Crowe was the expectant heir to a legacy with a life tenant and in 1777 asked Ballard to sell his expectancy on his behalf. Ballard claimed to have sold to Toft for andpound;350, but had in fact bought the expectancy himself and advanced andpound;310 to Crowe. In 1780 the life tenant was dying and Crowe applied to Ballard to re-purchase the legacy. Ballard revealed he was the purchaser but was only prepared to re-sell the legacy if Crowe made a post-obit bond to pay him (Ballard) andpound;1,800 after the death of Crowe’s father. The bond falsely recited that it was given in consideration of a debt of andpound;900. Crowe’s father died in 1782 and Crowe gave Ballard a new bond for andpound;1,800 with 5% interest. He paid the interest on that bond until 1787 when he offered to pay the money originally due with interest if the bond were released. Ballard refused and brought an action on the bond whereupon Crowe filed a bill for delivery up of the bond on repayment of the money originally advanced. Sir John Scott S-G for Crowe said that the only argument that could be urged was that the 1782 bond and the subsequent payment of interest over a 4 year period were a ‘confirmation’ of the original transaction. Mr Mansfield for Ballard agreed saying:- ‘It is not now a question, what would be the proper justice between the parties, if it had stood upon the original transaction without anything intervening to alter or confirm it.’ His argument was that the 1782 bond was a new contract and not affected by Ballard’s original unconscionable conduct.
Held: Finding for Crowe, the court doubted whether the word ‘confirmation’ was correctly used but held, in any event, that the 1782 bond could not be such a ‘confirmation’. ‘. . . I have attended formerly to the reason of that word ‘confirmation’; and have been at a loss for the principle, upon which the Courts have spoken of such transactions as these, subsequent to the demand arising, as a confirmation. I know, if a gentleman of honour and fortune feels himself bound in honour by the circumstances of a bargain, however disadvantageous, not to rescind it, and, knowing the case, declares, when of full age, not under the terror of distress, that he thinks proper to give a new bond; the circumstance of an honorary engagement, attended with money actually advanced, is sufficient to maintain the possessor of the new bond. But if a man gives a new bond under an idea, that the old one may be enforced against him, at what time is that a confirmation? . . . What I go upon is, that the second bond was not given freely, but upon a consideration, that in his mind carried with it a value, it ought not, and was derived from a fraudulent consideration.’
References: (1790) 1 Ves Jun 214
Judges: Lord Thurlow LC
This case is cited by:
- Cited – Yorkshire Bank Plc v Tinsley CA 25-Jun-2004
The defendant’s husband had charged the matrimonial home on several occasions to the claimant. It was found that the first charges were affected by undue influence and could not be enforced. The defendant argued that the last charge which replaced . .
(,  EWCA Civ 816, Times 12-Aug-04,  3 All ER 463,  1 WLR 2380)
These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.199970