Sec 162

It is not to be supposed that long habits of submission will cease simultaneously with the technical cessation of the legal relation on which these habits were originally based. A ward, for instance, on reaching his majority, cannot, in most cases, throw off his sense of subordination to his guardian ; nor is a father's influence over a child likely to cease with the child's nominal emancipation. A trustee, also, upon throwing up his trust, may retain his influence. When once a fiduciary or advisory relation has existed, it will be so far presumed to continue, that, when a bargain is made peculiarly advantageous to the party in whom the confidence is reposed, the burden is on him to show that the transaction was fair.3 But when the Influence when established presumed to continue a Pollock, 3d ed. 570 ; Dent v. Bennett, 4 My. & Cr. 277 ; Smith v. Kay, influence has ceased to operate, an intelligent ratification binds.1

Martin, 1 Sandf. Ch. 569 ; see Tate v. Williamson, L. R. 1 Eq. 528, 2 Ch. 55 ; Baker v. Loader, L. R. 16 Eq. 49.

1 Turner, L. J., Rhodes v. Bate, L. R. 1 Ch. Ap. 257.

2 Supra, sec 159 ; Eakle v. Reynolds, 54 Md. 305 ; Wise v. Swartzwelder, 54 Md. 292.

In Taylor v. Johnston, 46 L. T. N. S. 219, where it appeared that an orphan girl, nearly of age, was living with a married female cousin, to whom on her death-bed she made an absolute gift of moneys drawn out from a banking account kept by the girl in her own name, it being proved that she was a person of strong will and independent character ; that others of her relatives had free access to her; and that she had had the advice of an old friend of her father's with regard to pecuniary matters ; it was held that no such fiduciary relationship existed as would invalidate the gift.

Sec 163

The presumption of continuance, however, applicable to this as well as to all other relationships,2 is not to be stretched so as to involve a presumption of unfairness in all dealings between a person imposing and a person accepting confidence. There is no such presumption recognized in law; and, as a matter of fact, by far the greater part of the dealings between persons imposing and persons accepting confidence are fair. Among persons who have been for a time intimately connected there is no business done without confidence imposed and accepted ; and, as a rule, the longer and tenderer the confidence, the more scrupulous the fairness of the dealings of the party in whom the confidence is reposed. All that the law says is, that, when a party in accepting confidence obtains an unequal advantage from the other party, the burden is on him to show that the bargain was made by the other intelligently and without undue pressure.3 In other words, if suit be brought on such a contract, the party suing must prove that the contract was made freely and intelligently.4 '• If a gift or contract made in favor of him who holds the position of influence is impeached by him who is subject to that influence, the courts of equity cast upon the former the burden of proving that the transaction was fairly conducted as if between strangers, that the weaker was not unduly impressed by the natural influence of the stronger, or the inexperienced overreached by him of more mature intelligence."5

Question one of burden of proof.

7 H. L. C. 750; and see Archer v. Hudson, 7 Beav. 551; Rhodes v. Bate, L. R. 1 Ch. 252 ; Grosvenor v. Sher-ratt, 28 Beav. 659.

1 Infra, sec 168.

2 See Wh. on Ev. sec 1285.

3 Gibson v. Jayes, 6 Ves. 266.

4 "Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence." Indian Evidence Act, cited Pollock, 525 ; Erlanger v. New Sombrero Phosphate Co., L. R. 3 App. Cas. 1218. As to ratification, see infra, sec 168.

5 Lord Penzance in Parfitt v. Lawless, L. R. 2 P. & D. 468.

"The court," as was said by James. L. J., in Kempson v. Ashbee (30 L. T. Rep. N. S. 749 ; L. R. 10 Ch. 15), " has endeavored to prevent persons subject to influence from being induced to enter into transactions without independent advice." 6. P. Rhodes v. Bate, L. R. 1 Ch. 252.