Kempson v Ashbee: CA 1874

Ashbee lent money to Sladden (the stepfather) in 1857 taking a promissory note from Miss Kempson, the stepdaughter, to repay andpound;450 with interest. Miss Kempson was 20 at the time and living with Sladden and her mother; she had initially refused to give such a bond but at length ‘consented, on account, as she stated, of Sladden’s ungovernable temper, and the many violent scenes . . . which she had to go through’. She signed the bond in the presence of Ashbee’s solicitor who said he had explained the nature of the bond and was not aware that she was under age. In 1859 and now of age she signed a second bond securing the payment of andpound;600 and interest alleged to be due for principal interest and costs in respect of the previous loan. In 1866 Ashbee obtained judgment against Sladden but agreed not to issue execution if he could get Miss Kempson to sign another bond for the whole amount due on the judgment. This time, now 29, she signed a bond for andpound;705 and interest. In 1872 Miss Kempson’s uncle offered to compound the matter but Ashbee refused and sued Miss Kempson, who filed a bill to set aside the bonds of both 1859 and 1866. Bacon V-C declared both bonds fraudulent as against Ashbee and restrained him from further prosecuting his action at law.
Held: The Court of Appeal in Chancery upheld that decision. The 1859 bond was clearly unenforceable but the court was prepared to proceed on the assumption that, in the absence of the 1859 bond, the 1866 bond might have been held not to have been given under undue influence: ‘The bond was given, as the Plaintiff’s evidence shews, under clear pressure. Here was a creditor saying he would insist on his rights against her and her step-father unless there was a new bond for the sum already due, with arrears of interest, and she was ignorant of the fact that she had only to apply to this Court to get the previous bond declared mere waste paper. Is it possible that this can be held to be a confirmation of the first bond? To constitute a confirmation there must be knowledge of the invalidity of the document. But here there was no knowledge of the invalidity. This bond was inseparably connected with the bond of 1859 . . . and therefore those who are interested under the bond of 1866 are unable to hold it.’


Lord Cairns LC, James and Mellish LJJ


(1874) LR 10 Ch App 15


England and Wales

Cited by:

CitedYorkshire 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 . .
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 13 May 2022; Ref: scu.199971