case proof versus hines vide Newman v Johnson vern beachcroft v beachcroft  vern trot v Vernon vern Prec in Chanc S c Bowdler v smith Prec in Chanc Eq Cas  Abr c c S c Lumley v may Prec in chancery Harris v Ingledew p will Davis v  gardener p will leigh v earl of Warrington bro PC and Edward bro PC king v  king p will earl of Godolphin v penneck Ves ellison v airy ibidem Huxtap v  Brooman bro Charles Rep July the plaintiff a poor man sue for a considerable  estate give a bind for a great sum of money to the defendant a person who  assist he with small sum and take some pain in the affair the defendant wife  have also intermeddle with her husband knowledge and approbation and the bind  be obtain by press the plaintiff for payment of what be expend and take  advantage of his insolvency the bind decree to stand only as a security for  what be advance and interest and the defendant leave at liberty to bring his  quantum to deserve for pain c the plaintiff be entitle in right of his wife to  some part the late sir Thomas Colebys estate and be a very mean illiterate  person and in very poor circumstance apply to the defendant a brazier by trade  and his wife to assist he in make out his pedigree and get such proof as be  necessary to the make case tempt Talbot out his title to this estate the  defendant tell he that such thing can not be do without money and he answer  that he have none nor do not know where to raise any without the defendant  assistance desire he to advance it and he will repay he the defendant accord  lie out several sum and the defendant wife employ several person to search  register c for the plaintiff pen the suit the defendant wife often declare  that she think herself and her husband entitle to a good gratuity for their  trouble and assistance of the plaintiff but be resolve not to trust to the  plaintiff generosity but to bind he as fast as pen and ink can bind he the  plaintiff come some time after to the defendant wife desire her to continue  her and her husband care for his affair she thereupon press he very much for  the payment of what money have be lie out by they whereupon he offer to give a  bind for pound Payable to the defendant in a year for what service they have  already do and for such care as they will hereafter take of his affair to  which the defendant wife reply he may take what time he please for payment of  the bind but press he very hard for repayment of what have be lie out by her  husband and her the plaintiff give her his bind for pound for the use of the  defendant her husband after the recovery of some part of the estate by the  plaintiff this bind be put in suit and now the plaintiff bring his bill to  have it set aside as undue and unconscionable obtain by take advantage of the  distress he be then under it be in proof in the cause that at the time he give  this bind he be in the mean circumstance be reduce so low as to live upon what  break scrap of meat he can get from tavern and such place case tempt Talbot er  p Mr Verney Mr fazakerley and Mr mill argue for the plaintiff that he appear  to be illiterate and in such mean indigent circumstance must natural be  suppose in the defendant power and that the necessity of his circumstance be  the cause case tempt Talbot of give the defendant a bind for such a exorbitant  sum it can never be imagine that be suitor he will have enter a bind by which  the defendant have it in his power to throw he into gaol and keep he there all  his life whether he have the good fortune to recover what he be then sue for  or not and it can as little be think that this bind be design as a mere  gratuity to the defendant the plaintiff be at that time not worth pound in the  world and it be very uncertain whether he shall ever be in better circumstance  than he then be bind take from young heir marriagebrocage bind though give  quite voluntary and often too cheerful be set aside in this court upon the  reason that the party be not a free agent and that the free operation of the  mind which be necessary to give validity to every act be want this appear from  the case of Curwen versus Millner June and from vern and the case of Twisleton  and Griffith hear before the Lord Cowper these case indeed be upon contract  where it may be say nothing be intend by way of gratuity but there be case  where bind mere voluntary and not find upon contract have be set aside as be  unconscionable vern salk vern in most of these case there be a hazard run by  the defendant the whole money must have be lose upon a contingency but here  the defendant run no hazard nor can he have any other loss than that of his  advice the case of Bosanquett ante versus Dashwood Nov be another very strong  authority that where advantage be take of either party circumstance and  necessity this court will relieve nor will the consideration move partly from  the wife vary the case for her declare that she will not trust the plaintiff  generosity but will bind he as fast as pen and ink can bind he and the husband  afterward accept the bind make it to be his own act ab beginning case tempt  Talbot Mr attorneygeneral and Mr solicitor general argue for the defendant  that there be many case where the court perhaps will not decree a performance  of the condition of a bind but yet upon application make by the obligor will  not set it aside that this case be very different from the case of bind give  by young heir or for marriage brocage where the whole rest upon contract but  nothing be intend by the way of gratuity as it be in the present case the  illegality of the consideration fraud accident will entitle to relieve here  but it be never yet say that a man poverty bare and mere without any other  ingredient will be a sufficient cause for set aside any voluntary contract he  may have enter into through his own carelessness and which the other party may  through want of christianity perhaps enforce a performance of here the pass  service do to the plaintiff by the defendant and expectation of future service  be the motive upon which the plaintiff give this bind and none of the case  cite will warrant the set aside a bind mere voluntary as this be the plaintiff  can be say to be other than a free agent only because he have a great mind to  recover the part of the estate which he apprehend to be his due which be the  only influence he be under at the time he enter into this bind the case of  Bosanquet versus Dashwood though one of the reason for the decree be the  unfair advantage that one party have take of the other necessity be very  different from this for though the statute do not go so far as to make the  party receive the usurious interest liable to refund yet have prohibit the  take beyond such a sum and avoid the contract the take it be a breach of the  statute and the actual receipt of the money will in a court of equity make he  liable to refund the wrong be the same whether the usurious interest have be  actual pay or not in the present case it be observable that the bind be never  put in suit nor case tempt Talbot payment of it demand until after the  plaintiff recovery of what he be sue for which take off the objection that he  may have lie in prison all his life whether he have prevail in his suit or not  Lord chancellor I have be a good deal doubtful in this case for as on the one  hand it be entire reasonable to leave people at liberty to dispose of their  property as they think fit so on the other hand it be reasonable to prevent  any imposition in such disposal and if here have be no imposition on the  plaintiff and that all his defence be his poverty or the inconveniency it may  be to he to pay this sum that will not be case tempt Talbot er p a ground for  relief but as this case be circumstance the plaintiff poverty be not to be  omit in the consideration of the transaction his circumstance be as mean as  can be imagine and no certainty that he shall be ever able to discharge any  part of this bind and yet he give a obligation for pound to be pay at all  event within the year a poor illiterate man who apply to the defendant and his  wife for aid in pursue his claim they answer that register can not be search  nor other thing do without money he thereupon reply that he have none but  desire the defendant to lie it down for he the cause go on and pen this suit  the defendant wife press for the money lie out whereupon the plaintiff declare  that for the service they have do and he hope they will continue he will give  a bind upon which the wife reply he may take what time he please for the  payment of the bind but at the same time again press for repayment of the  money lie out by her husband and her and then the bind be give so that here be  a plain contract between they and how can I consider it as a gratuity or  otherwise than as a contract now though a mere voluntary contract be not to be  set aside pure and simple because it be voluntary yet that differ wide from  the present case which be not intend as a case tempt Talbot bounty but as a  execution of a original contract for the service already do have a attorney  pen the suit take such a bind as this upon the same transaction will not the  court set it aside or will it suffer it to stand any far than as a security  for what be just and legal due the rule that a mischief be rather to be suffer  than a general inconvenience do not at all affect this case for it will be a  much great inconvenience to leave man under difficulty and distress open to  all the oppression that other people may please to make they undergo this be  the reason upon which the court relieve against bind give by young heir Waller  v dalt Chanc Cas barny v Beak Charles Cas barny v Pitt vern not v hill vern  Knott v Johnson vern wiseman v beak vern James v oades vern earl of Ardglasse  v Muschamp vern Bilt v price vern Lamplugh v smith vern Curwen v milner p will  in note Twisleton v Griffith p will earl of Chesterfield v Jansen atk and Ves  S c Barnardiston v Lingood atk sir will Stanhope v cope atk gwyne v Heaton bro  Charles Bep Heathoote v Paignon bro Charles Rep be case in which this court  have relieve against unconscionable bargain and cancel improvident contract  enter into by young heir see also Sanderson v glass atk Powell v knoll atk and  marriagebrocage bind and will not suffer any advantage to be take of the  extravagance and want of judgement in the one case and of the strong bias to  obtain what be desire in the other the only difficulty that arise with I be  whether the defendant have any share himself in the transaction and that where  fraud be pretend it must be full prove here indeed the husband be not present  when the bind be execute but still I think there be sufficient ground for  relief for here the wife be party to all the transaction in search register c  the contract for the bind be for their joint service and though she do not  press for the bind yet she press for what worry more strong videlicet the  repayment of the money which she and her husband have lie out at the time that  he be not worth a shilling and in the amid of the pursuit of his cause and  when this come to be couple with that other say of she that she will not trust  to his generosity but bind he as fast as pen ink and paper can bind he it make  it plain that it be obtain of the plaintiff when under force and necessity the  press for the repayment be almost as strong as if she have actual require the  bind and so decree the bind to stand as a security only for so much as have be  actual lie out with interest and leave the defendant at liberty to bring his  quantum to deserve at law for what he deserve for his pain and trouble Reg lib  fol case tempt Talbot er p