Two classes of cases of undue influence.

1. Where exercised independently of any special relation between the parties.

2. Where implied from the existence of some confidential relation.

(a) See previous note; Dent v. Dennett, 4 My. & Cr. 269, 277, 279; Lord Kingsdown, Smith v. Kay, 7 H. L. C. 750, 779; Williams v. Bayley, L. R. 1 H. L. 200, 212, 219; Lord Penzance, Parfitt v. Lawless, L. R. 2 P. & M. 462, 468, 469 ; Allcard v. Skinner, 36 Ch. D. 145, 183 - 186, 190; Morley v. Loughnan, 1893,

1 Ch. 736, 751,752.

(b) Williams v. Bayley, L. R. 1 H. L. 200.

(c) Allcard v. Skinner, 36 Ch. D. 145, 171, 181; Morley v. Loughnan, 1893, 1 Ch. 736, 751, 752.

(d) Blackie v. Clark, 15 Beav. 595; Taker v. Tukrr, 31 Beav. 629; 3 De G. J. & S. 487.

Examples of relations where influence is presumed.

The doctrine not confined to any particular set of relations.

Husband and wife.

(e) Gibson v. Jeyes, 6 Ves. 2G6, 27G; Dont v. Bennett, 4 My. & Cr. 269, 273; Archer v. Hudson, 7 Beav. 551, 560; Lyon v. Home, L. R. 6 Eq. 655, 681; Parfitt v. Lawless, L. R. 2 P. & M. 462, 468, 469; Allcard v. Skinner, 36 Ch. D. 145, 171, 181 - 185.

(/) Gibson v. Jeyes, 6 Ves. 260, 276 - 278 ; Edwards v. Meyrich, 2 Hare, 60, 68 - 70; Holman v. Loynes, 4 De G. M. & G. 270; Savery v. King, 5 H. L. C. 627, 656; Spencer v. Top ham, 22 Beav. 573, 577; Gresley v. Mousley, 4 De G. & J. 78; Pisani v. A.-G. for Gibraltar, L. R. 5 P. C. 516, 536; Wright v. Carter, 1903, 1 Ch. 27.

(g) Archer v. Hudson, 7 Beav. 551; Harvey v. Mount, 8 Beav. 439 (elder sister); Hoghton v. Hogk-ton, 15 Beav. 278, 299, 300; Sharp v. Leach, 31 Beav. 491 (brother with whom a sister was living); Savery v. King, 5 H. L. C. 627, 655; Turner v. Collins, L. R. 7 Ch. 329; Kempson v. Ashbee, L. R. 10 Ch. 15; Bainbrigge v. Browne, 18 Ch. D. 188; Powell v. Powell, 1900, 1 Ch. 243.

(A) Hatch v. Hatch, 9 Ves. 292.

(i) Nottidge v. Prince, 2 Giff. 246; Lyon v. Home, L. R. 6 Eq. 655; A Heard v. Skinner, 36 Ch. D. 145; Morley v. Longhnan, 1893, 1 Ch. 736, 752.

(k) Dent v. Bennett, 4 My. & Cr. 269, 276; Mitchell v. Horn-fray, 8 Q. B. D. 587, 589.

(/) Bridgeman v. Green, 2Ves.sen. 627, Wilm. 58; Hunter v. Atkins, 3 My. & K. 113, 136, 140, 141; Pent v. Bennett, 4 My. & Cr. 269, 277, 279; Smith v. Kay, 7 H. L. C. 750, 779; Morley v. Loughnan, 1893, 1 Ch. 736, 752.

(m) See Huguenin v. Baseley, 14 Ves. 273; Hunter v. Atkins, 3 My. & K. 113; Tate v. Williamson, L. R. 2 Ch. 55; Morley v. Loughnan, 1893, 1 Ch. 736. 752.

It is on the ground of public policy that contracts and conveyances are presumed to be voidable by one party, if the other occupied a position of influence over him, or were under a duty of giving him advice (q). As regards this duty, the person on whom it is incumbent is bound to give the other as good advice in the matter of any contract or conveyance made between them as if the transaction were carried out with some third person and not with himself. The burthen is therefore laid on him of proving that the terms of any such contract or conveyance executed in his own favour are in all respects fair and reasonable; such, in fact, as a competent adviser, acting exclusively on behalf of the other party would reasonably advise him to accept (r). The duty of so advising a vendor or purchaser of land includes the duty of communicating to him any circumstance known to the person bound to advise and enhancing or depreciating the value of the property (s); and it follows of course that the mere non-disclosure of any such circumstance is sufficient to avoid the sale (t). This principle is exemplified, not only in the case of a purchase by a solicitor from his client (n), but also where land is bought by the vendor's agent having the management of his property (x) or his steward (y), or any person who has undertaken to advise him as to his financial affairs (z). And it is further applicable in the case of a purchase by a trustee of his cestui-que-trust's interest in the trust property (a). Where a solicitor or other adviser purchases from his client for value, what he has to prove in order to maintain the transaction, is that the terms he gave were fair and reasonable, that is, as good as could have been obtained from any one else; and if this be made out, the circumstance that the client was not advised by a separate solicitor or adviser acting independently for him, will not of itself avoid the sale (b). But it appears that in such cases the solicitor's proper course is to insist that the client shall be so separately advised; and the fact, that he has not done this, will be weighed in connexion with the other evidence and so may tell against the validity of the sale (c). And a voluntary conveyance or gift by a client to his solicitor or in the solicitor's favour will not be upheld unless the client were actually advised (d). If a solicitor or other adviser obtain information while acting as such with respect to some property of his client, and purchase the property at some time afterwards, when the relation between them has been severed, the sale is nevertheless voidable if the purchaser did not disclose the information in question (c). And this rule applies equally in the case of a purchase by a trustee from his cestui-que-trust (f).

Voluntary conveyances.

Gifts by will.

Undue influence presumed from confidential relation on the ground of public policy.

What the duty of advising another imports.

(n) Grigby v. Cox, 1 Ves. sen. 517, 518; Nedby v. Nedby, 5 De G. & Sm. 377; Barron v. Willis, 1899, 2 Ch. 578, 585 (reversed on the facts, 1902, A. C. 271). It has been held that a fiduciary relation of the kind above mentioned may exist between a man and the woman, whom he is engaged to many; Page v. Horne, 11 Beav. 227; Cobbett v. Brock, 20 Beav. 524, 530; and in special circumstances between a man and a woman, with whom he has gone through a marriage ceremony, which is void, but which she believes to be valid; Coulson v. Allison, 2 De G. F. & J. 521; see Farmer v. Farmer, 1 H. L. C. 724, 752.