapse of time coupled with knowledge of the fraud may furnish evidence of intention to affirm, and will in any event increase the L&NWR chance that by change in the position of the parties or the acquisition of rights by a third party the right to rescind may be lost. Clough v. Co., L. R. 7 (4) Duress. § 4. Duress. A contract is voidable at the option of one of the In what it parties if he have entered into it under duress. consists. 1 Rolle, Abr. 688. Must affect promisor, Huscombev. p. 84. Atlee v. Backhouse, 3 M. & W. 633. and must be personal. Duress consists in actual or threatened violence or imprisonment; the subject of it must be the contracting party himself, or his wife, parent, or child; and it must be inflicted or threatened by the other party to the contract, or else by one acting with his knowledge and for his advantage.1 A contract entered into in order to relieve a third person from duress is not voidable on that ground; though a simple contract, the consideration for which was the discharge of a third party by the promisee from an illegal imprisonment, would be void for unreality of consideration. Nor is a promise voidable for duress which is made in *consideration of the release of goods from detention. If the detention is obviously wrongful the promise would be void for want of consideration; 2 if the [*178] 1 Morse v. Woodworth, 155 Mass. 233, H. & W. 308; Brown v. Pierce, 7 Wall. (U. S.) 205; Adams v. Irving Nat. Bk., 116 N. Y. 606; Morrill Nightingale, 93 Cal. 452. V. 2 Tolhurst v. Powers, 133 N. Y. 460, H. & W. 174. legality of the detention was doubtful the promise might Quasi-Con be supported by a compromise. But money paid for the See post, release of goods from wrongful detention may be recovered tract. back in virtue of the quasi-contractual relation created by the receipt of money by one person which rightfully belongs to another.1 § 5. Undue influence. (5) Undue influence: a arises from course cf or circum conduct stances or the rela I have mentioned that this use of the term Fraud has been wider and less precise in the chancery than in the common law courts. This followed necessarily from the remedies which they respectively administered. Common law gave damages for a wrong, and was compelled to define with care the wrong which furnished a cause of action. Equity refused specific performance of tions of a contract, or set aside a transaction, where one party had parties; acted unfairly by the other. Thus 'fraud' at common not from law is a false statement such as is described in the pre- statement. ceding section: fraud' in equity has often been used to mean unconscientious dealing. One form of such dealing is commonly described as the exercise of undue influence.' The subject can only be dealt with here in outline. Whether or no relief is granted in any given case must often depend on the view taken by the court of the character or tendency of a number of transactions extending over a considerable time. the definite influence. But we must find a definition of undue influence before Definition we proceed to consider and classify the circumstances of undue which create it, and we may find assistance towards this process of classification in certain principles which equity judges have laid down as to the enforcement of promises or gifts made for no consideration or for a consideration wholly disproportionate to the value of the thing promised or given. 1 Lonergan v. Buford, 148 U. S. 581. 8 Ch. 490. Presump tion of undue influence Kekewich v. Lord Selborne supplies a definition in The Earl of Aylesford v. Morris. Speaking of the cases which, in the language of *Lord Hardwicke, raise from the [*179] circumstances and conditions of the parties contracting 'Fraud does not here mean deceit or circumvention; it means an unconscientious use of the power arising out of these circumstances and conditions; and when the relative position of the parties is such as primâ facie to raise this presumption, the transaction cannot stand unless the person claiming the benefit of it is able to repel the presumption by contrary evidence, proving it to have been, in point of fact, fair, just, and reasonable.' The principles to which I alluded are these: (a) that equity will not enforce a gratuitous promise D. M. G.iss. even though it be under seal; Hoghton v. Wood v. (B) that the acceptance of a voluntary donation throws upon the person who accepts it the necessity of proving that the transaction is righteous;' (7) that inadequacy of consideration is regarded as an 8 Maddock, element in raising the presumption of undue influence or 423. Coles v. 9 Ves. 246. from inequality of parties: fraud; (8) but that mere inadequacy of consideration will not (according to the strong tendency of judicial opinion) amount to proof of either. So the question which we have to discuss may be put thus: - When a man demands equitable remedies, either as plaintiff or defendant, seeking to escape or avoid a grant or promise made gratuitously or upon a very inadequate consideration, what must he show in addition to this in order to raise the presumption that undue influence has been at work? We must first ask whether the parties were upon equal terms as to knowledge and capacity in respect of the transaction. They cannot be so if one is in present need or is uneducated or inexperienced. In ordinary cases each party to a bargain must take care of his own interest, and it will not be presumed that undue advantage or contrivance has been resorted to on either side; but in the case of "the expectant heir," or of persons under pressure without adequate protection, and in the case of dealings with uneducated, *igno[*180] rant persons, the burden of showing the fairness of the trans- Bolingbroke. action is thrown on the person who seeks to obtain the benefit of the App. Ca. contract.' Such persons were formerly protected in two modes which are no longer available. Usury laws avoided promises to pay interest beyond a certain rate per cent., and thus prevented extortionate loans of money.1 And the Court of Chancery adopted a rule that the purchaser of a reversionary interest might always be called on to show that he had given full value for his bargain, and thus a man was protected against the risk that the pressure of poverty might compel him to take an inadequate sum for the prospects of future wealth. The usury laws are repealed, and the rule framed by the Court of Chancery is set aside by 31 & 32 Vict. C. 4. But a catching bargain or an exorbitant rate of interest is none the less liable to be set aside by the Chancery Division where two parties deal on unequal terms as to age, knowledge, or position. Such a transaction is assumed to be unfair unless the party who has received benefit is able to show that it is in fact fair and reasonable.2 O'Rorke v. at p. 823. relation: Where the party who seeks redress is of full capacity, from has been within reach of good advice, and is in no such special immediate want as would put him at the mercy of an unscrupulous speculator, the exercise of undue influence Hoghton, will not be assumed; it must be proved, and this proof is supplied if it is shown that the donor understood what he 1 For usury laws see Stimson, Am. St. Law, §§ 4830-37; 3 Parsons on Cont. (8th ed.), p.* 153. 2 For a discussion of the principles governing the cases where one party is incapacitated by his mental condition or necessities from giving a real consent, see 2 Pomeroy, Eq. Jurisp., §§ 944-54. Hoghton v. 15 Beav. 299 Archer v. was doing. But where certain relations, parental or confidential, exist between the parties, a presumption of influence arises unless it be proved that the donor or promisor 7 Beav. 560. has been placed in such a position as will enable him to form an entirely free and unfettered judgment independent altogether of any sort of control.' parental; * The court will not necessarily set aside a gift or promise made by a child to its parent, by a client to his solicitor, by a patient to his medical man, by a cestui que trust to his trustee, by a ward to his guardian, or by any person to spiritual; his spiritual adviser; but such relations call for proof that the party benefited did not take advantage of his position. As was said by Lord Eldon in Huguenin v. Baseley, where a lady made over her property to a clergyman in whom she reposed confidence, 14 Vesey, 273. p. 300. 18 Ch. D. 196. Tate v. 2 Ch. 55. fiduciary. Where no presumption, influence [*181] The question is not whether she knew what she was doing, had done, or proposed to do, but how that intention was produced : whether all that care and providence was placed around her, as against those who advised her, which from their situation, and relation in respect to her, they were bound to exert on her behalf.' The law as laid down by Lord Eldon has been followed in a long series of decisions, of which one of the latest is Bainbrigge v. Browne, where a transaction between a father and children was set aside on the ground that the father had failed to show, as he was bound to do, that his children had independent advice in the matter, and full knowledge of the contents of the documents which they were signing. Nor is it enough that independent advice should be secured for the person subject to the influence arising from fiduciary relations. A knowledge of any material fact possessed by the buyer or donor and withheld by him. is sufficient to vitiate the transaction. Where there are no such relations between the parties as give rise to a presumption of influence, the burden of proof rests on the donor or promisor to show that undue |