This court can certainly relieve against all kinds and species of fraud.

Fraud may either be dolus malus, a clear and exprefs fraud, er fraud may arise from circumftances, and the neceffity of the perfon at the time.

There are alfo hard unconscionable bargains, which have been conftrued fraudulent, and there are inftances where even' the common law hath relieved for this reafon expressly.

But this court will relieve against prefumptive fraud, fo that equity goes further than the rule of law, for there fraud must be proved, and not prefumed only.

To take an advantage of another man's neceffity, is equally bad, as taking advantage of his weakness, and in fuch fituation, as incapable of making the right use of his reason, as in the other.

In the marriage-brocage bonds, one of the parties to the marriage only is deceived and defrauded, and not either of the parties to the marriage-brocage bond, and yet the court have relieved, for they hold it infected by the fraud, and relieve for the fake of the public, as a general mifchief.

In like manner, where a Debtor enters into an agreement with a particular creditor, for a compofition of 10s. in the pound, provided the reft of the creditors agree, and this creditor at the fame time makes a private clandeftine agreement for his whole debt, and though no particular fraud to the debtor, yet as it is a fraud on the creditors in general, who entered into the agreement, on a fuppofition the compofition would be equal to them all, the court has relieved.

So in bargains to procure offices, neither of the parties is defrauded or unapprized of the terms, but it ferves to introduce unworthy objects into public offices; and therefore, for the fake of the public, the bargain is refcinded.

Political arguments, in the fulleft fenfe of the word, as they concern the government of a nation, muft, and have always been of great weight in the confideration of this court; and though there may be no dolus malus, in contracts as to other perfons, yet if the rest of mankind are concerned as well as the parties, it may properly be faid, that it regards the public utility.

Mr. Attorney General faid, that it was a vain and wild imagination, to think any general law can prevent prodigality and extravagance, and yet the law-makers in ancient Rome, though they were not fo weak as not to know, that laws to reftrain prodigals might be ufelefs in many inftances, thought it neceffary ftill to put a prodigal under the care of a curator, and also made their famous fenatus-confultum Macedonianum merely with a view to prevent it.

14.

Whatever

Whatever may be called a legislative authority in this court, I utterly disclaim; but fo far as the court have already gone in cafes, fo far as Lord Nottingham, Lord Cowper, Lord King, Lord Talbot have gone in the feveral cases before them, I think myself under an indispensable obligation of following.

I have fpent fo much time principally with this view, that the work of this day may not be misunderstood, as if the court had departed from their former precedents, and established a new one, for unconscionable bargains.

The third point is, Whether the new fecurity given by Mr. Spencer, after the death of the Dutchefs of Marlborough, amounts to a confirmation, and is fufficient to bar the plaintiff of relief.

If the first bond had been void at law, no new agreement would have made it better, the original corruption would have infected it throughout.,

But as bargains that are not cognizable at law, are properly the fubject of this court's confideration, new agreements and new terms may confirm what might otherwife have admitted a queftion as to the fairness of it.

The evidence feems to prove clearly, that there was no compulfion on Mr. Spencer at this time, his neceffities were entirely over, for 21,000l. a-year was, by the difpofition in the dutchefs's will, added to 7000l. a-year he had before, fo that a little more than a third of his annual income would have discharged the defendant's whole demand.

Upon the whole, I am opinion the only relief the court can give, is against the penalty and judgment, and as the plaintiffs had probabilis caufa litigandi, and the defendant's a cafe far from entitling him to the favour of the court, I fhall not therefore give him cofts against the plaintiffs; for I agree entirely with the Mafter of the Rolls, that the plaintiffs, as trustees, are to be greatly commended for fubmitting a question of this nature to the confideration of a court of equity.

Let it be referred therefore to a mafter, to take an account of principal and intereft due on the bond in 1744, and the judg ment thereon, and to tax the defendant his cofts at law; and on payment to the defendant by the plaintiffs, of what shall be due at law, let the defendant deliver up the bond to be cancelled, and let fatisfaction be acknowledged on the judgment, and the expence of the plaintiffs." R-d

The limits of our publication will not allow us to give more than the above extract, but we imagine that this article may prove fufficient to induce the Reader to have recourse to the work itself; where he may perufe the cafe at large, in the Author's own words.

Obfervations

Obfervations on the Nature, Caufes, aud Cure, of thofe Disorders, which have been commonly called Nervous, Hypochondriac, or Hyfteric. To which are prefixed fome Remarks on the Sympathy of the Nerves. By Robert Whytt, M. D. F. R. S. Physician to his Majefty, Prefident of the Royal College of Phyficians, and Profeffor of Medicine in the Univerfity of Edinburgh. 8vo. 6s. Becket and De Hondt.

W

HEN a writer who has given repeated proofs of his intimate acquaintance with the fubjects on which he treats, attempts the difcuffion of others, within his own profeffion, that are confiderably abftrufe and curious, the expectations of thofe who are engaged in the fame pursuits, are agreeably excited and though the most penetrating of them should previously be affured, that an effectual and thoroughly fatisfactory investigation of the fubject exceeds the powers of the human mind, they will rejoice in its being enterprized by a gentleman, who seems beft qualified to attain at least a partial success, by reflecting fome new light on the topic; fince its natural ab ftrufenefs might have been ftill farther augmented by the attempts of a lefs adequate inveftigator.

The fubject, and the Author, of the prefent work, appear to us to be thus circumftanced; and Dr. Whytt's fhort, but fenfible and modeft preface informs us, that the intention of the treatife is to wipe off the reproach, that affirms phyficians have beftowed the character of nervous on all those disorders, of whose nature and causes they were ignorant; and alfo to throw fome light on nervous, hypochondriac, and hyfteric complaints; as well as to fhew how far the principles laid down in his Effay on the Vital and other Involuntary Motions of Animals, may be of use, in explaining the nature of feveral difeafes, and, confequently, in leading to the moft proper method of cure.'

Towards obtaining fo defirable a confequence, and to make his difcuffion as clear as poffible, by difplaying it in all its neceffary diftinctnefs and connection, Dr. Whytt divides his work into eight chapters. The first treats of the ftructure, use, and fympathy of the nerves; and having premised here, that we can have no idea of the exility of a fingle nervous fibril, he adds, that though it seems probable the nerves derive a fluid from the fubftance of the brain, yet its extreme fubtilty makes us wholly ignorant of its nature and properties; and equally ignorant, whether fuch fluid ferves only for the nourishment and fupport of the nerves; or whether it be not the medium by which all their actions are performed. But from the continued motion of the heart and other mufcles, after their feparation from the body, he very naturally concludes, that the contraction of irritated

muscles

muscles is not owing to the diftention of their hollow fibres, by a more copious influx of the nervous fluid at that time; and here he encounters that phyfiological hypothefis, which supposes fuch an influx, by fome experiments and arguments, which we confefs prevailed confiderably with ourselves to the rejection of it. Neither does our Author accede to their opinion, who fuppofe nutrition effected by means of the nervous fluid, because those parts, whose nerves are deftroyed, or greatly deprived of their ufual power, become smaller but he rather thinks, this is owing to an abolished or very languid circulation of the blood in those very small veffels, which are thus deprived of the influence of the nerves; and which influence appears, from experiments, greatly to affect the circulation through fuch veffels. When objections to general opinions are thus founded, it removes all fufpicion of a writer's diffenting from them through novelty or affectation; but fhews it must refult from his ferious intention to investigate and establish phyfiological truths.

Our learned Author's next obfervation is, upon the remarkable fympathies in the body by means of the nerves; and having abundantly established their general sympathy by many inconteftable facts, and by a few experiments made with opium, he proceeds to that particular and very remarkable fympathy between several organs, which he difplays throughout fifteen pages, in a very clear and curious manner, by certain facts, which are pregnant with ufeful, practical fuggeftions. That this fympathy or confent is folely effected by the brain and nerves, as the mediums of feeling, he proves in feveral subsequent pages. He acknowledges, however, that it will be found very difficult to account, particularly, for the various instances of fympathy, either in a found or a morbid ftate. He is averse to that prevailing opinion, which afcribes thefe fympathies to communications between the nerves, and particularly to the connection which the intercoftals have with the fifth, fixth, and eighth pairs, and with most of thofe proceeding from the spinal marrow; which hypothefis he thinks liable to infuperable difficulties, from the entire diftinctnefs of every nerve from any other, from its origin in the brain or fpinal marrow to its termination, as they have no inofculations like the blood-veffels. And fhould it be fuggefted, that different nerves may communicate in the ganglia, the Doctor with great probability fuppofes a confufion in our fenfes would unavoidably follow, as well as in the motions of different muscles; fince the impreffion of external objects would be communicated to other nerves than thofe first impreffed; whence every phyfiologift would infer, feveral inconveniencies muft neceffarily enfue, which in fact do not. He likewife ftrongly exemplifies a remarkable fympathy between feveral parts, whole nerves have certainly not the leaft commu

nication;

nication; and starts many queries which fhew the improbability at least, from fympathy, in confequence of fuch an imaginary communication.

For fuch reafons, and others, he concludes, that all fympathy must be referred to the brain itself, and the fpinal marrow, as fources of all the nerves: and this he renders highly probable by feveral strong queries and arguments founded on facts; and which imply an exact anatomical knowlege of the nerves. He repeats it, however, that this principle will not enable us to account fatisfactorily for all the inftances of fympathy obfervable in animal bodies; as many of them may depend on such a state of the brain, &c. as cannot be the object of our fenses; adding in a note, p. 57,- For if confent fuppofes feeling; and if feeling cannot, any more than intelligence, be a property of matter, however modified; it muft follow, that fympathy depends upori a principle that is not mechanical; and that to fuppofe it may be owing folely to the particular fituation, arrangement, or connection of the medullary fibres of the brain, or to the union of the nerves proceeding from it, is as unreafonable, as to imagine that thought may be the refult of a motion among the particles of the animal fpirits, or other fubtile matter in the brain.'

L

The Doctor had just before obferved, that the fympathy of the nerves at their origin must at last be referred to the fentient power of the foul, which foul he fometimes terms the fentient principle: and he thinks thofe ideas or affections excited in it, accompanied with correfponding motions or feelings in the body, are owing to fome change made in the brain and nerves by the mind; though we neither know what that change is, nor how it produces thefe effects. He proceeds, however, to give a phyfiological rationale of the visible effects of fear, fhame, and other emotions of the foul, on the body, which is at least very curious and entertaining, and which he does not obtrude on his readers as certain and demonstrative.

Our ingenious Author next endeavours to explode the opi nion, that the fudden changes made in the motions of the fluids by the paffions, are owing to the blood-veffels being contracted by the nervous fibres which furround them, like cords or ligatures. This he is induced to difbelieve, from the nerves being in no sense muscular; and from their having been proved to be among the leaft elastic parts of the body, Haller having concluded they were not endued with irritability, or a power of contracting themselves, when ftimulated, Immediately after he attempts to fhew, that if the nervous filaments could ftraiten the veffels, like cords, the changes produced in the body by the paffions could not be accounted for on fuch a principle: and hence he concludes, that the expreffions of the increafed motions, convulfions, or fpafmodic contractions of the nerves, though fre

quently