case Osmond v Fitzroy and duke of Cleveland et e contra sir Joseph Jekyll  master of the roll Eq can ab pl a father intrust his heir apparent then a  infant to the care of a servant the heir come of age the servant take a bind  from the heir which bind be secret from the father and the heir have not  wherewithal to pay the bind equity will set aside the bind as obtain by fraud  and a breach of trust the duke and duchess of Cleveland be about to send the  Lord Southampton their old son to travel beyond sea employ Osmond who be  plaintiff in the original bill and defendant in the cross bill as a servant to  attend upon the young Lord then a infant of about seventeen and as by the  answer of Osmond it be admit to prevent his be impose upon afterward on the  Lord southampton return from abroad Osmond be continue in this service and  when his lordship be about twentyseven year of age prevail on he to enter into  a bind for the payment of pound to he the say Osmond the bind be prepare by  Osmond and keep secret from the duke and duchess there be also some proof of  the weak capacity of the young Lord and that at that time he be unable to  raise money to pay off the bind the original bill be to recover the money on  the bind which be allege peer William to be mislay and the cross bill be to be  relieve against the bind for the defendant in the cross cause it be argue that  if one who be at law allow peer William er p to be compos chin and consequent  presume to know what lie do intend to make a gift or benevolence voluntary  enter into a bind without any fraud in the obtain it though on the obligor  death it may be void against the creditor yet it will be good against the  obligor and no ground for relief in equity that in the present case here be no  evidence of a want of care much less of fraud in Osmond who be hire only to  take care of the young Lord while a infant and during his travel which trust  be therefore now determine say per cur where a weak man give a bind if there  be no fraud or breach of trust in the obtain it equity will not set aside the  bind only for the weakness of the obligor if he be compos chin neither will  this court measure the size of people understanding or capacity there be no  such thing as a equitable incapacity where there be a legal capacity but if a  bind be insist to have be give for a consideration where it appear there be  none or not near so much as be pretend equity will relieve against it in the  principal case there appear to have be a trust repose by the parent in a  servant to take care of a heir and prevent his be impose upon and peer William  the servant instead of act agreeable to his trust himself impose upon he as to  what be object that the trust be only to take care of the young Lord while a  infant or during his travel the trust continue so long as the servant remain  in the service and it be remarkable that during his infancy the law take care  of this young Lord who for that reason do not want so much the care of another  but when he be out of the protection of the law by be of age then he stand  most in need of the care of the servant a breach of trust be of itself  evidence of fraud nay of the great fraud because a man however careful  otherwise be apt to be off big guard when deal with one in who he repose a  confidence the young Lord by give his bind for a sum which he be unable to  raise subject himself to a gaol and pound be a exorbitant gift for one who  have no mean of pay it the secret the bind from the parent be also a further  evidence of fraud and young heir even when of age be under the care of a court  of equity wherefore this case though a now one yet come within the rule that  have be observe in equity and see the defendant Osmond in his answer to the  cross billsets forth that the bind in question be mislay I decree he to  release the bind see nantes v Corrock Ves on the and of June this cause be  reheard by the Lord chancellor Talbot when the decree at the roll be affirm  and the pound deposit order to be pay to his grace the duke of Cleveland the  have be in drink be not any reason to relieve a man against any deed or  agreement gain from he when in those circumstance for this be to encourage  drunkenness by if through the management or contrivance of he who gain the  deed c the party from who such deed have be gain be draw into drink by sir  Joseph Jekyll at the roll Johnson v Medlicot may Cory v Cory ves sen cook v  Clayworth Ves but in griffin v Deveuille November the Lord chancellor observe  that in almost every case upon this subject a principal ingredient be a degree  of weakness short of legal incapacity and that in this very case of Osmond v  Fitzroy no relief probable will have be give if the court have not consider  Lord Southampton as more liable to imposition than the generality of mankind  but see the report of this case of griffin v Deveuille in Wooddesons chosen  App and mad Charles from which it appear that weakness of mind alone will not  have be a sufficient ground for set aside the bind in the principal case and  see Bennett v vade atk Aylward v Kearney ba be beside the case of actual fraud  upon a contract party as where there have be pressingdown very or supplying an  answer to one falsehood vide Broderick v Broderick ante vol or where advantage  have be take of weakness of mind vide Clarkson v Hanway ante vol or of  necessity as in Bosanquet v Dashwood can tempt Tal proof v Hines can tempt Tal  Thornhill v Evans atk Heathcote v Paignon bro c c haw v Wyatt bro c c c Cox  crow v Ballard l Ves Jun Evans v Cheshire belt sup to ves Pickett v Loggon Ves  gubbins v creed Sch Lef watt v grove Sch Lef Roche v obrien ba be Strachan v  Brander Eden wood v Abrey mad or surprise as in Evans v Llewellyn bro c c peer  William er p Purcell v MNamara Ves smyth v smyth mad there be other case in  which court of equity will relieve against unequal contract though execute on  principle of public policy arise either from the subject matter of the  contract or the relative situation of the contract party of the first kind  which be also in some degree consider as fraud upon three person be the case  of marriage brocage vide hall v potter shower parliament can Robert v Robert  ante of sale of office vide law v law post of underhand agreement upon  marriage vide Turton v Benson ante vol Robert v Robert ante note or upon  composition with creditor vide Middleton v Lord Onslow ante vol and the court  have express doubt how far transaction of this nature admit of subsequent  confirmation Walmsley v booth atk coal v Gibson ves Shirley v Martin see  statement of this case in Roche v obrien ba be in exchequer November the that  Kennett v Greenwollers in Charles July the that Cockshott v Bennett t r crow v  Ballard bro c c S c Ves Jun and Cox Morse v royal Ves Roche v obrien ba be  Dunbar v Tredennick ba be of the second kind be transaction between guardian  and ware vide duke of Hamilton v Lord Mohun ante vol or person between who a  similar confidence have exist as in Osmond v Fitzroy sup coal v Gibson I ves  griffin v Deveuille in Charles November the that where the plaintiff have live  for some time before he come age with his sister and her husband the court set  aside security obtain by the husband from the plaintiff upon his attain his  age of consider the husband as much answerable to a court of equity as a  guardian S c Woodd chosen bee Purcell v MNamara ub sup or between parent and  child Glisson v okeden atk and bro p c bro p c and ed cock v Pratt ves haw v  Wyatt bro C C palmer v Wheeler ba be tweddell v tweddell turn or between  attorney and client proof v Hines can tempt Tal Walmsley v booth atk Oldham v  hand ves well v Middleton in the house of lord Cox tom p c leigh v William in  the exchequer November the that Kennet v Greenwollers in Charles July the that  Newman v pain in Charles mich Ves Jun Gibson v Jeyes Ves Harris v Tremenheere  Ves wood v down Ves Montesquieu v Sandys ib Strachan v Brander ub sup lews v  Morgan price or between a steward or agent and his principal Cray v Mansfield  ves Gartside v Isherwood bro c c fox v Mackreth bro g c S g Cox crow v Ballard  bro c c S c Ves Jun Purcell v MNamara ub sup Huguenin v Baseley Ves Harris v  Tremenheere ub sup watt v grove ub sup Medlicot v odonnel ba be Dawson v  Massey ba be Dunbar v Tredennick ba be Selsey v Rhoades S S bargain with heir  apparent c for their expectation vide Twisleton v Griffith ante vol or with  sailor for their prize money Baldwin v Rochfort will tailor v Rochfort ves how  v welldone ves to these case may be add the establish rule respect trustee  where purchase from themselves as state by the master of the roll Lord  Alvanley that any trustee purchase the trust property be liable to have the  purchase set aside if in any reasonable time Gregory v Gregory coop chalmer v  Bradley I W the beneficiary and trust choose to say be be not satisfy with it  Campbell v walker Ves fox v Mackreth ub sup Whichcote v Laurence Ves ex part  Reynolds Ves ex part Hugh Ves ex part Lacey Ves Lister v Lister Ves ex part  James Ves down v Grazebrook mere Whatton v toone mad mneill v Cahill Bligh  chalmer v Bradley ub sup a trustee however may buy from the beneficiary and  trust provide there be a distinct and clear contract between they and no  advantage take by he of his character of trustee coal v Trecothick Ves Randall  v errington Ves Morse v royal Ves Sanderson v walker Ves down v Grazebrook ub  sup Naylor v winch S S peer William er p