6 248. Pothier too, of whom it has been remarked that he is generally swayed by the purest morality, says: Equity ought to preside in all agreements. Hence it follows that in contracts of mutual interest where one of the contracting parties gives or does something for the purpose of receiving something else as a price and compensation for it, an injury suffered by one of the contracting parties, even when the other has not had recourse to any artifice to deceive him, is alone sufficient to render such contracts vicious. For as equity in matters of commerce consists in equality, when that equity is violated, as when one of the parties gives more than he receives, the contract is vicious for want of the equity which ought to preside in it.' He immediately adds: Although any injury whatever renders contracts inequitable and consequently vicious, and the principle of moral duty (le for interieur) induces the obligation of supplying the just price, yet persons of full age are not allowed in point of law to object to their agreements as being injurious unless the injury be excessive; a rule wisely established for the security and liberty of commerce, which requires that a person shall not be easily permitted to defeat his agreements, otherwise we should not venture upon making any contract for fear that the other party, imagining himself to be injured by the terms of it, would oblige us to follow it by a lawsuit. That injury is commonly deemed excessive which amounts to more than a moiety of the just price. And the person who has suffered such an injury may within ten years obtain letters of rescission for annulling the contract.' 1 249. After such concessions we may well rest satisfied with the practical convenience of the rule of the common law, which does not make the inequality of the bargain depend solely upon the price, but upon the other attendant circumstances which demonstrate imposition or some undue influence.2 The Scottish law has adopted the same practical doctrine.3 250. This part of the subject may be concluded by the remark that Courts of Equity will not relieve in all cases even of very gross inadequacy, attended with circumstances which might otherwise induce them to act, if the parties cannot be placed in 1 Pothier on Oblig. n. 33, 34, by Evans; ante, § 247. Erskine, Inst. B. 4, tit. 1, § 27. statu quo; as for instance in cases of marriage settlements, for the court cannot unmarry the parties.1 251. Cases of surprise and sudden action without due deliberation may properly be referred to the same head of fraud or imposition.2 An undue advantage is taken of the party under circumstances which mislead, confuse, or disturb the just result of his judgment, and thus expose him to be the victim of the artful, the importunate, and the cunning. It has been very justly remarked by an eminent writer that it is not every surprise which will avoid a deed duly made. Nor is it fitting; for 1 1 Madd. Ch. Pr. 215; North v. Ansall, 2 P. Will, 619. -- Mr. Baron 2 See ante, § 120, note 2; Howe v. Wheldon, 2 Ves 516. Powel, in the Earl of Bath and Montague's Case (3 Ch. Cas. 56), used the following language: It is said that this is a deed that was obtained by surprise and circumvention. Now I perceive this word "surprise" is of a very large and general extent. They say that if the deed be not read to or by the party, that is a surprise; nay, the mistake of a counsel that draws the deed either in his recitals or other things, that is a surprise of a counsel, and the surprise of counsel must be interpreted the surprise of the client, &c. If these things be sufficient to let in a Court of Equity, to set aside deeds found by the verdict to be good in law, then no man's property can be safe. I hardly know any surprise that should be sufficient to set aside a deed after a verdict, unless it be mixed up with fraud, and that expressly proved.' Lord Chief Justice Treby in the same case (p. 74) said: As to the first point of surprise, &c., I confess I am still at a loss for the very notion of surprise, for I take it to be either falsehood or forgery, that is, though I take it they would not use the word in this case, - fraud; if that be not the meaning of it, to be something done unawares, nor with all the precaution and deliberation, as possibly a deed may be done. Here was a case cited not long ago, &c., out of the Civil Law about surprise, &c. A man was informed by his kinsman that his son was dead, and so got him to settle his estate upon him. This is called, in the Civil Law, surreptio, &c. Now the civilians define that thus: Surreptio est cum per falsam rei narrationem aliquid extorquetur," when a man will by false suggestion prevail upon another to do that which otherwise he would not have done. And I make no doubt that equity ought to set aside that; but then this is probably called a fraud.' See Lord Holt's opinion in the same case (p. 103). The Lord Keeper (Lord Somers) in the same case said (p. 114): 'Now for this word "surprise," it is a word of a general signification, so general and so uncertain that it is impossible to fix it. A man is surprised in every rash and indiscreet action, or whatsoever is not done with so much judgment as it ought to be. But I suppose the gentlemen who use that word in this case mean such surprise as is attended and accompanied with fraud and circumvention. Such a surprise may indeed be a good ground to set aside a deed so obtained in equity, and hath been so in all times. But any other surprise never was, and I hope never will be, because it will introduce such a wild uncertainty in the decrees and judgments of the court as will be of greater consequence than the relief in any case will answer for.' See ante, § 120, note 2. it would occasion great uncertainty, and it would be impossible to fix what is meant by surprise; for a man may be said to be surprised in every action which is not done with so much discretion as it ought to be. The surprise here intended must be accompanied with fraud and circumvention,2 or at least by such circumstances as demonstrate that the party had no opportunity to use suitable deliberation, or that there was some influence or management to mislead him. If proper time is not allowed to the party and he acts improvidently, if he is importunately pressed, if those in whom he places confidence make use of strong persuasions, if he is not fully aware of the consequences but is suddenly drawn in to act, if he is not permitted to consult disinterested friends or counsel before he is called upon to act in circumstances of sudden emergency or unexpected right or acquisition, in these and many like cases, if there has been great inequality in the bargain, Courts of Equity will assist the party upon the ground of fraud, imposition, or unconscionable advantage.3 252. Many other cases might be put, illustrative of what is denominated actual or positive fraud. Among these are cases of the fraudulent suppression or destruction of deeds and other instruments in violation of or injury to the rights of others,5 fraudulent awards with an intent to do injustice, fraudulent and illusory appointments and revocations under powers, fraudulent prevention of acts to be done for the benefit of others under false statements or false promises, frauds in relation to trusts of a 1 1 Fonbl. Eq. B. 1, ch. 2, § 8. 8 2 Ibid.; 1 Madd. Ch. Prac. 212, 213, 214. 8 Evans v. Llewellyn, 1 Cox, R. 439, 440; s. c. 1 Bro. Ch. R. 150; Irnham v. Child, 1 Bro. Ch. R. 92; Townshend v. Stangroom, 6 Ves. 338; Picket v. Loggon, 14 Ves 215. 4 See Com. Dig. Chancery, 3 M. 1, &c. 5 1 Madd. Ch. Pr. 255 to 260; Bowles v. Stewart, 1 Sch. & Lefr. 222, 225; Dormer v. Fortescue, 3 Atk. 124; Eyton v. Eyton, 2 Vern. 280; Dalton v. Coatsworth, 1 P. Will. 733. 61 Madd. Ch. Pr. 233, 234; Brown v. Brown, 1 Vern. 157, and Mr. Raithby's note (1), 159; Com. Dig. Chancery, 2 K. 6; Champion v. Wenham, Ambl. R. 245. 7 1 Madd. Ch. Pr. 246 to 252. 8 1 Madd. Ch. Pr. 252, 253; Luttrell v. Lord Waltham, 14 Ves. 290; Jones v. Martin, 6 Bro. Parl. Cas. 437; 5 Ves. 266, note; 1 Fonbl. Eq. B. 1, ch. 2, § 13, note (9); Id. B. 1, ch. 4, § 25, and notes; 2 Chance on Powers, ch. 23, §3, art. 3015 to 3025; Sugden on Powers, ch. 6, § 2, pp. 377, 387 (3d edit.). secret or special nature,' frauds in verdicts, judgments, decrees, and other judicial proceedings,2 (a) frauds in the confusion of boundaries of estates and matters of partition and dower,3 frauds in the administration of charities, and frauds upon creditors and other persons standing upon a like equity.5 253. Some of the cases falling under each of these heads belong to that large class of frauds commonly called constructive frauds, which will naturally find a place in our future pages. But as it is the object of these commentaries not merely to treat of questions of relief, but also of principles of jurisdiction, a few instances will be here adduced as examples of both species of fraud. 254. In the first place as to the suppression and destruction of deeds and wills and other instruments. If an heir should suppress them in order to prevent another party as a grantee or a devisee from obtaining the estate vested in him thereby, Courts of Equity upon due proof by other evidence would grant relief, and perpetuate the possession and enjoyment of the estate in such grantee or devisee. For cases for relief against spoliation 1 2 Madd. Ch. Pr. 97, 98; 1 Hovenden on Frauds, ch. 13, p. 468, &c.; Dalbiac v. Dalbiac, 16 Ves. 124. 2 1 Madd. Ch. Pr. 236, 237; Com. Dig. Chancery, 3 M. 1, 3 N. 1, 3 W. 8 1 Madd. Ch. Pr. 237; Mitf. Eq. Pl. 117; 1 Hovenden on Frauds, ch. 8, p. 239; Id. ch. 9, p. 244. 4 2 Hovenden on Frauds, ch. 28, p. 288. Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 3, § 4, p. 411, &c.; 1 Fonbl. Eq. B. 1, ch. 4, §§ 12, 13, 14, and notes; Com. Dig. Chancery, 3 M. 4; Jones v. Martin, 6 Bro. Parl. Cas. 437; 5 Ves. 266, note. See ante, § 184, and note; post, § 440; 1 Fonbl. Eq. B. 1, ch. 2, § 3, note (u); Hunt v. Matthews, 1 Vern. R. 408; Wardour v. Binsford, 1 Vern. R. 452; 2 P. Will. 748, 749; Dalton v. Coatsworth, 1 P. Will. 731; Woodreff v. Barton, 1 P. Will. 734; Finch v. Newnham, 2 Vern. 216; Hampden v. Hampden, 1 Bro. Parl. Cas. 250; s. c. cited, 1 P. Will. 733; Barnesly v. Powel, 1 Ves. R. 119, 284, 289; Tucker v. Phipps, 3 Atk. R. 360. In this last case Lord Hardwicke said: 'In this court the rule is not to allow a suit against an executor for a legacy before a probate of the will; but in the present case the plaintiff ought not to be put to the difficulty of going into the spiritual court to cite the defendant, because that would be giving the defendant a great advantage from his own bad acts in destroying or suppress (a) Actual as distinguished from constructive fraud is necessary to sustain a bill to set aside a judgment or decree. Patch v. Ward, L. R. 3 Ch. 203. It must be shown that there was a good defence to an action resulting in a judgment alleged to have been obtained by fraud. White v. Crow, 110 U. S. 183. come in a favorable light before Courts of Equity, 'in odium spoliatoris'; and where the contents of a suppressed or destroyed instrument are proved, the party (as he ought) will receive the same benefit as if the instrument were produced.1 (a) ing the will; for here the spoliation is, I think, proved so sufficiently as to entitle the plaintiff to come here in the first instance for a decree. As to the spoliation, consider it generally as a personal legacy where the will is destroyed or concealed by the executor, and I think in such a case if the spoliation is proved plainly (though the general rule is to cite the executor into the Ecclesiastical Court), the legatee may properly come here for a decree upon the head of spoliation and suppression. There are several cases where if spoliation or suppression is proved it will change the jurisdiction and give this court a jurisdiction which it had not originally; as in the case of Lord Hunsdon, Hob. 109, where the title was a title merely at law, yet there being a suppression of the deeds under which that title accrued, the plaintiff had a decree here for possession and quiet enjoyment. As the jurisdiction may be changed with regard to a court of law, why may it not with regard to the Spiritual Court; and I think the case of Weeks v. Weeks, which came before me some time ago, an authority that it may; here the spoliation or suppression is certainly fraudulent, voluntary, and malicious, and therefore differs from the case of Pascall v. Pickering, where the spoliation did by no means appear to be fraudulent or malicious, but rather inadvertently done, and without any bad design. I think in such cases of malicious and fraudulent spoliations the court will not put the plaintiff under the difficulty of going into the Ecclesiastical Court, where he must meet with much more difficulty than proving the contents of a deed at law which has been lost or secreted. For in the Spiritual Court the plaintiff must prove it a will in writing, and must likewise prove the contents in the very words, which will be a difficulty almost insuperable, and which Courts of Law do not put a person upon doing; the plaintiff must also prove the whole will, though the remainder of it does not at all belong to or regard his legacy. I think if this had been a mere personal legacy, the court under the circumstances of this case ought to interpose; and the rather, because in bringing suits against an executor this court goes further in requiring a probate than courts at law. But here the case is stronger to entitle the plaintiff to a decree, because the legacy is out of real and personal estate both; and as to the real estate there is no occasion to prove the will in the Spiritual Court to entitle the legatee to recover his legacy out of the real estate. This would be clearly the case where the charge is only upon the real estate; and though the heir is entitled to have the personal estate to exonerate his real, yet if he is made executor, and has, by a voluntary and fraudulent act, put the legatee under such difficulties as make it almost impossible for him to prove the will, it is reasonable to let in the legatee to have his legacy, and leave the executor to pay himself out of the personal estate.' 1 Saltern v. Melhuish, Ambler, R. 247; Cowper v. Cowper, 2 P. Will. 748, &c.; Rex v. Arundel, Hob. R. 109; Hampden v. Hampden, 1 P. Will. 733; 1 Bro. Parl. Cas. 250; Bowles v. Stewart, 1 Sch. & Lefr. 225. (a) But laches may bar relief in such cases. 9 Eq. 571. Chatham v. Hoare, L. R. |