transaction as was so proved in the cause, ought not to have led to any conclusion influencing the decision of the case; but as many such circumstances have been relied (1) upon, it may be expedient to examine how far such suspicions appear to be well founded.

*

It was contended that the son had taken an improper advantage of the distressed situation of his father, occasioned by the withhelding his annuity. I do not find any proof of this, but, on the contrary, it appears that there was no complaint made, and no ground of complaint on that subject. The father was, indeed, in circumstances which precluded him from incurring expenses or pecuniary liabilities, but that can only be referred to his own misfortunes; and it is to be observed that this part of his case is inconsistent with another, much relied upon, namely, that the undertaking by the son to prosecute the commission was no burden upon him, and therefore no consideration for the deed, because the property of the lunatic was ample to provide for the costs. If that were so, how could the distressed situation of the father prevent him from prosecuting those proceedings himself? And where was the inability to do so, which is alleged to have been taken advantage of by the son, as a means of depriving the father of that to which he was entitled ?

Another objection taken to the transaction was, that the father had no professional advice, Mr. O'Connor being exclusively the solicitor of the son. I think it is proved that Mr. O'Connor acted as solicitor for the father as well as the son, and that he was the person whom the father was so far in the habit of consulting as to make him the most natural person for him to employ upon the matter of the lunacy. The evidence of James Blakeney, examined by the defendant, and the letters of the 3rd of February, 1828, and the 10th of April, sufficiently prove this. It is true that he also acted as solicitor for the son, and was thereby placed in the difficult and responsible situation of acting for two clients in a matter to be settled between them; but the objection, if any, must be that Mr. O'Connor betrayed the interest of his client the father, in favour of his client the son, and not that the father had not professional assistance. The ground upon which it was contended that the solicitor betrayed the interests of his client the father, rests upon the written instructions and the drafts of the deed which he produced for the purpose of proving the falsehood of the defence set up in the answer. The instructions were taken down at the (1) Corrected from West's report: "replied " in Cl. & Fin.

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[ *314 ]

meeting between the father and the son; they certainly are very
short, but they embrace the whole of the arrangement as afterwards
carried out; they provide that the father should give up his expect-
ancy in the Castleboy estate, except a life-interest for himself, and
that the son should prosecute the commission. This appears to
have been all that was at that time settled. When the solicitor
afterwards prepared the instructions for counsel, and when the
counsel employed for each of the parties proceeded to prepare the
draft of the deed, it naturally occurred to them to inquire whether
the life-estate of the father was to be dispunishable of waste, and
whether he was to have a leasing power. The absence of provisions
for these purposes in the deed is not insisted upon or alluded to as
an objection in the answer; no explanation therefore could be
expected from the plaintiff. That many opportunities occurred of
discussing this and all other matters connected with the proposed
arrangement, is proved by Mr. O'Connor and by Mr. Waller
O'Grady, in whose father's house the defendant was staying; and
that additional details were arranged, after the written instructions
taken by Mr. O'Connor, is proved by the fact, that by the deed the
Castleboy estates were to be settled to the same uses as the
Roxborough estate, in which the son had only a life-estate; whereas
the instructions would have given to him the fee; an alteration
which it is not to be supposed the son would have consented to, if
it had not been stipulated for by or on behalf of the father. What
passed upon this subject, or relative to the leasing power, or of the
life-estate not being dispunishable for waste, is not stated, no
explanation being called for by the defence set up; but as the
defendant does not complain of the deed because it does not contain
such provisions, why is fraud and imposition to be assumed on
behalf of a party, who, with a deed before him, as stated in the bill,
does not suggest any such fraud or imposition, and against a party
who has thus been deprived of an opportunity of explaining the
circumstances which led to the omission of them? Incidentally
however, and by accident, it is proved that the father expressed a
desire that the Roxborough and Castleboy estates should be reunited
in his family, which tends to explain the absence of a leasing
power for any terms which could be turned to profit by the tenant
for life; and that, upon being consulted whether he wished to have
a power of making any provision out of the estate for any of his
younger children, he answered that he did not, which explains the
absence of a power to cut timber, as it may be assumed that he

would have exercised such power for that purpose. It appears to me, therefore, that there were not sufficient grounds for the suspicion of unfair dealing, which have been relied upon, and that, regard being had to the matters put in issue by the pleadings, such suspicion ought not to have influenced the decision of the cause.

It was, however, open to the parties to rely upon objections appearing upon the face of the instrument *upon which relief was prayed. These objections, though divided into many heads in the argument, may be reduced to four: first, that the contract was illegal as partaking of champerty and maintenance; secondly, that it was illegal as against public policy, and a fraud upon the Great Seal in the matter of the lunacy; thirdly, that there was no mutuality in its provisions; fourthly, that the covenant was voluntary, being without any, or at least without any adequate consideration.

As to the first of these objections, the answer is obvious: there was no suit to be maintained, and no property in litigation to be divided.

Upon the second objection, no case was cited; and I have not been able to understand how an arrangement between parties expecting property upon the decease of a lunatic, can be a fraud upon the Great Seal in the matter of the lunacy, or, upon that ground, void as against public policy. The thing to be looked to in matters. of lunacy, is the protection of the person and property of the lunatic, and for that purpose the encouragement to parties to interfere and to bring the facts before the Court. It is obvious that this object would in many cases be impeded, rather than promoted, by holding that all agreements relative to the costs of the proceedings, or the ultimate division of the property, were void. I have not any principle or authority cited, in support of this objection. Agreements as to expectancies have been enforced in equity, which appeared to be open to serious objections which do not apply to the present case.

In support of the third objection, that there was no mutuality in the contract, some well-known cases were cited; but the question here is, whether, after the risk incurred, and the benefit secured, and the consideration thereby paid, the father can, on his part, resist the performance of the contract which led to those results? If this objection could prevail in this case, how could decrees for specific performance, where the defendant only signed the agreement, or upon part performance, be maintained? In those cases there is no mutuality in the sense in which the word is used in the

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[317]

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present argument, because the contract being within the Statute of Frauds could not have been originally enforced against the plaintiff; but he having performed his part, is entitled to compel the defendant to perform his.

Fourthly, the supposition that the covenant was merely voluntary is negatived by the defendant's own statement of the case; for beyond all question some consideration proceeded from the son. The object of having a commission of lunacy prosecuted, the father's inability to undertake it from whatever cause proceeding, and the fact of the son's having taken upon himself the prosecution of it, are facts common to both parties, and show that the covenant was not merely voluntary; leaving the question to be considered how far it can be objected to upon the ground of the consideration being inadequate. The situation of the parties and the properties in question, appear to me to afford a complete answer to this objection. The son was in possession of the family estate, but as tenant for life only; from the relative ages of the father and of the son, and of the supposed lunatic, the probability was much in favour of the son, by the death of his father before the lunatic, succeeding as heir to whatever estate might descend from him; but there was a strong apprehension, and, as the event proved, a great probability that without *active measures to counteract the fraudulent projects of others, no part of the lunatic's estate would descend to either of them. It may well be supposed to have been an object of the father, who is proved to have been anxious for the re-union of the two estates, that the lunatic's estate should be settled in the same manner as the family estates. The agreement with the son effected all that could be done to secure the lunatic's estate to the family, and, if it should descend to the father, secured its re-union with the family property. By what scale of money consideration are these objects to be estimated? The impossibility of estimating them, has led to the exemption of family arrangements from the rules which affect others. The consideration in this and in other such cases is compounded partly of value and partly of love and affection. The ages of the parties made the father's expectancy of but little value; but if he had been certain of himself succeeding as heir to the lunatic, his own personal use of the estate would probably have been confined to a life-interest. This, in ordinary cases, would have been the natural course, and not likely to be departed from where the father had expressed his anxious wish that the two estates should be held together. But there were

several younger children unprovided for, and it is assumed that the father must have desired the dominion over the estate for the purpose of making some further provision for them. Experience does not prove that the wants of the younger children generally induce fathers to deprive the eldest son of much of the inheritance; but, in this case, it is proved that upon being distinctly asked the question, he answered, that he did not wish to have any power over the estate for that purpose. If this be true, and it is sworn to by two witnesses,--the absence from the covenant of any power to make leases and to cut timber is very much explained.

There

is no allegation or proof that it was part of the agreement that the father should have such powers. The omission of these powers forms no part of the father's case; but if the contract be otherwise binding, is the absence of such powers in an arrangement between. a father and son such cogent proof of imposition as to invalidate it? The arrangement of 1830 is open to the same objection, and I cannot but consider the parties interested under that settlement as the real defendants in this case. The father appears to have but little, if any, interest in the contest. That arrangement of 1830 took place with sufficient notice of the previous arrangement with the eldest son, and therefore cannot prevail against it, if such prior arrangement was in itself binding.

Being of opinion that the objections stated to this arrangement are not available for the purpose of depriving the appellant of the benefit of it, I am also of opinion that he is entitled to have it completed by a decree; and as the timber has been cut with full knowledge of the appellant's title, and in defiance of the father's covenant, I think it impossible to deny to the appellant the account he prays upon that subject. I think also that the decree below ought to have been made in his favour with costs. There can be no costs of the appeal.

LORD WYNFORD [delivered judgment concurring with that of the LORD CHANCELLOR].

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JOHN COPLAND v. MARGARET TOULMIN AND OTHERS.

(7 Clark & Finnelly, 349-379.)

[SEE this case reported from 3 Y. & C. Ex. Eq. 625, at p. 414, below, at the end of which report (p. 428) Lord COTTENHAM'S judgment on this appeal will be found reported.]

1838.

May 1, 11, 25, 28, 31. June 1. 1840. June 1.

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