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This court can certainly relieve against all kinds and species of fraud.
Fraud may either be dolus malus, a clear and express fraud, or fraud may arise from circumstances, and the necessity of the person at the time.
There are also hard unconscionable bargains, which have been construed fraudulent, and there are instances where even' the common law hath relieved for this reason expressly.
But this court will relieve against presumptive fraud, fo that equity goes further than the rule of law, for there fraud must be proved, and not presumed only:
To take an advantage of another man's necessity, is equally bad, as taking advantage of his weakness, and in such situation, 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 bord, and yet the court have relieved, for they hold it infected by the fraud, and relieve for the sake of the public, as a general mischief.
In like manner, where a Debtor enters into an agreement with a particular creditor, for a composition of 1os. in the pound, provided the reft of the creditors agree, and this creditor at the same 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 supposition the composition 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it serves to introduce unworthy objects into public offices ; and therefore, for the fake of the public, the bargain is rescinded.
Political arguments, in the fulleft sense of the word, as they concern the government of a nation, must, 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 persons, 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 so weak as not to know, that laws to restrain prodigals might be useless in many instances, thought it necefsary ftill to put a prodigal under the care of a curator, and also made their famous fenatus-consultum Macedonianum merely with a view to prevent it.
Whatever may be called a legislative authority in this court, I utterly disclaim; but so far as the court have already gone in cases, so far as Lord Nottingham, Lord Cowper, Lord King, Lord Talbot have gone in the several cases before them, I think myself under an indispensable obligation of following.
I have spent so 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 security given by Mr. Spencer, after the death of the Dutchefs of Marlborough, amounts to a confirmation, and is sufficient 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 subject of this court's confideration, new agreements and new terms may confirm what might otherwise have admitted a question as to the fairness of it.
The evidence seems to prove clearly, that there was no compulsion on Mr, Spencer at this time, his necessities were entirely over, for 21,000l. a-year was, by the disposition in the dutchess's will, added to 7000l. a-year he had before, so 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 causa litigandi, and the defendant's a case far from entitling him to the favour of the court, I shall not therefore give him costs against the plaintiffs ; for I agree entirely with the Master of the Rolls, that the plaintiffs, as trustees, are to be greatly commended for submitting a question of this nature to the confideration of a court of equity.
Let it be referred therefore to a master, to take an account of principal and interest due on the bond in 1744, and the judg. ment thereon, and to tax the defendant his costs 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 satisfaction be acknowledged on the judgment, and the expence of the plaintiff's."
Rod The limits of our publication will not allow us to give more than the above extract, but we imagine that this article may prove sufficient to induce the Reader to have recourse to the work itself; where he may peruse the case at large, in the Author's own words.
Obfervations on the Nature, Causes, aud Cure, of those Disorders, which have been commonly calied Nervous, Hypochondriac, er Hyfteric. To which are prefixed some Remarks on the Sympathy of the Nerves. By Robert Whytt, M. D. F.R.S. Physician to his Majesty, President of the Royal College of Physicians, and Professor of Medicine in the University of Edinburgh. 8vo. 6s. Becket and De Hondt.
HEN a writer who has given repeated proofs of his in
timate acquaintance with the subjects on which he treats, attempts the discussion of others, within his own profeffion, that are considerably abstruse and curious, the expectations of those who are engaged in the same pursuits, are agreeably excited : and though the most penetrating of them should previously be afiured, that an effectual and thoroughly fatisfactory investigation of the subject exceeds the powers of the human mind, they will rejoice in its being enterprized by a gentleman, who seems best qualified to attain at least a partial success, by reflecting some new light on the topic; since its natural aba ftrusenefs might have been still farther augmented by the attempts of a less adequate investigator.
The subject, and the Author, of the present work, appear to us to be thus circumstanced; and Dr. Whytt's short, but sensible and modest preface informs us, that the intention of the treatise is to wipe off the reproach, that affirms physicians have bestowed the character of nervous on all those disorders, of whose nature and causes they were ignorant; and also to throw some light on nervous, hypochondriac, and hysteric complaints; as well as to thew how far the principles laid down in his Essay on the Vital and other Involuntary Motions of Animals, may be of use, in explaining the nature of several diseases, and, consequently, in leading to the most proper method of cure.'
Towards obtaining so desirable a consequence, and to make his discussion as clear as possible, by displaying it in all its necessary distinctness and connection, Dr. Whytt divides his work into eight chapters. The first treats of the structure, use, and sympathy of the nerves; and having premised here, that we can have no idea of the exility of a single nervous fibril, he adds, that though it seems probable the nerves derive a fluid from the substance of the brain, yet its extreme subtilty makes us wholly ignorant of its nature and properties; and equally ignorant, whether such fluid ferves only for the nourishment and support 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 muscles, after their separation from thebody, be very naturally concludes, that the contraction of irritated
muscles is not owing to the distention of their hollow fibres, by a more copious influx of the nervous fuid at that time; and here he encounters that physiological hypothesis, which supposes such an influx, by some experiments and arguments, which we confess prevailed considerably with ourselves to the rejection of it. Neither does our Author accede to their opinion, who suppose nutrition effected by means of the nervous fluid, because those parts, whose nerves are destroyed, or greatly deprived of their usual power, become smaller : but he rather thinks, this is owing to an abolished or very languid circulation of the blood in those very small vessels, which are thus deprived of the influence of the nerves; and which influence appears, from experiments, greatly to affect the circulation through such vessels. When objections to general opinions are thus founded, it removes all sulpicion of a writer's dissenting from them through novelty or affectation; but shews it must result from his serious intention to investigate and establish phyfiological truths.
Our learned Author's next observation is, upon the remarkable sympathies in the body by means of the nerves; and having abundantly established their general sympathy by many incontestable facts, and by a few experiments made with opium, he proceeds to that particular and very remarkable sympathy between several organs, which he displays throughout fifteen pages, in a very clear and curious manner, by certain facts, which are pregnant with useful, practical suggestions. That this sympathy or consent is solely effected by the brain and nerves, as the mediums of feeling, he proves in several subsequent pages. He acknowledges, however, that it will be found very difficult to account, particularly, for the various instances of sympathy, either in a lound or a morbid state. He is averse to that prevailing opinion, which ascribes these sympathies 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 those proceeding from the spinal marrow; which hypothesis he thinks liable to insuperable difficulties, from the entire distinctness 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 should it be suggested, that different nerves may communicate in the ganglia, the Doctor with great probability supposes a confusion in our fenfes would unavoidably follow, as well as in the motions of different muscles; since the impression of external objects would be communicated to other nerves than thofe first impressed; whence every physiologist would infer, several inconveniencies must necessarily enfue, which in fact do not. He likewise strongly exemplifies a remarkable sympathy between feveral parts, whole nerves have certainly not the leaft commu
nication, and starts many queries which fhew the improbabiJity at least, from fympathy, in confequence of such an imaginary communication.
For fuch reasons, and others, he concludes, that all fympathy must be referred to the brain itself, and the spinal marrow, as fources of all the nerves: and this he renders highly probable by several 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 sympathy observable 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 supposes feeling ; and if feel ing cannot, any more than intelligence, be a property of matter, however modified; it must follow, that sympathy depends uponi a principle that is not mechanical ; and that to suppose it may be owing folely to the particular situation, arrangement, or connection of the medullary fibres of the brain, or to the union of the nerves proceeding from it, is as unreasonable, as to imagine that thought may be the result of a motion among the particles of the animal spirits, or other fubtile matter in the brain.'
The Doctor had just before observed, that the sympathy of the nerves at their origin must at last be referred to the sentient power of the foul, which foul he sometimes terms the fentient principle: and he thinks those ideas or affe&ions excited in it; accompanied with corresponding 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 these effects. He proceeds, however, to give a phyfiological rationale of the visible effects of fear, shame, 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 opinion, that the sudden changes made in the motions of the fluids by the passions, are owing to the blood-vessels being contracted by the nervous fibres which surround them, like cords or ligatures. This he is induced to disbelieve, from the nerves being in no senfe muscular ; and from their having been proved to be among the least elastic parts of the body, Haller having concluded they were not endued with irritability, or a power of contracting themselves, when Aimulated. Immediately after he attempts to shew, that if the nervous filaments could straiten the vefsels, like cords, the changes produced in the body by the paffions could not be accounted for on such a principle: and hence he concludes, that the expreffions of the increased motions, conuulfions, or spasmodic contractions of the nerves, though fre