traverfed, if the finding had been against him; but the finding was for him, by which he was left to the liberty of his perfon, and of his eftate, which the crown would otherwife have taken, not for his benefit, but for its own. Great objections were made to the conduct of the commiffioners, and to the charge given by the chairman. It came before my predeceffor, and before me; and, fpeaking for myself, I may fafely fay, that my opinion was given upon as cool deliberation as poffible.

As to another part of the 3d ground, that he was fo far of unfound mind, as to be incapable of managing his affairs, and confequently of doing any legal act; the true answer has been given; and, indeed, the candour of the plaintiff's counsel has admitted, that there is no fuch thing as equitable incapacity, diftinct from legal. Were it otherwife, the greatest mischiefs would arise. There are no fcales to weigh the human understanding. The wisdom of the law, is human wisdom, ripened by ages; and the law draws lines, which, though in a moral fenfe, are imperfect (as all human institutions are) yet they are better than none at all; infinitely better than if the judge were to determine upon every case; which would then depend upon the judge's affections, his patience, his difcretion; and nothing but confufion would arise in society. I, therefore, muft fpeak to my own rule of compos, or non compos, as defined accurately by Littleton. I must hold him capable. And this leads me to the 4th ground, that the late Earl was weak to a degree to be imposed on, and might be terrified to do any act; which is very material.

Ás to this, I have no doubt but that he was a very weak perfon. Appearances were against him, in his perfon; but there is no reliance on bodily appearances; for it often happens that there are rays of understanding, which dart through the worst of forms, and dazzle the more for coming from under fo great a cloud. The pampering of the grand-mother, the greateft cruelty ever heard of in the father, these might obfcure his understanding; but the witneffes who spoke on the part of the defendant, reprefent him very different from the early periods of his life. At the fame time it is evident they shew a

fufpicion of his underftanding. As to his being liable to be impofed upon, I am afraid there are few who are not: however, it is certain that men are liable to practices of this kind, in proportion to their weaknefs. Weak men have often strong paffions, keen refentments, and immoderate affections; those are,certainly, fo many handles by which they may be laid hold of. They are chords, that may be played upon, and afford opportunities, of which artful men may take advantage. At the fame time, it muft not be forgot, that those paffions may very innocently have their bias. In those acts, which they do fpontaneoufly, I fee no right to interfere; unless it is faid, that weak men shall have no will at all of their own. The great objection is the playing upon the human mind, and making it fubfervient to particular purposes. It is difficult to determine the degree of the late Earl's weakness; it is probable it was chiefly as to figures; there it was very great, but in other things it was different. In Lord Donegal's cafe, Lord Donegal could not answer the most common queftions, as to figures; but when Lord Hardwicke afked him questions as to his eftate, he gave very rational anfwers, and the commiffion was refused. It appears the late Earl knew he had a great eftate; that it came from his mother; that it would go to Mr. R.-hf--t, if he did not do fomething to hinder it; that he was not infenfible of the ill treatment he received; and felt the difference; that he had an affection for his uncle L-ft-s, not arifing from the treatment he received after his father's death, for he mentions his fondnefs for him before: This is not encountered by any evidence. On the other ade, how he came by this knowledge, is another question; and probably falls under another head. There is no doubt he was weak enough to be terrified: at the fame time, abftracted from what I have mentioned, I do not fee but that he had sense enough to gain a dominion over his eftate: but this cafe depends upon what was done; and this brings me to the 5th and 6th grounds.

Weakness alone is not fufficient, there must be undue influence, either proved, or fo reasonably prefumed, as to lay a foundation for relief. The court feemed to think it the best way, to take off

the

for motions came on, in which four months were confumed; the commiffion was executed, and he was found not an idiot. There is a kind of influence which may arife from good offices, that is very innocent; this is taken notice of in the cafe of Corbet and Cabe. In whom was it fo proper to place a confidence as his uncle, who was to fucceed to his honours? Could he find a person in the world more proper? and, on the part of the uncle, was not his conduct very natural? He either thought the Earl capable, or he did not; if he thought him capable, he did it only to fave him trouble; if he thought him not capable, it was natural for him to have fome protection about him. Did he gain this influence by improper means; by blandishments, or threats; by indulging him in drinking and debauchery? I will examine them separately. Was it by blandifliments, or perfuafion, or threats They say this must be presumed. This may be the cafe, where no other caufe can be prefumed; as where an act is done in favour of a ftranger without any visible caufe; for fraud is never to be prefumed, where it can be avoided. Did he do this by flattering or feeding his vices, as was the cafe of Sir John Leigh? No. On the contrary, he was not fuffered to indulge his appetites, nor to drink immoderately; he was ftinted to a certain quantity. But it is afcribed to the defendant, that refufing to indulge him, and putting perfons about him for that purpofe, he could conduct him as he pleased. But men of weak minds have ftrong paffions, which people who wish to take advantage of, indulge. That was not the cafe here; nothing was done to ruin his health; on the contrary, the greatest care was taken of it. They fay he was prejudiced against his mother's relations. I do not recollect any evidence of this, after the father's death, that the defendant was ever heard to say any thing relative to them. Something was faid by Lady E-y relative to his cloaths; but the others were set on for this purpose. If this had been the cafe, would not fomething of it appear, at fome unguarded hour? Now, as to the blandifhments, there is no proof; nor do I find there were any means used to terrify him: nɔt but it is faid, it is poffible; for he was frighted at certain names and per

fons; but is there any other motive to which his conduct may be ascribed? He knew he had a great eftate, and that fomething must be done by which he might difpofe of it; he knew the commillion had iffued, and was moved at it; perhaps more than was neceffary. He had paffions; he had received great kindness and affection; therefore there feems to be other motives, without ascribing his conduct to these.

But it is faid, the facts speak themfelves. The true way is to judge by facts. I fhall therefore confider thofe upon which the greater ftrefs is to be laid; and I fhall divide them into two periods. Those particulars which paffed before the first recovery, and the particulars after that period; I shall then take notice of the several arguments, and afterwards of the feveral cafes. The first fact is, the defendant's going into the country to fetch him to town. I have expreffed my thoughts as to this already. As ftanding by itself, there is nothing in it; but united with other facts there may be. The next is the taking adminiftration. This is mentioned as an inftance of dominion, and a fettled purpose to poffefs himself of his fortune. That it was great injustice done to his mother's relations. How does it turn out? It is said there was a debt of 40,000l. which was never accounted for. That it was a debt from the father to the fon, but the father's affetts were only 7,000l. Here then was an abfolute infolvency, and the present defendant cannot have any apprehenfions that he could be able to pay it, because he faw the late Earl's father squander_it away in his life time. Was it proper for the late Earl with all his infirmities to have the administration, rather than his uncle? What profit could the uncle make by it? Nothing. If there was any damage, it would be equally a damage to the defendant as to the plaintiff. Could not they call him to an account? he acquired no intereft by it: nay perhaps if the defendant had any defign, it would be better that the late Earl fhould take the adminiftration himself. Therefore I cannot poffibly confider it as any proof of fraud.

The third ground is, as to the receiver. Had there been a motion made for a new receiver, at the fame time that there was an application for a new commiffion?

They

They say this was evidence of a defign to poffefs the rents and profits: there was an alteration in this caufe which would most likely prevent any fraud, and cause a minute infpection into their conduct: so that they would hardly come here with a fraudulent propofal. The court would in that idea, act as in the cafe of a common receiver, and order them to give security: fo that there was nothing improper in that application. The next thing is placing M-c L--n and his wife about him, which they fay was neceflary for the defign. Without doubt the machinery is right enough; where there is fuch a defign it is ufual. But there must be fuch a defign before fuch machinery can be applied. Now how ftands the cafe? the late Earl was undoubtedly very weak, had strong paffions, and strong appetites, would fometimes eat voraciously and drink immoderately, and wanted conftant care and attention. Now, was there any thing improper in placing a perfon to ride with him, to walk with him, to hinder him from getting into other perfons hands? The defendant had a remainder in the L-ft-s eftate, ought he have permitted him to wander about Stephen's Green, expofed to the attempts of every perfon? There are creatures who go about, like beafts of prey, from whom it would be very difficult to get him again.-Now, who was there more fit to take care of him than Mr. M-c L--na Gentleman of the army; by profeffion, a man of honour; by profeffion, a man of courage; by profeffion, a man of education, not like to lead him into fcrapes; who could be more proper? For my part, I cannot help thinking it a very prudent act, and, if I had the appointment, or had referred it to a matter; I do not think either he or I, could have done better.

The next thing I shall take notice of, though a little out of order, is the grant of the annuity. They fay this is a proof for what he was defigned; that he was to be the inftrument for bad purposes. Now, was it right to give an annuity? With refpect to myself, I cannot fuppofe any perfon could be got that would not probably expect a great deal more. A mafter in chancery would certainly give more; but it is its being for life that makes it of fufficient value; how has it the appearance of a bribe? he could not expect much pleafure from his attendance on the Earl; it Auguft, 1774,

could be but a gloomy fcene, and certainly expected fatisfaction for it; fo far from being a bribe, it is not fufficient. If it was to do a duty, it is fearce enough; if he was to do dirty work, it is a great deal too little. The next is C-v-l-e's coming into the house, and the giving him 300l. Now how does it stand upon the evidence? he certainly came to the house, and it is faid that was highly improper: perhaps it would have been better to have turned him out of doors, but he had been there in fome capacity in the father's life time; and he had laid out feveral fums which he had not been repaid. Turning him away, without paying him, would be rather wrong. I do not know how the finances of the family were at that time. His father left no money, and his eftate was in the hands of the court; however, on C-v-l-e's raifing his hand to the Earl, the defendant turned him out of doors; and upon paying him the 300l. got a receipt in full. This feems to be a reasonable account. It might have been better if he had not fuffered him to come at all; and yet, perhaps, it might be an ungenerous act to forbid it. The next thing is the propofal during the commiffion. As to this, there is fomething that cuts both ways, the commiffion is illued, and then comes the proposal, that the estate should be fettled fo as to give the defendant very little chance of ever enjoying it; that the prefent plaintiff should be made tenant for life, and remainder in tail; and a provifion for Mr. R--hf--d of 2000l. a year. At first fight it looks as if the defendant thought there would be nothing abfurd in the propofal, that could naturally occur to him, if the late Earl had been totally incapable, he would never have offered fuch a propofal, as that an idiot should make a fettlement; but it is faid, he was afraid it would clearly come out that the Earl was of unfound mind. Did he think fo? if he did, it would be the most abfurd propofal that ever was. Did he imagine the plaintiff thought the Earl lefs an idiot than he did? He must know they would certainly turn the proposal against them. The defendant thought the Earl might be fo difcompofed as to run a danger of a finding against him: but the propofal fhews he thought there were fome grounds for thinking him capable. Now, look at it another way. They fay there was a fixed plan. Does it appear there was

PPP

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fuch if there was, they would run any hazard rather than make the propofal: Was the plan at once relinquithed This rather strengthens the proof that there never had been fuch a defign. I do not wonder at the propofal; I can only wonder it was not accepted. The next is the application to take off the reftraining order of July, 1759. He was found not of unfound mind; what was natural to do? he levied fines, and fuffered recoveries, and was impatient to do them; but he did not know the nature of them; nor was it requifite for him to know the difference between fingle and double vouchers. Many perfons who fuffer recoveries have very imperfect ideas of them; but he knew fomething was necessary to enable him to gratify his affections, and his refentments. Why then the application is made to take off the order, foon after the finding: and coming on to be argued, on the 11th of February, the court took off the order. What must have paffed in the chancellor's breaft? he must have thought this noble Lord had been restrained from exercifing the right which every tenant in tail has, as much as parting with a thilling out of his pocket: As to the confcientious part, I fhall confider that by and by; as a weak man he could not be hindered from doing what he might do fairly. There was fomething particular in the time; the Chancellor knew it was the day before the last day of Term, and he alfo knew, the next day fome ufe might be made of it; nay I dare fay every one thought fo. So that this is no evidence

of fraud.

They fay the manner of fuffering the recovery was the ftrongeft evidence of fraud: firft, because there was no occafion for it; he did not want money, nor was he going to marry; that the perfon recommending it to him was to receive advantage from it; that he had no ferions intention to difturb this eftate; and the fuffering him to do it was a proof of fraud; for he thought to have let it gone to the former line. Now the deed, making a tenant to the precipe, was not by leafe and release, which might have been done at home without the prying of the judge; it was by bargain and fale before the chief justice. They might naturally imagine they might be quifitive about what was rung in the hall; and without doubt, as fame went, the late Earl was a bankrupt in undernding. Now what paffed? the chief

juftice asked him many queftions.-ft, fays he, "My Lord, I have been sent for, and fhould be glad to know for what purpofe?" He is afked to drink a glafs of wine?" No," fays he, in his plain manner (and it is like the man) "I will do business first." The Earl then, in anfwer to his questions, tells him, "I want to fuffer a recovery." For what do you want to suffer a recovery > "To put my eftates in my own power." Where do thefe eftates lie?

In the counties of Fermanagh, Leitrim, &c." He then asks him the value of the C-ftl-h-me estate? He tells him

3000l. a year." He asks him the value of the L-ft-s eftate?" 3000l. a year likewife." What is the whole worth (there he tries him in numbers) He anfwers, "6000l. a year." He afks him, who are the receivers, and he tells him. These were very proper anfwers, if true; and I do not find them contradicted. He then asks him, who he intends to cut off? He answers, "his aunt R--hf--t and N- H--e,"

This extends to both the estates. He afks him who N- He was? To which he gave a rough answer, that I need not repeat; but it was not the anfwer of a fool. Who do you intend to cut off befides? He fays, every one; but his unc'e L-f--s need not fear, becaufe he was a good uncle." He asks him his relation to Mrs. R--hf--d? He fays, "fhe is my aunt." What was her fon? "His coufin." He asks him, are the deeds figned and fealed? He fays,

yes," and fhews them. He asks, are they read and witneffed? The Earl anfwers, they were; and if he would

look on the back he would fee it." The chief justice then turns about and says, Has this Gentleman no friend to recommend him to the chancellor? The chancellor might as well grant a commiffion against me! He took the acknowledgment, and the matter closes.

They fay he was imposed upon, because the deed had never been read to the Earl, and they endeavoured to prove it, by thewing that it was proved by two witneffes to be read. To be fure, they vary in their account of the person who read it: but it appears it was read; and if fo, it was immaterial by whom; but that it was never read at all cannot be fuppofed; for it would be fuch a badge of fraud that it can never be imagined not to have been read, though in ever so flo