United Kingdom House of Lords Decisions

In answer to this letter, the appellant stated, that he was perfectly aware that a great advantage had been conferred upon him; but that it was the intention of the Doctor to do so, and that he had expressly said so on the occasion alluded to in Mr Moir's letter. This letter from the appellant, it was said, had never been received; and as he was about to leave town, Messrs Moir and Bridges, acting on behalf of Dr M'Neill, executed a protest against the appellant, in which they stated, that it was never the intention of Dr M'Neill to enter into a transaction, whereby to discharge a debt of L. 3000 upon the terms contained in the missive, but that, on the contrary, he had been purchasing a perpetual annuity.

The appellant having afterwards brought an action for implement, Dr M'Neill assigned the debt in trust to the respondents, Messrs Moir and Bridges, who raised an action of reduction, on the ground that the “said missive was obtained from the said Dr James M'Neill by the defender, through extreme facility on the part of the granter, on an understanding of the transaction by him totally different from that which is pretended to be borne out by the words of the said missive, without any onerous or just cause, and to the granter's great hurt and prejudice, and enormous lesion.” The Lord Ordinary, after conjoining the two processes, pronounced this interlocutor:—

“In the said process of reduction, finds it asserted upon the part of the pursuers, that Dr M'Neill is about 80 years of age, although, from his having been born in a part of Ireland where no register of baptisms had been kept, his precise age is not exactly known; and finds it not denied by the defender, that Dr M'Neill is a man far advanced in years: Finds, That the missive under reduction, dated 25th December 1811, contains an agreement to the effect, that, as the defender had that day given the Doctor his bill for L.230 sterling, payable three months after date, which was to be deducted from the account due by the defender to Dr M'Neill, he thereby agreed to free the defender from all bonds and other claims that he had against the

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defender, on condition of his granting him a bond of annuity during his life for a sum equal to 7 ½ per cent of the balance: Finds, That Dr M'Neill having, on the very day on which the missive was written, communicated the scroll thereof, as delivered to him by the defender, to Walter Moir, accountant, now acting as one of his trustees, that gentleman, upon the same day, wrote to Gallochilly's agent, that “the Doctor had been just mentioning to me something of an arrangement to be gone into by Gallochilly and him, the meaning or effect of which he does not seem to have any idea of;” and that this letter was followed by a protest upon the 28th December 1811, on the part of the present pursuers, as trustees for Dr M'Neill, against the defender and his agent, demanding delivery of the agreement as having been totally misunderstood by Dr M'Neill, and offering back the promissory-note for L.230 sterling: Finds, That there was no person present upon the part of Dr M'Neill at the time this agreement was entered into, although there was a man of business present on the part of the defender, and who is the writer of the missive in question, which is a probative document, in terms of the Act 1681: Finds, That the defender kept this missive of agreement, and gave Dr M'Neill a scroll not probative, whereby the defender had it in his power, by destroying the probative document in his possession, to put an end to all legal evidence of its existence; whereas Dr M'Neill had no document whatever from which the agreement could have been legally authenticated: Finds, That the accounts were not adjusted, nor was the amount of the balance due by the defender to Dr M'Neill ascertained at the time this missive was entered into: Finds, That the agreement affords no presumption of any intention upon the part of Dr M'Neill to abate any part of his claim, nor to pass from any part of it as doubtful; but, on the contrary, to convert the whole balance of principal, of whatever remained after the payment of L.230, into an annuity at the rate of 7 ½ per cent, which it is said the Doctor understood to be a perpetual annuity; whereas the missive in question bears, that it was only an annuity during his life: Finds, That an annuity at the rate of 7 ½ per cent to a man of so great an age as Dr M'Neill, was a most unequal and unfair transaction, as the life of Dr M'Neill, at his age, was not insurable; and 2 ½ per cent above the ordinary interest afforded no compensation for the sinking of the principal for such an annuity during the Doctor's life: Finds, That a large part of the debt due by the defender to Dr M'Neill was secured by heritable bond and

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infeftment; whereas this agreement for sinking the balance into an annuity does not even stipulate heritable security for the payment of that annuity in lieu of the heritable debt which was to be thereby extinguished; and therefore, in the whole circumstances of the case, reduces, decerns, and declares, in terms of the libel: And in the action Hector Frederick M'Neill against Dr M'Neill for implement of the said agreement, assoilzies him from the conclusions of that action; and in both actions finds the said Hector Frederick M'Neill liable in expenses, of which allows an account to be given in, and decerns.”

To this judgment the Court adhered on the 4th of July 1816. ^*

In the meanwhile Dr M'Neill had died, leaving a deed of settlement in favour of his natural daughter, Mrs Mary Black M'Neill, spouse of Robert Jolly, of which a reduction had been brought by his heir-at-law, on the ground of fraud and facility. Issues were sent to a jury, who negatived the allegations of fraud, but found that Dr M'Neill was facile. This, however, not being sufficient of itself to set aside the deed, the Court sustained it, and Mrs Jolly and her husband thereupon became parties to this cause. At the distance of nearly five years after the last judgment, the appellant brought an appeal against the interlocutors setting aside the missive and refusing to give implement to the transaction, on the ground, —

1. That as the missive was ex facie a regular and valid deed, executed by a party sui juris, and who had homologated the same by receiving the appellant's bill for L.230, it was binding and effectual against him; and as there was no evidence either to prove facility, or to shew that the consent by Dr M'Neill had been obtained otherwise than lawfully, the judgments complained of were erroneous. And,

2. That as the terms of the agreement were quite explicit, it was impossible to allege that the Doctor had misunderstood the transaction; and it was not relevant to state that there had been inequality. To this it was answered, —

1. That at though facility of itself was not sufficient to set aside a deed, yet if it were combined with any other circumstance indicative of an undue advantage having been taken of the facile person, the deed was ineffectual: that, in the present case, Dr M'Neill was nearly 80 years of age, and it had been proved by the verdict of a jury that he was in a state of facility: that the

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* Not reported.

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