Thomas Henry Mirehouse, and William Squire Mirehouse,-Plaintiffs in Error; Frances Henrietta Rennell, Widow and Administratrix of Thomas Rennell, Clerk, deceased,-Defendant in Error.

House of Lords

Original Printed Version (PDF)

Original Citation: (1833) 1 Cl & Fin 527

English Reports Citation: 6 E.R. 1015

Mews' Dig. v. 1241; S.C. 7 Bli. N.S. 241; 8 Bing. 490; 1 Moo. and Scott, 683; and in Court below, sub nom. Rennell v. Lincoln (Bishop of), 7 B. and C. 113; 9 D. and R. 810; 5 L.J. (O.S.) K.B. 320. Considered in Ford v. Harington, 1869, L.R. 5 C.P. 287; and Walsh v. Lincoln (Bishop of), 1875, L.R. 10 C.P. 532; and see Juttendromohun Tagore v. Ganendromohun Tagore, 1872, L.R. Ind. app. suppt. 68.

[495] APPEAL

from the Court of Chancery.

WILLIAM NICOL,-Appellant; Sir ROBEKi' WILLIAMS VAUGHAN. Bart, and

others,-Respondents.

[Mews' Dig. v. 510; vi. 811; vii. 264; S.C. 7 Bli. N.S. 395; 2 Dow and Cl. 420; 5 Bli. N.S. 505; and see 1 Cl. and F. 49; 6 Bli. N.S. 104. See notes to Nicol v. Vaughan, 1 Cl. and F. 49. See also Huguenin v. Baseley, 1800; 14 Ves. 273 ; 1 Wh. and T.L.C. 7th ed. 247, and notes thereto; and Rfiades v. De Beatuwoir, 6 Bli. N.S. 195.]

In a suit, for administration of assets of obligors in a common money bond, the Master, under an order of reference made by consent, enabling him to inquire into the consideration and all the circumstances relative to the bond, re¡ported that it was a voluntary bond, given as a bounty to the obligee. The representatives of the obligors, and the obligee, took exceptions to the report; ths former alleging that it was a bond of indemnity, the obligee claiming it partly for money advanced, and partly for services performed. The Court below refused leave to withdraw the obligee's exceptions, and directed issues to try whether the bond was given for money and services, or as a gift, or for indemnity. This House on appeal reversed that order, and remitted the case to the Court below to- decide these questions on the evidence before it. The Court below decided accordingly upon a new hearing, and declared the bond to be partly for counter-security, partly as gift for services. This House, upon appeal, reversed that decision also, and ordered the Master's report to be confirmed. The Court below subsequently, upon the hearing of counter-petitions, one presented by the representative of the obligee, praying pay¡ment of the bond and interest, the other by the representative of the obligors, praying for leave to institute a, new suit to impeach the bond, on the ground that a gift from a principal to an agent was invalid in equity, decreed for such suit, and granted an injunction against any proceedings on the bond in the mean time. This House, upon appeal, reversed that decree, holding that, as

1002

NICOL V. VAUGHAN [1833] I CLARK & FINNELLT.

the respondent omitted to take advantage of any of the opportunities of raising that objection to the bond in the preceding inquiries, it was not now competent for him to harass the other party by a new suit, in which no new evidence could be produced.

This is the third appeal to this House between the same parties, from several successive decrees of the Master of the Rolls, respecting the consideration of a [496] bond, bearing date the 15th day of July 1815, in which Lady Essex Ker ahd Lady Mary Ker became jointly and severally bound to Mr. George Nicol, of Pall Mall, bookseller, in the penal sum of 24,000 conditioned for securing the payment of 12,000, with lawful interest. The Appellant is the son and legal personal repre¡sentative of the obligee, who died in the early part of these proceedings. The Re¡spondent, Sir R. W. Vaughan, is the surviving trustee and executor of the will of Lady Essex Ker, who on the death of Lady Mary her sister, intestate, in 1818, waa left her heiress-atlaw and sole next of kin, and also, by obtaining letters of adminis^ tration of her estate and effects, became her legal personal representative, and died in 1819. Of the other Respondents, some are the coheirs at law of Lady Essex Ker, eome her legatees or their representatives, and all are parties to suits instituted in the Court of Chancery in England, for the purpose of establishing her will and the respective claims of the parties to the real and personal property left by the Ladies Ker. There were also suits instituted between some of the parties in the Courts in Scotland, and in one of them Mr. Nicol obtained a decree on his bond, and a sum of money sufficient to answer the same was deposited in the Royal Bank of Scotland. The proceedings in those suits, and the circumstances relating to the bond, are stated in the report of the first appeal (2 Dow and Clark, 420), together with the judgment of this House, by which so much of an order of the Master of the Rolls, as directed issues to be tried to ascertain the nature of the consideration of the said bond, wast reversed, with directions to remit the matter to his Honor to deal with it upon the evidence before him, instead of sending it to a jury (2 Dow. and Clark, 428, 429).

[497] In pursuance of those directions, the matter was again brought before the Master of the Rolls, and his Honor, by an order bearing date the 2d of December 1831, declared that the bond was intended, to' the extent of ,10,000, as a, counter-security to Mr. Nicol, in respect of his joining the ladies Ker, as a surety in a bond to Messrs. Coutts and Co., their bankers, for 10,000; and that to the extent of 2000 it was intended as a voluntary gift or bounty to Mr. Nicol.

That decision became the subject of another appeal to this House (Vide supra [1 Cl. and P.], p. 49), which was heard in July 1832, when their Lordships were pleased to adjudge, amongst other things, that so much of his Honor's order then appealed from, as declared the bond for 12,000 to have been intended, to the extent of 10,000, as a counter-security to Mr. Nicol for his joint engagement with the Ladies Ker to the Messrs. Coutts, be reversed; and that the Master's report of the date of the 21st March 1828, by which he had found that the bond was not a bond of indemnity, but a voluntary bond, given to Mr. Nicol as a bounty, be absolutely confirmed.*

* The Master, in that report, after setting forth the titles of the causes, and two successive orders of reference to him-by the latter of which he was to be at liberty to inquire into the consideration and all the circumstances relating to the bond, and the plaintiff, Sir R. W. Vaughan, was to be held at liberty to examine George Nicol upon interrogatories, and both of them were to be at liberty to examine any of the other parties in these causes, or witnesses, if necessary, relative to the said bond, and the said George Nicol was to be at liberty to exhibit interrogatories for his own ex¡amination,-proceeds to the following effect: " I have been attended by the respective solicitors for all parties, and the said George Nicol hath laid before me an answer and examination to interrogatories, allowed by me, exhibited by the said plaintiff, whereby he states that the exhibit B. (being the bond in question) was prepared immediately, or very shortly, before the day on which it bears date, by Messrs. Blagrave and Walter, solicitors, who were the solicitors of the exarninant, and that the examinant em¡ployed the said Messrs. Blagrave and Walter to prepare the same, and he is not aware that such solicitors had ever been employed by Lady Mary Ker and Lady Essex Ker,

1003 I CLARK & FINNELLY. NICOL V. VAUGHAN [1833]

[498] The Appellant, and the Respondent, Sir R. W. Vaughan, subsequently presented counter-petitions to the Master of the Rolls, respectively entitled in the [499] causes pending in the Court of Chancery between the Respondents. The Appellant's petition prayed, that it might be referred to the Master to compute what was [500] due for interest on the bond, and that the same, together with the prin¡cipal sum of 12,000 secured by it, might be paid to' him by the said Respondent, or that [501] the Appellant might be declared entitled to receive the same out of monies set apart by order of the Court of Session in Scotland, in the suit instituted there, to [502] cover the amount due for principal, interest and costs of the said

and he believes that they never had been employed by the said ladies, or either of them. And the ecsaminant states, that he had for a, long period, commencing from the death of John, late Duke of Roxburgh, the brother of the said ladies, in the year 1804, up to the date of the said bond, incurred much trouble and loss of time and considerable expense in the service and affairs of the said ladies, at their request and with their approbation, and had advanced and paid out of his own money various large sums of money from time to time to them, or for their use, and with their know¡ledge, which had never been repaid; and that no account was rendered by him to the said ladies of such expenses and sums; and with regard to some of his advances in money, memorandums or vouchers were taken by him at the time, but he kept no-regular accounts with the said ladies at any time, and at the period of the execution of the said bond the whole of the memorandums and vouchers which he held for advances of money to the said ladies, were cancelled and destroyed in their presence, and no memorandum or voucher of any payment has been preserved by him; and the said examinant states that the said ladies intended by the said bond to remunerate the examinant for his said services, expenses, payments and advances, and to* satisfy the debt of gratitude which they conceived them to' have'incurred to the examinant, as well as the desire which they entertained of manifesting their friendship towards him. And the examinant states, that the consideration given by him for the said bond, consisted of such payments and advances of money and services, so far as such payments and advances of money and services amount in law to a consideration. And he believes that the said bond was given to him for such reasons, and no other; and that the same was, so* far as appears from what he has herein deposed, given to the examinant as a voluntary bond, and so far as appears from what he has herein deposed, given to him in satisfaction of such existing debt as aforesaid. And the examinant states, that previous to the preparation of the said bond, the same was frequently mentioned in conversation between the examinant and the Ladies Mary and Essex Ker, and that both the said ladies repeatedly desired and requested the examinant to get the said bond prepared, and that Lady Mary Ker, in the presence of Lady Essex Ker and of the examinant, proposed and fixed the sum, viz. 12,000, for which the said bonds should be given, and that such sum was approved by Lady Essex Ker. And the eixaminaiit states, that the obligations!, both' pecuniary and otherwise, under which the said ladies lay to the examinant, and their friendship, and the friendship of the said late Duke of Roxburgh for the examinant, were frequently mentioned in several conversations as the motives and reasons for their giving the said bond. And that such conversations did not, to- the recollection of the examinant, pass in the presence of any person other than the examinant and the said two ladies, and he says he cannot more fully state the particulars of such conversations or when the same passed, and that, in fact, at the date of the said bond, money to a considerable amount, though far short of 12,000, was due from the said ladies to the examinant; for from the death of the late Duke of Roxburgh to the time of the execution of the said bond, when the said ladies were in want of money, they applied personally, or sent to the examinant for the same, and he has from time to time advanced what was needed by them, and such advances were sometimes made to the said ladies, or one of them, personally, and sometimes to other persons whose names the examinant cannot remember, on their behalf; and he states that he does not remember to which of the said ladies any of such advances was actually made, but the examinant always considered that his transactions with them regarded them both equally. And the examinant states, that on several occa¡sions he did receive from the said ladies, or one of them, memorandums and

1004 NICOL V. VAUGHAN [1833] I CLARK & FINNELLY.

bond. The Respondent's petition prayed, that he might be authorized to institute a suit in the [503] Court of Chancery, for the purpose of impeaching the validity of the bond, so in effect declared by this House to be a gift without consideration ; (upon the ground, [504] that if a gift, its validity was questionable, on the principles of Courts of Equity, applicable to parties standing in the relation of principal and agent); and that the sum set apart by the Court of Session be secured to abide the event of the proposed suit; or, as an alternative, that the Appellant might be restrained by a perpetual injunction from taking out execution on the bond, or putting the same in suit.

vouchers in writing for payments and advances made to them; and that from time to time he received monies from them, or on their account, which were partly re¡tained or applied by him towards repayment of what had so become due to him, but unquestionably not so as ever to extinguish the debt due to the examinant, although the account between them, if attempted to be taken, must have been involved in great difficulty and obscurity. And the examinant says he is wholly unable to state what was the sum due to him from the said ladies at the date of the bond, or state further than he has herein stated the particulars of such debt, or when advanced, or to whom or on what account, or in whose presence each such sum had been paid; and he says, that for payments made to other persons, he frequently took receipts, not however, that he is aware, expressing that the same payments had been made by him out of his own money. And the said examinant states, that he has in his possession various receipts for money paid on account of the said ladies, but he is unable to distinguish which of such receipts are for sums in which the said ladies stood indebted to him at the date of the said bond. And he had frequently, as he believes, though he does not remember the particulars, made applications to the said ladies for money, in consequence of the advances which he had made for them, but, except as by the rxamiuation and by letters appears, he is wholly incapable to' set forth what claim or demand, in respect of such debt as aforesaid, he had ever made against the said ladies, or either of them; and he says, that he from time to' time stated to the said ladies that he had demands upon them in respect of loans and advances of money, but not in respect of his services to them. And he states that he had performed such services from motives of friendship and regard, and never in any manner made any charge for such services and never expressed to either of them any °xpectatii H that they were to pay him for such services. And the examinant states that the said ladies did frequently previous to the preparation of the bond, speak to the examinant, (but not in the presence of any other person that he remembers), on the subject of there being money, on account of the advances and payments aforesaid, due from them to him, and they did express their sense of the obligation they were under to the examinant, as well for the said advances oi money, as for the services he iiud reii-darcd them, and expressed a desire to remunerate him. And the eixammant rtates that he was in the habit of acting as agent for the said ladies, so far as transacting various matters of business for them from friendship and at their request, and gratuitously, and not as manager for them; and he saith that he was in the habit of receiving as well as paying monies on their account, and that all the sums bor¡rowed for their use for many years passed through his hands; and he states that the reason why no account was made out or delivered or required, was, as he believes, that the said ladies were satisfied they were indebted to the examinant, but by no means intended to limit the amount of their bond by the amount of such debt, the existence of which constituted but one of the reasons for giving the said bond; and he is wholly unable to set forth how much was considered as a gift and how much as the satisfaction of a debt, because the proportions were not ascertained; and the examinant says that the said bond was at first proposed by the said ladies, or one of them, to be given for the sum of 10,000, and that the examinant offered no objection thereto1; and that Lady Mary Ker, not on the basis of any calculation, but of her free will, insisted that it should be for 12,000, which was consented to by Lady Essex Ker. And the examinant says that no person except the examinant was consulted by the said ladies, to the best of his belief, respecting the said bond, previously to the execution thereof ; and the reason was, that they had no solicitor whom they consulted about any of their affairs, except that they sometimes consulted Daniel Moore, esq.

1005 I CLARK & FINNELLY. NICOL V. VAUGHAN [1833]

Both these petitions were brought on for hearing before the Master of the Rolls (see Earl of Winchelsea v. Garretty, 1 Mylne and jxeen, 253); and his Honor, by an order made on the 14th of February 1833, directed that the Respondent, Sir R. W. Vaughan, should be at liberty to institute a suit in the Court of Chancery for the pur¡pose of questioning the validity of the bond, taking it to be a bond intended as a bounty or gift to1 Mr. G. Nicol, in pursuance oi the judgment of the House of Lords; and that the Appellant, as the administrator of the obligee, should be restrained by injunction from receiving, out of the sum set apart by the Court of Session, the amount claimed to' be due on the said bond.

Against this order the Appellant now appealed to this House.

about some matters relating to their brother's will, and being of very retired habits, they seldom saw any person out of their own family except the examinaiit. And the examiuant says that he never advised them to consult their solicitors (not under¡standing them to have any) or any other person with respect to the said bond, and that the propriety of taking any such steps never occurred to his mind, and if it had he should have had no objection whatever so to do. And the examinant says, that sometime before the bond was signed, the said ladies, or one of them, in urging him to accept said bond, stated it would be paid at some time; and he says that there was no arrangement or agreement, nor understanding between the said ladies, or either of them, and the examinant, that he should not call for the principal upon the said bond, or the interest thereof, during their lives; but the examinant spontaneously mentioned to them, on the occasion of their executing the bond, that he should not ask them to pay any interest during their lives; and the examinant says, that inde¡pendently of the said promise, the nature of the friendship between him and the said ladies, precluded, as he believes, the thought of their being personally sued or arrested by the examinant, or being called upon for the payment of the principal and interest of the said bond, before the means of such payment should come to them. And the examinant says, that he does not recollect that he ever explained to them, or either of them, the effect of the said bond, or that they might be sued and arrested upon it; but that unquestionably they understoou the nature and effect of it, and they needed no explanation thereof; and he says that the said ladies, or either of them, to the best of the eixaminant's remembrance and belief, never said or expressed any¡thing relative to the said bond after the same had been given, except that they did both, as he recollects, express themselves happy and relieved of having, so far as lay in their power, rewarded his long and faithful services, or to that effect. And the examinant says, that the only reason, as he believes, of the same bond being dated and executed on the same day with the bond to Mr. Coutts for 10,000 in the said in¡terrogatories mentioned, was that the said ladies did not easily bring themselves to do any matters of business, and therefore it was deemed expedient to have both! bonds settled at the same time. And the examinant says, that he was present at the execution of the bond, in which he is the obligee, and that the same was executed on the day of the date thereof, at the house of Lady Essex Ker, and that the parties present were the said Ladies Mary and Essex Ker, and the examinant, and William Butler, the attesting witness to the execution of the said bond, who was at that time in the service of Lady Essex Ker, and is since dead; and the examinant says he be¡lieves that there were other persons residing with the said ladies in the capacity of servants, at the time when the said bond was executed ; and he believes that no person was residing with the said ladies of a higher station than that of a menial servant, or in whom they placed any confidence, or were in the habit of imparting their affairs to. And the examinant says that it was not the object, nor a part of the object, of the said ladies in giving him the bond, to indemnify him against the payment of the Vvond to the said Mr. Coutts, in which the examinant had joined with them as a surety, or against any sums which the examinant might thereafter advance for their use. And the examinant says, that he had no indemnity against his liability upon the said bond; and he says that being aware that the said ladies were entitled to a large property, although not of considerable immediate income, he did not conceive he stood in need of any such indemnity. And he says that out of the sum of 10,000 which was secured by the said bond to Mr. Coutts, the prior bonds, in which the examinant had been surety for the said ladies, were discharged, and that the

1006 NICOL V. VAUGHAN [1833] I CLARK & FINNELLY.

[505] Sir Edward Sugden and Mr. Tinney, for the Appellant: This is the second time we have to complain that the Master of the Rolls, did nothing in this matter but direct, new litigation. There is not an instance known of three successive appeals to this House on the same point. Your Lordships have already reversed two former orders of his Honor. The tendency, if not the direct effect of this third order now appealed from, is to impugn the orders: of reversal, and is a. departure from all the former proceedings relating to the bond. One ground alleged for instituting a neiw suit, after the adjudication of your Lordships, which ought to be final and conclusive, is, that until the bond was by your Lordships' judgment established not to be a bond of indemnity, but a voluntary bond, the Respondents had not an opportunity of discussing its validity as a gift. But they had the opportunity and power to enter into a, full examination of that question before the Master. They did not choose to do so; if they did, we had a full defence., on that point.

Under the order of the Court of Chancery of the 28th of April 1827, the Master was at liberty to inquire into- the consideration of the bond and into all the circum¡stances relating to' it; yet by the report made in pursuance of that order, and bearing date the 21st March 1828, the Master did not find, nor did any of the parties then suggest, that the validity of the bond was questionable on the ground which is now for the first time alleged. The direct and express object of that order of further reference was to enable the Court to decide the question in dispute respecting the consideration of the bond, without the expense and delay of a new suit in equity. Under the first order of reference, Mr. Nicol, allowing, at the request of the Respon¡dents, a stop to be put to his proceedings on [506] the bond in the Scotch Courts, brought his charge in respect of it before the Master in Chancery. The solicitors for the Respondents, then raised the question of the consideration of the bond, alleging that it was a bond of indemnity to cover Mr. Nicol's engagement to Messrs. Coutts and Co. on behalf of the obligors; that was the only objection then made by them. The Master not feeling himself authorized to inquire into' the consideration, the second order of refeience was moved for by the Respondent, and Mr. Nicol con-

examinant was not, to the best of his recollection and belief, at that time liable for the said ladies on any other accounts, and accordingly he says that the amount of his liability for the said ladies at the time when the bond for 12,000 was given, was the sum of 10,000 secured by Mr. Coutts' said bond of even date therewith. And the said examinant says that he kept the said bond for 12,000 in his own custody from the time when the same was placed in his hands till on or about the 20th of December 1819, when he lodged it with the house of Coutts and Co. as a security for the sum of 3000 then advanced and lent to him by Mr. Coutts; that beyond all doubt the said ladies understood by the effect of the said arrangement they were to pay both sums, and he knows that such was their understanding, because the bond for 10,000 was given by them for money advanced for them, and the examinant joining therein was considered as a matter of form, and for Mr. Coutts' satisfaction; but the bond for 12,000 was given by them upon their own proposal to secure to the examinant the sum of 12,000 and interest, for the examinant's own use and benefit as aforesaid."

After setting forth the further examination of Mr. Nicol, and several letters from him to the Ladies Ker, put in by the respondent, to show Mr. Nicol was not in a, condition to advance any money of his own at any time, and in two of which, of dates prior to the date of the bond, Mr. Nicol writes, that " he dare not look near Mr. Coutts," and that, " he had for several months studiously avoided him, for not having followed his advice in taking a counter-security," the Master concludes thus: " And I find that the said Lady Essex Ker, by her last will and testament, bearing date the last day of September 1819, gave and bequeathed to' the said George Nicol the sum of 2000 in the following words: ' To my friend George Nicol. for his ser¡vices, I leave 2000.' And upon consideration of the said examination, the said letters, and the several circumstances hereinbefore stated, I am of opinion that the) said bond under the hand and seals of the Right hon. Lady Essex and Lady Mary Ker, was not a bond of indemnity, but was a voluntary bond given to' the said George Nicol as a bounty by the said Ladies Essex and Mary Ker, without any consideration having been paid or given by the said George Nicol for the same."

1007 I CLARK & FINNELLY. NICOL V. VAUGHAN [1833]

seuted, and the order was accordingly made, and the Master was thereby directed " to inquire into the consideration and all the circumstances relative to the bond." Can it be now therefore alleged that the Respondent had not had an opportunity of questioning the bond as a gift? The order of his Honor, directing issues to a jury, was reversed by your Lordships' House upon grounds which are equally applicable to1 the question before you now, namely, because it was a departure from the consent order of reference, and because there was no person in existence who could give additional evidence respecting the bond. This last order of his Honor is open to the same objections, and cannot be right unless your Lordships were wrong in reversing the first order.

Mr. Nicol did not, it is true, produce any settlement of accounts when he accepted the bond. The Ladies Ker most probably might not have wished it. They would not look into- such accounts: they had too much reliance on Mr. Nicol to examine accounts with him. In his examination Mr. Nicol was drawn aside from the point now raised, by the Eespondent's insisting that the bond was, for indemnity, and making no' other objection to. it. There cannot be any question now that the bond was not for indemnity, for the Master by his, report found that it [507] was not a bond for indemnity but a voluntary bond; and your Lordships, by the judgment of this House in the second appeal, ordered that report to' be absolutely confirmed. The objection now made to the bond is, that taking it to, be voluntary it is impeachable in equity, on account of the relation in which Mr. G. Nicol stood to the Ladies Ker. But the Respondent having all along in the whole course of the various proceedings relied upon the other single objection, ought not now to, be allowed to shift his course. We confidently submit that where, as in the present case, a party relies upon two distinct defences, and all the facts necessary to raise and to' enable the Court to determine both grounds of defence are before it, such party cannot be admitted first to abandon one of his, defences, and carry his opponent through a long and expensive course of litigation confined to the other, and when his case fails him upon the ground he has. selected, to re-assume the defence he had abandoned, and commence in effect an entirely new course of litigation.

The Respondents, alleging that the Master's report, does not exactly accord with Mr. Nicol's account of the consideration for the bond, say, your Lordships did not give credit, to1 Mr. Nicol's examination, because your Lordships confirmed the Master's report. The inference they dra,w does not necessarily follow. There is no, doubt, of advances of money being made by Mr. Nicol on behalf of the Ladies Ker. Mr. Nicol swore the bond was given for money advanced, and for services, performed by him as a friend. The Master said that they were not such services as make a, consideration for the bond. But may they not, entitle him to a gift? Mr. Nicol, they say, could not accept a gift. What prevented Mr. Nicol from taking the bond as a, gift? [508] We are prepared tot go into- that point, if your Lordships think it, should be entered upon. The observations of Lord Eldon in the case of Harris v. Tremenheere (15 Ves. 34. 39), clearly establish the validity of this bond. His Lordship in that case said, ò' The consideration as to the other voluntary leases stands upon different principles, as they are pure gift," etc. " I cannot find any decision authorizing me to1 say that the Defendant should not have taken these leases as of the pure gift of his employer." There could not be a stronger case than that, in which the. person who took the leases was a, steward, bound to1 do, everything for his employer. There is nothing in, the cases of Huguenin v. Baseley (14 Ves. 273), or Griffiths v. Robins (3 Madd. 191), to affect the validity of this bond.-[The Lord Chancellor observed, that the question now was, not whether the bond was'valid or not, but whether a new suit, should be instituted to, discuss that question.]-Supposing even that, the Respondents had a, good case against the validity of the bond, which we deny, still we submit to, your Lordshios that the Master of the Rolls was wrong in ordering a new suit, thereby taking this cas^ out of the course of proceeding already adopted as the fittest for its adjudication. It would, indeed, answer the purpose of the Respondents to have such suit, for they would then exclude the evidence o f Mr. George Nicol; for he is dead, and his evidence in the existing proceedings would not be read in the new suit. If your Lordships think further inquiry necessary, for trying this point, you may direct such inquiry to be made upon the evidence now in the suit. But as no, new evidence can be brought, there is. no, reason to, put par-[509]-ties to the costs of another suit, in which there cannot be a better investigation than has already been had.

1008 NICOL V. VAUGHAN [1833] I CLAEK & FINNELLY.

Mr. Pembertori and Mr. Hope, for the Respondents :-The first question for your Lordships' consideration is, whether you will set aside the order of the Court below: The second is, whether the parties ought to' be precluded from further investigation into the transactions relating to the bond. It is mistaking the principles of Courts of Equity, to suppose that the restriction against gifts of this nature is confined to attorneys and agents; your Lordships will find that, not only persons in the relation of attorney, oi agent, of guardian, trustee, and steward, but all persons in a, situa-tion that gives them advantage or influence over a party, cannot take a gift from him, while such relation between them continues; Proof v. Hindes (Fo rres. Ca. Temp. Talbot, 111), Welles v. Middleton (1 Cox, 112-125). Lord Thurlow, in his very elaborate judgment in the latter case, said, " It has been argued as if it was necessary to establish incompetency in this man, that rendered it impossible for him to ,convey; but this is. not so. There are many instances where this Court is obliged to act for the preservation of mankind. The presumptions arising must be refuted by the strongest evidence. What is the case of expectant children anticipat¡ing gifts by sales? They go on general principles. So. the cases of trustees, and guardians, and so of attorneys." That the principle ap¡plied to the case of an attorney, is applicable to any other party, placed in a confidential relation giving him influence over the person who makes the gift, is also, clearly laid down in the cases of Gibson v. Jeyes (6 Yes. 266), and Hatch v. Hatch (9 Ves. 292). In the former, Lord Eldon said, (p. 278), [510] " The rule is, that he who bargains in matter of advantage with a, person placing confidence in him, is bound to show that a reasonable use has been made of that confidence "-a rule applying to trustees, attorneys, or any one else. In Hatch v. Hatch he extended the rule to guardian and trustee, saying (p. 29 6), " This case proves the wisdom of the Court in saying it is almost impossible, in the course of the connection of guardian and ward, attorney and client, trustee and cestui que trust, that a transaction shall stand purporting to be bounty for the execution of ante¡cedent duty."-" And recollecting that, in discussing whether it is an act of rational consideration, an act. of pure volition, uninfluenced, inquiry is so easily baffled in a Court of Justice, that instead of the spontaneous act of a friend uninfluenced, it may be the impulse of a mind misled by undue kindness., or forced by oppression."- " And, therefore, if the Court, will not watch these transactions, with a jealousy almost invincible, in a. great, majority of cases it will lend its assistance to fraud; where the connection is not dissolved, the amount not settled," etc. The principles thus laid down in those- cases were acted upon in the subsequent cases, Huguenin v. Baseley (14 Ves. 273), Wood v. Downes (18 Ves. 120), Montesquieu v. Sandys (Ib. 302), and Griffiths v. Robins (3 Madd. 191), and is not departed from in the case of Harris v. Tremenheere (15 Ves. 34), cited for the Appellant, or in the later cases of Lord Selsey v. Rhoades (2 Sim. and S. 41), or Pratt v. Barker (1 Sim. 1 ; and 4 Russ, 507). The rule in all the cases is, that in respect to contract or bargain, the relation must be dissolved, and the parties must place [511] themselves as it were at arms' length, in the position of strangers; and in respect to gift, the person conferring it must know what he is doing^and the effects and consequences of it. It should be made to appear to your Lordships, that the obligors, when they executed this bond to. Mr. Nicol, understood the obligation in all its bearings; that it was for services, or for money, or as a, gift, and that they could be arrested on it; that, in short, they knew all the consequences of what they were doing. Mr. Nicol himself, in his examination, says, that he did not explain to them that they might be sued or arrested on the bond;'that the nature of the friendship between him and the ladies precluded the thought of the ladies being personally sued or arrested by him. He say they knew the nature o-f it, and needed no explanation. He did not tell them he had accounts against them, but he swears he had memorandums and vouchers, for large amounts advanced for them; but that all these were destroyed at the time of executing the bond. He swears, in effect, that he had a legal demand on them, and legal evidence toi support it; but that he destroyed the evidence. By his own account, he stood in the relation of agent and guardian to the ladies, and took from them a, bond for 12,000 for his own benefit, although they had not a. pound but what they borrowed for their immediate necessities; and your Lordships, are called upon to affirm this bond as. a, gift to him. If it could be: ascertained that Mr. Nicol knew what he was swearing to, when his examination was taken, he being then

1009

I CLARK & FINNELLY. NICOL V. VAUGHAN [1833]

on his death-bed, it would not be difficult to say that this was a case of actual fraud. He was not examined sentence by sentence, but a written statement being presented to him in his last moments, he put his name to. it. The bond was prepared by Messrs. Blagrave and Wal-[512]-ter, his own solicitors, who. were strangers to the obligors, and was accepted without calling on the solicitor for the ladies, who then had a solicitor, Mr. Moore, employed by them upon most important business. Was it not the duty of Mr. Nicol to call on that gentleman, or on the gentleman who drew the bond of even date for Messrs. Coutts? He swears he did not explain the effect of the bond, except that it was for 12,000 with interest, as they directed, and the friend¡ship between them precluded a thought of their being sued on it. But though Mr. Nicol would not take proceedings against them, his assignees might if he became bankrupt or insolvent. Did he explain that to them? If Mr. Nicol did not explain all these possible effects of the bond, he did not do what he was bound to do before he accepted it; and your Lordships cannot declare this to be a valid bond, unless you depart from all the former decisions of the Courts of Equity, and of this House, upon like instruments.

The letters written from time to time by Mr. Nicol to the obligors, during the two years preceding the date of the bond, and put in evidence in the case, will show how unlikely it was that money advanced formed any part of the consideration, or that the obligors were in a condition to make such a gift. In one he says, " If Mr. Parkes will call on me with his bill of 279, I will either get Coutts to accept it, or accept it myself; or if in distress, I will raise the money for him; for though as poor as a rat myself, my credit is without end." In another letter, February 1813, he writes, " I had a long interview with my old friend ' Tommy ' (Coutts), and was graciously received, considering that I was a borrower; and as soon as our joint bond is made for 2000, I will bring it to you for execution. I shall then get up [513] and cancel our notes for 1100, the money you have overdrawn." In another, dated in March 1814, he writes to Lady Essex Ker, " As my friend Mr. Coutts is upwards of fourscore, and I can have no dependence on his junior partners, who would cer¡tainly lay hold of me; they have already sent me notice that they are so much in advance, besides what I have given them security for, that they can answer no- more of your Ladyship's drafts." In another, dated March 13th of the same year, he writes, " Nay, I went further, and became security, either by signing my name, or pledging my honour for a great deal more than I am worth in the world." March 16th 1814, he writes, " I send your Ladyship the note inclosed for 500, which I mentioned in my letter, for your signature above mine; and this I believe is as far as the house will go, for they know very well that, I do not pretend to be a man of property, and to draw down upon themselves Scotch law suits is what they will never agree to." In another, dated August 22d 1814, " I have had Captain Garretty with me, with your Ladyship's acceptance for 380, to get discounted. I have been with a friend for that purpose, but unfortunately he is not in cash at present, and I dare not look near Mr. Coutts, having so shamefully set his advice at nought. But I will, if I can, endeavour to get it done with some other friend." In a letter to Lady Mary Ker, dated the 3d of January 1815, he says, " I would to' God you would inspire Lady E. with the thousandth part of your Ladyship's discretion and delicacy, in money matters. I confess I was shocked at the indelicacy of leaving me in the hands of the Philistines, whom I had made my mortal foes by my zeal and exertions for her interest, [514] and became bound for her in sums far beyond my power of paying, when simply signing her name would have obviated all."

Here it appears a little extraordinary, that a lady, who refuses in January to relieve him from a security by merely putting her hand to paper, gives him a bond for 12,000 as bounty in the same month. In a letter to Lady Essex Ker, on the 28th January 1815, Mr. Nicol writes, " I have not seen Mr. Coutts for several months, having studiously avoided him, because I had not followed his advice, so friendly to all parties, in taking a, counter-security; but I must now say, that I had so near a prospect of your ladyship's getting possession, that I thought it became un¡necessary." In another, dated April 19th 1816, he says, " as I know your ladyship's demands are peremptory, I have got 1000 from a friend for a few days, and passed my own word, which is always my bond, to return it before the week is out; vour ladyship will be so good as send a line by the bearer that you have received

1010 NICOL V. VAUGHAN [1833] I CLARK & FINNELLY.

the money. I am quite mortified at this business, for having seen most of the creditors, I had convinced them that it was impossible your ladyship could pay the principal of their debts till you could either sell or raise money upon mortgage, but that their interest should be regularly paid them; this seemed to satisfy them, and how they have changed their minds I cannot tell; but I am apprehensive that some of the other creditors, finding that compulsion has been successful, will pursue the same course, in which case I know not what is to be done." In another letter to her, dated November 13th 1816, "I have had a very threatening visit from Mr. Dobie's partner, with a demand for 1000; I have got him put off a little with the old story, which I confess [515] my conscience smites me for so often asserting, viz. that your ladyship's debts are very safe, and will eventually be paid. I am so sensible of the contrary, that I look to' end my life in a prison the moment anything happens to your ladyship or Mr. Coutts."

How can it be said on the part of the Appellant, that this bond was only com¡mensurate with the liberality of those ladies, when it thus appears that at the very time of its execution, and for a year before and a year after, they were obliged to borrow money, and were so much in debt that it was doubtful whether those debts could ever be paid? The question now is, whether there is not, upon these facts in evidence, such a case made out a,s to require a, further investigation of the bond, and of the circumstances under which it was given.

But it is contended for the Appellant, that we are now too late; that we are pre¡cluded from further investigation by our own conduct, and that we should have argued the matter before the Master, under the order of reference. Your Lordships will be of opinion, on looking to the course of the proceedings, that we have taken steps as soon as we could to make the inquiry which we ask. Mr. Nicol said before the Master, that the bond was given him for monies advanced and for services performed, not for indemnity nor as a voluntary bond. But the Master found that it was a voluntary bond.-[The Lord Chancellor: How can it be said, that the issue before the Master was indemnity, or not indemnity, when the order of reference was in such very general terms, " to inquire into the consideration and all the cir¡cumstances?"]-The issue was not confined to indemnity or not indemnity, or to voluntary or not voluntary: both parties agreed in repudiating the bond as voluntary, and both excepted to the report, [516] finding it to be voluntary.-[The Lord Chancellor: Could you not have raised your present defence when the Master reported, that the bond was voluntary?]-The Master had no power to inquire further than he was directed ; he was not directed to find whether the bond was valid or not valid; all he was directed to do was to1 inquire into the circumstances under which it was executed. He only found a fact, but was. not authorized to report what the law was on that fact. Two questions arose on the report: the first was, whether the Master was right in the fact found, and the Master of the Rolls not being satisfied that he was right, directed a further inquiry by issues. Your Lordships differed in opinion from the Master of the Rolls, and you affirmed the Master's report, finding that it was a voluntary bond. That was the first time that we could apply ourselves to the second question raised on the Master's report, which was a question of law; being, whether the bond given as a voluntary bond, under the circumstances reported, was legal. That question could not be brought before the Court below on the Master's report, because the Master could only report on the facts referred to him. Now that your Lordships have affirmed the finding of the Master, we raise the question of la,w on the facts so found and affirmed, and we impeach the bond as invalid. The Appellant, instead of putting in an answer to our bill impeaching his bond, comes here and asks your Lordships to stop all further inquiry, a course which he would not pursue if he had no further evidence or documents to* explain against himself the circumstances under which the bond was given. We do not believe that he has not such evidence. We ask for further investigation, because at present the bond appears to have been made under circumstances which would induce a Court of Equity to [517] set it aside, upon the principles; which are universally applied to gifts to persons standing in a relation of trust or confidence towards the donor; and because there is, at all events, so much suspicion as to the circumstances under which the gift was made, as to make it fit that further investiga¡tion should be had.

1011 I CLARK & FINNELLY. NICOL V. VAUGHAN [1833]

Sir Edward Sugdeu, in reply: It is part of my argument against a new bill, that the Appellant was dra.wn off and precluded from argument on the bond as a voluntary bond. The Respondents allowed our exception to the report to be with¡drawn, and in that they acted with bad faith; for we could then show that it was a bond for valuable consideration. There is not a tittle of evidence to impeach the bond on that ground. It is said, this is an attack on the doctrines of the Courts of Equity, because we do not agree in all the doctrines of the Master of the Rolls. With great respect for that learned Judge, I do not agree in a,ll his doctrines, and I have excepted to many of them. The Respondent's proposition is this: that for services of the most essential kind, rendered for a period of 20 years, if the person to whom such services are rendered, be he or she ever so able and willing, make a gift to the person rendering those services, such gift cannot stand. Has not Lord Eldon said . over and over again, in the cases, already cited, that if it is pure gift, no Court can interfere? But the Respondent says, it was not a, pure gift, it was not voluntary. He precluded himself from taking that objection, by relying on a totally different objection. We say, this is a voluntary bond. Is not Lady Essex Ker to be supposed capable of a. free gift for such services as Mr. Nicol performed, when we see her by her will bestowing her fortune upon hospitals and churches; when she is, in fact, looking about for objects of her bounty? It [518] was urged as argument on an inference of fraud, that this bond was never enforced during the lifetime of the obligors. That was agreed on; Mr. Nicol swears, that he told them, he would not enforce it during their lives, not even for the interest. Another argument to infer fraud is, that the bond was never made known to Mr. Coutts. That was the best proof that the Master of the Rolls was wrong in declarins: it to be for indemnity. If the bond was given to. indemnify Mr. Nicol for his engagement for the ladies to Mr. Coutts, is it. to be believed that he would not have knowledge of it? Another objection was made, that Mr. Nicol did not tell the obligors, that if he should become bankrupt his assignees might sue and arrest them. Now, could they be ignorant that they were liable to all the consequences of giving the bond to Mr. Coutts? They knew that they were liable to the like consequences for both bonds. With respect to the expression " poor as a rat," in one of Mr. Nicol's letters, that is a common expression, not implying poverty, but often used by persons rich in money as well as credit; and we find that Mr. Nicol's assets a.re sworn to. be 36,000. The inference, that Lady Essex Ker would not make a gift of this bond, beca.use she had by some neglect omitted to. put her name to some paper, and Mr. Nicol complained of being put. in jeopardy by such neglect, is the most far-fetched argument that was ever heard. I contend, that, they might have raised the question, of validity under the order of reference to the Master, and the Master would not be prevented from drawing the conclusion of larw on the facts. They had another opportunity of raising the same question before the Master of the Rolls, when this House con¡firmed the. Master's report finding this bond to be bounty. The Appellant petitioned the Rolls to confirm the [519] report; that was the last time that they might have raised this question. Either then, or when the inquiry was before the Master, when they had two defences to the bond, they ought to. have brought them forward. They are not now entitled either to1 a supplemental bill or bill of review, because they cannot swear that they did not in the former stages know of this defence. Then what right have they to ask for leave to. institute a new and distinct suit, after so many years of litigation, to harass the Appellant, who. may not. be. able to contend against funds which are supplied to the other side out of the estate of the obligors?

The Lord Chancellor: I shall move your Lordships to postpone your judgment until I shall have the assistance of my noble and learned friend Lord Lyndhurst, who was with me on hearing the first appeal in this case. I will lay before him my notes of the argument.

The Lord Chancellor (August 27): My Lords, this ease, which was an appeal on various grounds, now comes on, I hope and trust, indeed I think I may confidently state, for the last time, to receive decision from your Lordships. In October 1831, your Lo.rdships reversed an order of his Honor the Master of the Rolls, directing three issues to be tried at law, on the ground that the evidence was all before the Court below, and that the Court below could then dispose of the question, which was1, whether or not the bond was an indemnity, or counter-security, or gift. The Master of the Rolls then considered that question, and came to the conclusion, that as to 10,000

1012 NICOL V. VAUGHAN [18331 I CLARK & FINNELLY. L J

the bond was a, counter-security, and as to 2000 it was a voluntary gift in re¡muneration of services. In July 1832, your [520] Lordships reversed the declaration as to the counter-security, and confirmed the Master's report absolutely, which had found that the whole bond was voluntary, and a gift and bounty from the obligors to the obligee. Upon this both_parties petitioned the Court below; the Respondents, for leave to institute a. suit to1 impeach the validity of the bond considered as volun¡tary and gift, and for an injunction to restrain the Appellant from receiving any portion o-f the money set apart in Scotland for the payment of it; the Appellant, for computation of interest due upon it, and for leave to have that and the principal paid out of the Scotch fund. On both petitions, the order now appealed from was made. It gave the Respondents the leave they asked to- impeach the bond in a new suit, taking it to be bounty or gift, and it ordered the Appellant's petition to stand over in the mean time, restraining him from receiving the money. That the Court below had the power to. make this order there cannot be any doubt; it was in the discretion of the Court, but a discretion to be; exercised soundly; and the question is, whether or not, in the circumstances of the case, that discretion ougn. 10 to have been exercised as to grant the leave; in other words, whether your Lordships, having before you the case which was before the Co'urt below, sitting in this Court, would have given the leave which the Court below did give by the order; and I am of opinion that your Lordships would not and ought not to have given that leave.

The case set up against the bond, and set. up for the first time, is that, from the relation'subsisting between the parties, a. Court of Equity would not suffer the obligee to take advantage of the obligors' bounty. Now this1 ca.se might have been made in all the former stages of the long litigation, to- the end of which it [521] may be hoped we are now approaching. The objection now first relied on was one which was open to the Respondents from the beginning; at all events, from the Master's report and it would have decided the cause in their favour, whether the rest of the case had been with them or against them. They then, and long afterwards, relied upon the wholly different ground, of which the decision of this House has deprived them, namely, that the bond was a counter-security. But if the bond was good for nothing a.s a gift, they ought to have urged that alternative, and said, " whether it be indemnity or bounty makes no- difference; for if indemnity, cadet questio, and if bounty, it cannot be supported in a Court of Equitv, regard being had to. the circumstances, and the relation in which the parties stood." But, my Lords, a party cannot be allowed to bring forward his case piecemeal, and after exhausting his adversaries with litigation on one ground, to drag them through a second course of proceeding upon another ground, of which he might at first have availed himself. Then, was there anything in the proceeding, whether in the conduct of the Appellant or in the orders of the Court, which misled the Respondents, and prevented them from taking earlier the objection on which they now rest their case? I am very clearly, of opinion that the more the whole proceedings are attended to., the more plainly will it appear that the Respon¡dents have no such matter to- urge. If the contention had always been, on the one side, that the bond was indemnity, and on the other, that it was for a, valuable con¡sideration, and if nothing had been done, either by the parties or the Court, to direct one another's attention to the bond considered as voluntary and bounty, there might be some ground for the application of the Respondents to be now let in with [522] a new case, referable to the bond as voluntary and bounty. But that is not the fact; it is the reverse of the fact. First, the Master's report in 1828, while it negatives, the bond being indemnity, distinctly finds that it was voluntary and given as a bounty. Secondly, the Respondents excepted to that finding of the Master, upon the ground that the bond was not voluntary, but indemnity; and the exception of course pro¡ceeded upon the assumption that it was not only not voluntary, but also, not given for value. Thirdly, the Appellant took an exception to the finding of volun¡tary, maintaining, it is true, that it was for value, but he desired leave to withdraw that exception; and though this was refused by the Master of the Rolls, declaring that the Appellant was bound by the terms of his exception to support the bond as partly for services and partly for money lent, he thereby gave sufficient intimation to. his adversaries that he was satisfied to rely upon the bond as a gift, provided it were found not to be a, counter-security. Fourthly, the frame o.f the issues then directed, that is, on the 29th June 1829, most distinctly

1013 I CLARK & FINNELLY. NICOL V. VAUGHAN [l 833]

called the attention of the Respondents to the materiality of their present objection : for one was to try the question, given for value or not, another to try the question, indemnity or not, and the third to try the question, bounty or not (see 2 Dow and Clark, 425). It cannot surely be contended that they ought not to have been prepared for the event, had the issues been tried-the event, I mean, of the first being found against the Appellant, and the second and third in his favour, that is, the effect of the whole matter being found by the jury, as it is now placed by the decision of this House, confirming the Master's report, and establishing the [523] bond as voluntary and a gift. And fifthly, though this House in 1831 reversed the order directing the issues, it also gave the Appellant the leave, which had been refused below, of withdrawing his exception to the report. This is, in my view of the case, very material; for this leave given, and of course taken, to1 withdraw the exception, placed the case in October 1831 exactly as it would have been if no exception had been taken by the Appellant upon the ground of the bond being for value, arid left the parties contending thus: the one that it was indemnity, the other that, it was bounty; and therefore, it is manifest that there was no third or middle term, nothing to be considered but those two alternatives, that the only question now was between indemnity and bounty, and that if it should be found not to be indemnity, bounty it must be. Then surely was the time, when, if at all, the Respondents should have gone back to the Court below, after the decision of your Lordships in October 1831, prepared to meet the second alternative, namely, in case his Honor should be of opinion with the Master, that there was no1 evidence to show indemnity, for in that case it must be bounty, and then their present contention became material, nay, decisive; in a word, they had a plain course to take when they went back : they were to. maintain, first, that the bond wa,s a counter-security and not a gift; but next, if they should fail in showing that, they had to- state that it was impeachable in equity on account of the circumstances now urged. That would have rendered it immaterial how the first question was de¡cided, for either way they must prevail. The reference made to the Master, in, April 1827, it must be further observed, was by consent of all parties, nor, indeed, without such consent could the examination, which formed part of the order, have been directed. [524] Their object apparently was, the object of all the parties apparently was, to' void a, tedious litigation, and the bringing on at once the investigation of all the circumstances; and the reference expressly gives the Master authority to inquire into the consideration and all the circumstances relative to the bond. Under that order, there waa not a single one of the matters now alleged, into which the Master might not have inquired, and the Respondents could have raised the whole of their present objection. They might afterwards, when they found the Master had reported the bond not to be a counter-security, but a gift, have petitioned the Court and raised their objection, praying to have the circumstances in which the bond was granted further inquired into; if the Court should confirm the Master's report finding it was gift and not indemnity; and contending, that though a. gift, it was impeachable. The only objection that could have been, made then to such further inquiry, is this, that the Respondents might have taken the same ground earlier-I will not say that that objection might not have been then successful, but that objection applies with ten-fold force now. It is suggested that the Appellant may, by a bill being filed against him, be compelled to disclose something within his knowledge relative to the bond, something which he may have heard from his father ; this is not very likely, considering that the father has himself been examined verr fully; but supposing the Appellant to know something material against his own claim, he might have been examined upon interrogatories, had the Respondents chosen to take their present objection at the right time. Upon the whole, I can see no reason for a new suit to be now commenced, in order to give them the opportunity of doing what they had abundant opportunity of [525] doing before, bringing forward an objection, of the materiality of which they could not at any period of the cause have been ignorant, and to which their attention must needs have been repeatedly called.

Upon the merits of the case, my Lords, supposing that we were now to dispose of the case on the evidence as it stands; and when we consider that the examination of Mr. Nicol is at present in the cause, there can be no doubt that we possess better mate¡rials for coming to a, decision than we could have in a new suit. It does not appear . that any injustice can be done to the Respondents, or any favour1 shown to the trans¡action in question, inconsistent with principles of the Court of Equitv if this lo-no-

1014

MIEEHOUSE V. RENNELL [1833] I CLARK & FINNELLY.

litigation is here terminated by sustaining the Appellant's claim under the bond. It is impossible to compare this with the cases t» which it has been likened, of Huguenin v. Basely (14 Ves. 273), and Lord Selsey v. Bhoades (2 Sim. and Stu. 41), before the Vice Chancellor, the present Master of the Rolls. If any credit be given to Mr. Nicol's examination, no one can suppose that there was any ignorance on the part of the obligors touching the nature of the transaction; that they intended a bounty, though a bounty certainly dictated by gratitude for services performed. There was nothing of complexity in the affair; they are proved to have been fully aware of the sum, and to have altered it from 10,000 to 12,000 upon some discussion; that they became liable on their seal, and from the moment they executed the instrument, they must have known of course; but Mr. Nicol assured them, during their lives, he should keep it inactive, and he did so-. The case of Harris v. Tremenheere (15 Ves. 34) was in [526] every way a stronger case of suspicion than this, and there the trans¡action as far as it resembles this case was supported. I have, in the former stages of the case, stated, that the only circumstance to which any importance can have been attached as against the elder Mr. Nicol's conduct, is, his having employed his own soli¡citor to prepare the instrument; but as it was a mere common money bond to be filled up, very little turns upon this, and the matter is more in appearance than in reality. It is very possible that the two ladies might not wish their own solicitor to be called in upon a matter requiring no explanation, and very little to- be done, even if they had any professional man regularly employed in their affairs, which does not appear to have been the case.

Taking the facts as they are before us, there seems to be every reason to hold that, in Lord Eldon's words in Huguenin v. Basely [14 Ves. 273], the gift was the pure voluntary and well-understood act of their own minds; nor should we be justified in speculating on possibilities and running after the means of raising suspicions, when all chance of further light being thrown upon the question is at an end, and no new investigation can give us even so much evidence as we now have for our guide. The order, therefore, complained of, as far as it regards the leave given to the Respondents, must be reversed, and there must be a direction in your Lordships' order to carry into effect the prayer of the petition of appeal and dissolve the injunction. There must also be a direction as to the computation of interest; but I will recommend to your Lordships to make no order as to the costs.

Decree below reversed.