deed bearing date the 12th of June, 1775, the rent-charge was granted in consideration of £5,100, with a covenant to levy a fine at the expence of Gwynne, and a bond of equal date in £10,000, penalty was given to suffer a recovery when he should come into possession.-By deeds of equal date, the annuity of £400 per annum was granted to Gwynne, secured by a transfer of long annuities to Heaton the son (the present defendant), and the defendant Baker, a friend of Heaton's, with power to Heaton, in case of the death of either of them, to appoint new trustees. It does not appear whether this transfer ever took place. It was agreed between the parties, that the fine should be levied immediately, and the expence deducted out of the first payments of the annuity; the fine was accordingly levied at the great sessions (the estate being in Caermarthenshire), and a charge made for the expences of £314. 15s. 2d. Deducting this sum for expences, £85. 4s. the balance of one year's annuity only was paid, though the father survived eighteen months. There was no confirmation of the bargain by Gwynne, upon the death of the father, but he offered the present defendant Heaton (his father being then dead) £1000 to cancel the deeds; which being refused, this bill was filed.

Mr. Attorney-General, and Mr. Price, for the plaintiff (after stating the case): On the part of Heaton, the defence is, that this was the offer of Gwynne, and that it was only a good bargain: It is true, a bargain is not to be destroyed where there is any measure of equality. In those cases, it is always upon the proposal of the person who is to give the good bargain. Take the comparison;' an annuity in fee, at the death of a man eighty-one years old, is estimated at seventeen years purchase, and the life of eighty-one, at seven years purchase, for which two years purchase is the utmost value upon Dr. Halley's calculations. This is decisive against Heaton; it is an advantage that no man in a common, situation would accede to: Gwynne is to give every possible security, and at his own expence, and, on the other side, to submit that Heaton, should name the trustees, and, upon the death of either, should appoint new ones. This is contrary to the common mode of dealing between man and man, and it is taking an unconscientious advantage of his situation. In matters of a common kind, if a purchaser has a little advantage, the Court has it in its discretion, whether to take it away. From the time of Lord Guildford, to the present, there is no case like this, where relief has not been. granted, except upon a confirmation. He was doubtful in Nott * See what Lord Hardwicke says on the subject of confirmation, Cole v. Gib◄ son, 1 Ves. 503. and seq. (a)

[(a) Et vide Stephens v. Lord Bateman, post, 22. Carpenter v. Heriot, 1 Eden, 338. Crowe v. Ballard, post, vol. iii. 117. S. C. 1 Ves. jun. 215. 2 Cox, 253. Murray v. Palmer, 2 Sch.

& Lef. 486. Morse v. Royal, 12 Ves. 355. Roche v. O'Brien, 1 Ba. & Be. 330. Wood v. Downes, 18 Ves. 120. Dunbar v. Tredennick, 2 Ba. & Be. 304.]

v. Hill,

v. Hill, 1 Vern. 167. whether this Court could meddle with a legal security, but that cause was reheard before Lord Jefferys, and reversed as being an unconscionable bargain. According to the decision in that case, have been Berney v. Pitt, 2 Ch. R. 396. 2 Vern. 14. Wiseman v. Beake, 2 Vern. 121. where the plaintiff was not a young heir. Twistleton v. Griffith, 1 P. W. 310. Curwyn v. Milner, 3 P. W. 292, (note.) Cole v. Gibbons, 3 P. W. 290. Sir William Stanhope v. Cope, 2 Atk. 231. Lord Chesterfield v. Janssen, 2 Ves. 125. and 1 Atk. S01. where Lord Hardwicke's principle was, that wherever there was an unconscionable bargain entered into by a young heir, this Court should relieve.

Mr. Ambler (for the defendant): Mr. Heaton did not in general deal in annuities.-It is not necessary in this case to consider the case of young heirs dependant on their parents.-This is the case of a gentleman living on his own fortune, applied to by the plaintiff, invited into the bargain, and the terms deliberately settled by the plaintiff and his friends.-The question is singly, whether this agreement is upon such an inadequate consideration that this Court will set it aside. The plaintiff was intitled to a remainder in an estate of £2,000 a year, with limitations over to his brother and several other persons, and had incurred the displeasure of his father, by marrying a servant in the house; on which account his father, at his death, gave all the property he could dispose of to the second son. The plaintiff put the advertisement into the papers, offering the rent-charge of £300 upon the death of an aged person. His agent wrote to the defendant, proposing the terms both for the perpetual rent-charge, and for the annuity; and it comes out in evidence, that the same terms had been proposed to other persons. The plaintiff was advised that all that he could do was to levy a fine, which would bar his own issue, but could not suffer a recovery till the death of his father. The plaintiff told Heaton, that he had given his agent authority to propose the terms.-The fine was levied, and the £2,300 paid; the plaintiff was perfectly satisfied that Heaton should name the trustees.-If the father had lived seven years, there could not have been a pretence to come into this Court to set the transaction aside.-There have been a multitude of cases in this Court, where persons have obtained an advantage, not by fraud, but by a fair bargain, that the Court would not deprive them of it.-The old gentleman had no infirmity, or circumstance of disorder, to shew him to be in danger of dying. This is not such a consideration as this Court will think unreasonable, and set aside.-Was there no risk to be run by Mr. Heaton? I have stated that he could not have the rent-charge till the death of the father; he has it not now, and if no recovery should be suffered, and the plaintiff not have a son, he never may have it: therefore it depends upon the contingency. This is not a bill by Heaton, to compel the suffering of a recovery; if it was, perhaps

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the Court might refuse to assist him: I do not know that the Court would refuse. Upon the whole, the circumstances are not such as to make void the transaction, they are not unreasonable or unconscientious terms.-The cases all stand upon their own circumstances; the only resemblance this bears to them is, that it is the case of an estate tail, after the death of the father.

Mr. Mansfield (on the same side): Every proposal came from Gwynne: there was no haggling about the price; but his language now is, I think I have given too much, and therefore I come into equity to rescind the transaction.-This is the fair representation, but the most extraordinary case ever produced. The draft was approved by counsel, ou the part of. Gwynne.-He is not a young heir in the sense of any of the cases, nor is this at all like them.As to the trustees being named by Heaton: it was of more consequence to him than to Gwynne who were the trustees, as the long annuities continued his property, though they were a security for the annuity.-The trustees are not impeached, no objection whatever was made at the time, how can it be objected as a mark of fraud now? As to the rent-charge being free from land-tax, the agreement was to grant a clear rent-charge: to be so, it must be free from land-tax.*-As to the expences being deducted, Heaton gets nothing by that; the borrower always pays expences; which were increased by the journies, and the expences in the court of great sessions, which are very large, compared with those in the Common Pleas.-How is Gwynne a young heir? He is not a young man following expensive pleasures.-What would a prudent man advise him to do, but to procure a permanent provision during the life of his father? Is there any ground of policy here to overturn a bargain, the object of which was a provision for himself,

6

This point has been much contested. In Brewster v. Kitchen, 1 Ld. Raym. 317. 1 Salk. 198. a clear annuity was held to be free from land-tax. But in the case of Green v. Maygold, 8 Vin. Abr. 411. tit. Derise, £30 a year was to be paid free from all deductions, the Master of the Rolls held land-tax not to be one of those deductions. In the Duke of Ancaster v. Lady Sherrard, 2 Ves. 499, jointures, not exceeding £1,000 per annum was held not to be free from landtax. In Villareal v. Lord Galway, Lord Camden was of opinion that such a rent was not clear of land-tax, the words of this devise may be seen post, 292. n. where it is cited for another purpose. His Lordship's reasoning on this part of the case is as follows: "The question then is, whether the rent-charge is to be free from land-tax by these words, clear yearly payment.' I am of opinion it is not, because all such rents are charged with the land-tax by the act of par liament, with this exception only, that the act shall not make void the agree ment between landlords and tenants. This act is an annual charge, and every person possessed of such an estate, must take it with its parliamentary burthen, unless the grantor has expressly discharged it; the land-tax is a collateral duty imposed by the legislature, and must therefore be paid by the owner of the rents, unless it be otherwise agreed between the parties and so expressed. Notwithstanding these cases, however, the point seems at present to be settled, that such a rent-charge is free from land-tax." See Bradbury v. Wright, Dougl. 602. citing the case of Champernoon v. Champernoon, Ch. 1780, where the words were "free from taxes," and the aunuity was held to be clear of land-tax.

his wife, and a probable family during the life of his father? Are the means by which he got that provision improper? He could give no security; what could he do more proper than to grant a rentcharge out of the estate? This is not a rent-charge to exhaust the estate, to render him indigent when he should come into possession of it; the means are not reprehensible in any respect. This is not within the ground of the cases.-The only ground here is, that by the means of certain calculations they have found out that the sum is too large. There is no case where the price of contingencies has been the ground for setting aside a bargain.-Calculations, though very useful as to large numbers, do not apply to individuals. As far as these observations have weight, they afford an answer to the cases.-The cases are very short.-In Nott v. Hill no circumstances are stated; but, upon the face of it, it was very enormous, it was to make the man a beggar after the father's death.Berny v. Pitt, was on the ground of his being a young heir, whose extravagance was fed by usurers.-Wiseman's case is not of so young a man, but the Court was struck with the enormity of ten for one.-Twistleton v. Griffith shews a reason for the determination, it was fraudulent and deceitful; the purchaser had advised the son not to sell the reversion to his father; this bears no resèmblance to the present case, where there is no artifice or misrepresentation.-In Chesterfield v. Janssen, it is laid down, that every case must depend upon its own circumstances; and it is enough, in the present case, that there are no circumstances of fraud or misrepresentation, and that the plaintiff is not a young heir, in the sense here meant.

Mr. Madocks (on the same side):-The event can make no alteration, when the conveyance is perfect, though it does where the contract is not executed, as where the party dies before the execution of the deeds.-It must be taken as it stood at the time when it was proposed to Heaton: and the question is, whether he ought or ought not to have taken it ?-If he ought to have refused it, as being an unconscionable bargain, it must be on the ground that it was with an heir in distress, apparently an unconscientious bargain. The Court cannot set aside a bargain even on account of a monstrous advantage taken. 2 Atk. 251.-It must be either marriage brokage, or made with an heir or person in distress. Batty v. Lloyd, 1 Vern. 141. Hobson v. Trevor, 2 P. W. 191. Dews v. Brandt, Sel. Ca. tem. Ld. King, 7. (13 Vi. 548.)

Lord Chancellor.-A remainder-man may sell, or give away. his remainder, and the Court will not take it away from the purchaser or donee.-An inadequate consideration is not alone sufficient to vitiate the contract, although in order to do so, the consideration must be inadequate; where it is sold for a sum grossly inadequate, the Court has never suffered it to stand.-There is no

case

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case in the books very like this.-Here the evidence is not sufficient between the parties.-That read this morning, (the defendant's) does not contradict the father's being more infirm at the time of the transaction than formerly.-The cause has been brought on rather too carelessly, they should have stated the real proportion of value, in order to show whether it was grossly inadequate.

Mr. Bicknell (on the same side) cited Gilb. Chan. 291, 292. that where the father withholds subsistence from the son, if he enters into such a contract, equity will not relieve against it.

Mr. Attorney-General (in reply):—It is extraordinary to contend that the Court will not assist the plaintiff, though it would not assist Heaton in a bill filed to compel the suffering a recovery. No case puzzles me so much as one where the Court will assist neither party. It is certainly true, that courts have no censorial authority, but it does not follow from thence, that they can give no relief. The rules of morals, honeste vivere, alienum non lædere, suum cuique tribuere, do not all apply to courts of justice.Honeste vivere is not their object, suum cuique tribuere is their proper ground, but they will prevent one man from injuring another: on this foundation stands the action upon the case.-If the bargain is beyond the limitation the law has fixed, it will punish. But there are cases which are not illegal, but which still are unconscientious. If a man finds another in distress, and supplies him on unconscientious terms, the Court, in relieving him, enforces the rule of morality.-The naming the trustees, and the power of appointing in case of death, are not answered by their being honest men; had the parties been on equal terms it never could have been so.-There is no evidence that the four per cent. annuities were ever transferred ; no declaration of trust appears: this is very unequal to the security given for the rent-charge.—But take it from the answer, that the four per cent. annuities were transferred in December, the treaty was in June: the one party had the whole security immediately: the other had not the security he treated for, which was to be as good as that given for the rentcharge. The construction of the words clear rent-charge does not admit of a doubt; even at market a clear rent-charge means subject to land-tax*.-As to the enormous sum paid for the fine, it has been treated as wise in Gwynne to come to Heaton for an immediate subsistence; surely he did not mean in 1773, to purchase subsistence in 1775, the fine amounted to three-fourths of the first year's annuity. Then it is said, that this is not the case of a young heir. I do not presume the Court has gone on the idea of relieving the father.-Gwynne was a young man just of age-his

* Vide ante, p. 4, note,

estate