1811. COOKE 0. CLAYWORTH. Sir Samuel Romilly, and Mr. Horne, for the Plaintiff. This is an Agreement, fraudulently obtained from a Man, while in a State of Intoxication; which is apparent on the Face of the Agreement; compared with the Account, given by the Defendant, and the Evidence. The Evidence upon the Face of the Instrument is the strongest the Parts interpolated, making this a binding Agreement upon the Plaintiff, as a Demise, being in a different Ink. Independent of the Intoxication, a Court of Equity would not only refuse to perform such an Agreement, but would decree it to be delivered up. This cannot be supported upon the Principle, stated in Cory v. Cory (a), as a reasonable, proper, Agreement; and there is Evidence, that he was drawn in to drink; according to the Distinction, taken in Johnson v. Medlicot, (b). In that Respect this is distinguished from the Case of Cragg v. Holme (c); where the Court refused a specific Performance of an Agreement, made in a State of Intoxication; though no Advantage was taken: a Court of Equity not interposing on either Side in the common Case of Intoxication: but, if the Party is brought into that State by him, who obtains, and seeks Advantage from, the Agreement, the Intoxication is Part of the Fraud; which gives the Right to Relief. (a) 1 Ves. 19. (b) 3 P. Will. 131, Note (a). (c) At the Rolls, May, 1811. From a MSS. Note it was stated, that the Bill for a specific Performance was dismissed without Costs; though the Plaintiff had net contributed to make the De fendant drunk; or taken any Advantage of his Situation; and the Master of the Rolls said, he would not have decreed the Agreement to be delivered up; that the Court would not act on either Side. The 1811. COOKE 2. The Rule however against interposing on either Side in the common Case of Intoxication cannot apply in this Instance. This Agreement, as it has been altered, though not so originally, amounts to a Demise; and upon that CLAYWORTE. Ground the Lord Chancellor upon the Terms of giving immediate Possession, if the Bill should be dismissed, continued the Injunction against an Ejectment, brought by the Defendant. The Bill in Truth therefore seeks to have delivered up, not an Agreement, but a Lease; which appears in Evidence to have been converted into a Lease from an Agreement, after it was signed. Mr. Hart, and Mr. William Agar, for the Defendant, distinguished this from a Bill for the Performance of a Contract; insisting, that to obtain this Relief, the Plaintiff must shew a specific Fraud practised upon him; making it unconscientious to retain the Effect of it: the Rule being clear, that Intoxication simply gives no Protection; the Responsibility is thrown upon the Party himself, unless he can shew, that undue Advantage was taken of his Situation by those, who brought him into it with a View to that Advantage. The MASTER of the ROLLS. Retaining the Opinion which I stated in the Case, that was alluded to in the Argument, I think, a Court of Equity ought not to give its Assistance to a Person, who has obtained an Agreement, or Deed, from another in a State of Intoxication; and on the other Hand ought not to assist a Person to get rid of any Agreement, or Deed, merely upon the Ground of his having been intoxicated at the Time: I say merely upou that Ground; as, if there was, as Lord Hardwicke expresses it in Cory v. Cory (a), any unfair Advantage made of his Situation, or as Sir Jo (a) 1 Ves. 19. seph Feb. 18. : 1811. COOKE v. CLAYWORTH. seph Jekyll says in Johnson v. Medlicott (a), any Contrivance or Management to draw him in to drink, he might be a proper Object of Relief in a Court of Equity. As to that extreme State of Intoxication, that deprives a Man of his Reason, I apprehend, that even at Law it would invalidate a Deed, obtained from him, while in that Condition. After a very attentive Consideration of the Evidence in this Case I can find no Ground, on which upon the supposed State of Intoxication of the Plaintiff the Court could be warranted in decreeing this Deed or Agreement to be delivered up to be cancelled. There is a Contrariety of Evidence as to the Fact of Intoxication, upon which it is not easy for this Court to decide. There are Three Witnesses, who all swear, that at the Time of Execution the Plaintiff was perfectly sober and capable of Business: Marshall indeed says, he was as capable of transacting Business to any Extent as ever he was in his Life, Whatever Difficulty I may have in believing this after all the other Evidence, that has been produced, I should hesitate to determine a Fact, so controverted, without the Intervention of a Jury. But, supposing the Intoxication proved to a considerable Extent, still the Inquiry would remain, whether the Conduct of the Defendants has been such as to furnish Ground for setting aside this Agreement. It is admitted, that there was no previous Design in bringing about the Meeting at the Defendant's House: the Bill stating, that the Plaintiff's calling there was the Proposition of the Plaintiff to Taylor. As to the Plaintiff's being drawn in to drink by Contrivance and Management, it is to be observed, that (a) 3 P. Will. 130, Note (a). the 1811. Cook 2. the Drinking was not introduced on Account of his coming there, nor after he came there: but a Company engaged in drinking, he joined them. One Witness, Mary Hall, says, the Plaintiff was pressed, and almost forced, by CLAYWORTH, Claytoorth to drink : but her Testimony, not being corroborated by any other Witness, cannot prevail against the Denial of that Fact by the Answer (a). As to the Manner, in which the Treaty was introduced, Pedley, the only Witness upon that, represents it as proceeding entirely from the Plaintiff; that the Defendant so far from holding out any Inducement, rather hesitated to accept the Offer. There is no Pretence, that the Offer was in its own Nature such as necessarily discovers Absence of Judgment in the Person making, or a Degree of Unfairness in those accepting, it. In this State of the Evidence I cannot possibly hold, that the Plaintiff was by Contrivance and Management drawn in to drink; or that any unfair Advantage was taken of his Intoxication, to obtain an unreasonable Bargain. As to the Doubt appearing on the Face of the Paper, whether, as it stands, it contains what was dictated to the Plaintiff, read to him by Marshall, and afterwards by himself, the Investigation of that Point will be open at Law upon the Trial of any Action, founded upon this Instrument; and can be much better made there than here. Here indeed that has not been examined: it was only adverted to in the Course of the Hearing. That the Paper was not at first written, as it now stands, is quite apparent; and it will be rather difficult for the Witnesses, professing to have given a full Representation of the Transaction, to account for their entire Silence as to all, that must have been said, or done, before the Paper was brought (a) See Evans v. Bicknell, Ante, Vol. VI. 174. The East Von. XVIII. C India Company v. Donald, inte 1811. COOKE 0. CEAYWORTH. into its present State by the Introduction of the first Clause, and the consequential Erasures and Alterations. That however, as I have said, will be for another Tribunal, and in the View I have taken of the Case I can do nothing but dismiss the Bill without Costs, and dissolve the Injunction. 1811, March 21. Commission of Bankruptcy LAVENDER, Ex parte. HE Prayer of this Petition was, that a separate Com THE mission of Bankruptcy against the Petitioner might superseded, to be superseded. The Bankrupt had not surrendered under defeat a Prose cution for omitting to surren that Commission: but a joint Commission being taken out afterwards against him and another Person, he surrender under Cir- dered and passed his Examination under that: and was imcumstances of mediately apprehended, taken before a Magistrate, and erroneous Ad- committed for the Felony by not surrendering to the forvice: no Fraud; mer Commission; and the Prosecution was actually inand another stituted. Commission issued proceeding. The Petitioner by his Affidavit stated, that he was advised, that a separate Commission could not be taken out by a joint Creditor (a); that he had no criminal or fraudulent Intention; but under an Opinion, that the Advice he had received was legal and proper, and from that Cause alone, he was induced not to surrender. Sir Samuel Romilly, and Mr. Hall, in support of the Petition, admitting, that it is now settled, that a separate (a) Ex parte Detastet, ▲nte, Vol. XVII. 247. Ex parte Ackerman, Ante, Vol. XIV. 604, and the References in the Note (a), 605. Commission |