1834. KING v. HAMLET. he might have learned, had he taken due pains, goes for nothing. At the very least, much slighter evidence will be sufficient, in this case, to fix him with a knowledge of the whole, than where he was not proved or admitted to have been at all aware of what was going on. It appears not merely from the answer of the Defendant, but from the evidence in the cause, that Mr. Hamlet communicated, through his agent Mr. Newland, to persons, whom he believed to be Lord Lorton's agents, the whole particulars of the transaction. This, however, goes for very little, except as shewing that he acted with good faith and is entitled to credit, when he represents that he refused to engage in the dealing without the father's knowledge and consent. But the evidence goes much farther. Mr. Anthony Lefroy, who is Lord Lorton's son-in-law, and the brother-in-law of the Plaintiff, swears that he went to Mr. Newland, at the request, and on the behalf of Lord Lorton. Mr. Newland swears to having distinctly told him the nature of the loan, and called his attention to the great loss which would be sustained by a resale of the goods; and he adds, that Mr. Anthony Lefroy said, "never mind the sacrifice, so that the estate is saved." Now, this is uncontradicted; for Mr. Anthony Lefroy, who swears that no such communication was ever made to him by Newland, only speaks "to the best of his now recollection." It would be too much to suppose that one of these witnesses had perjured himself because the other did not recollect the communication, and because it may appear improbable that he should have forgotten such a disclosure, upon which he had made such a remark. It must, therefore, I think, be taken to be proved that a near connection of Lord Lorton, sent by him to attend a meeting upon this business on his behalf, was informed by Mr. Hamlet's agent of the particulars of the transaction; and this is now before the Court much more plainly plainly than it was before, both because the observation made by Mr. Anthony Lefroy is now, for the first time, in evidence, and also because the important circumstance is now first disclosed, that he attended on the part of Lord Lorton, and at his desire. Now, although I consider this as a fact of considerable weight, yet it might, by itself, be insufficient to bring the case within the principle; and it would, besides, be open to the remark that Newland did not tell Serjt. Lefroy, although he was the person principally sent to confer with him, was the experienced man of business, and was by at the time reading the draft. But there is another circumstance in the cause of great moment. Lord Lorton is examined; and he does not give an absolute and unqualified denial of all knowledge of the loan being in goods. He only swears, in his deposition, to his ignorance, before the execution of the mortgage, that goods were in any part the consideration of that mortgage; and also that, to the best of his recollection," he knew nothing respecting the mortgage, or its existence, before its execution." Upon which the remark is most obvious, that if he did not, at that time, know of the existence of a mortgage, he could not, by possibility, have known that goods were part of its consideration; and that, therefore, this negative testimony amounts to nothing, and is quite consistent with his knowing that there was a negotiation on foot for a loan in goods; nay, it is consistent with Mr. Anthony Lefroy having repeated to him the conversation with Mr. Newland, which the former only says he did not repeat, "so far as he recollects." It may be further noted, that the interrogatory to Lord Lorton is framed in such a way as to obtain from him a restricted answer, confining him to a negation of knowledge, connected with the mortgage. 1834. KING v. HAMLET. 1834. KING V. HAMLET. This remark upon Lord Lorton's deposition lays the foundation for another upon the omission to call Ferrall, -a circumstance which, but for the defect of that deposition, I should have been less disposed to press. Ferrall, according to Lord Lorton's account, had volunteered his information that Mr. King "was in the hands of sharpers." Upon this his Lordship saw him repeatedly, and learned from him that a transaction was then going on with Mr. Hamlet, for the purpose of raising money by post obit. Upon this information his Lordship acted, sending the Lefroys to see Newland; and himself having an interview with Newland, in consequence of what Ferrall had told him. Which party ought to have called Ferrall? Clearly not the Defendant; for although the affidavits on the motion gave no warning of the great hostility of his language towards Mr. Hamlet and his agents, yet they sufficiently shewed that he had been acting as an informer against them; and as to his being in league with the Defendant, because Newland says he had known him before, I take that to be a refinement; for Newland also swears most positively, that he came to him on this occasion from Burt, to ask about a loan for a client of Burt; that is, for Mr. King, who then employed Burt. I do not consider, therefore, that any observation whatever arises upon the fact of the Defendant not having examined Ferrall. So, upon the former occasion, I did not consider that the Plaintiff could be made answerable for not producing an affidavit from him, because he had no means of compelling him to make one. But now, when he might have produced him, no explanation is given of his absence. If, indeed, Ferrall was not prepared to deny the account given by Newland of what he had said touching Lord Lorton's knowledge of and assent to the whole transaction, his not being produced is very easily under understood; and as that was also stated in Newland's affidavit, it seems strange that those concerned for the Plaintiff did not inquire whether or not Ferrall would, if examined, contradict it. With this observation I leave the subject of Ferrall not being examined, by no means intending to treat him as the witness of the Plaintiff, or as a person whom the Plaintiff was bound to call; still less as the agent of the Plaintiff, or Lord Lorton, but as Lord Lorton's informant, on whose suggestions he had acted, and of whose representations to Newland, as well as of the importance of contradicting them, they were fully aware. But when the case stands thus as to Lord Lorton's alleged knowledge of the particular nature and details of the transaction, the loan by way of goods, it becomes most material to recollect that it is clearly proved (indeed Lord Lorton has distinctly admitted) that he knew all the while the general nature of the dealing-knew that his son was dealing upon his expectancy. Even had the case stopped here, it might be contended that there is no instance of relief, where only that degree of knowledge was brought home to the father. Lord Lorton is aware of what his son is about; knows that he is mortgaging his reversion in the estates of which he is himself in possession as tenant for life, acts upon that knowledge, sends his professional adviser and son-in-law to treat for an assignment to himself of that very security which he is apprised is about to be given over that very reversion; and in consequence of the unfortunate estrangement which appears then to have kept them apart, he has no communication with his son on the subject. I will not say that this knowledge of itself, and in these circumstances, is sufficient to preclude the interference of the Court, but there is not a similar case as far as I know in which the Court has interposed; and assuredly 1834. KING v. HAMLET. 1834. KING บ. HAMLET. this knowledge was quite enough to call for further enquiry into all the particulars, which the persons he was put in communication with could have told him, as they swear they told his son-in-law; nay, which his son, the Plaintiff, might have told him through a third person, through the son-in-law, the solicitor, or some other by whose intervention the inquiry could have been conducted. Taking the whole circumstances together, I cannot say that the evidence now before the Court has failed to fix Lord Lorton with the knowledge of the loan, and the manner in which the money or rather the money's worth was advanced; and I therefore think that the case comes within the first of the two propositions which were stated. That the second of these propositions is undeniable in law, and is applicable to the facts of the case, appears equally clear. The whole ground of the doctrine is the pressure upon the heir, or the distress of the party dealing with his expectancies. While he continues under that pressure, the law (as Lord Thurlow said in Gwynne v. Heaton (a)), treats him as an infant. But the infancy is determined when the pressure is removed. The protection which Sir William Grant well describes in Peacock v. Evans (b), as approaching nearly to incapacity of contracting, must cease when the exigency of the case is at an end. When the expectant heir has himself thrown off the trammels which necessity had imposed on him, or rather had induced him to fetter himself withal, and has placed himself in an adverse attitude towards the other party of whom he had become really independent, he must no longer be treated differently from other persons; from the rule to which all are subject he cannot be exempt, the rule which forbids. a party (a) 1 Bro. C. C. 1. (b) 16 Ves. 512. |