EDINBURGH: Printed for A. MILLAR, London, and A. KINCAID & J. BELL, Edinburgh. MDCCLXVII.


AN author, not more illustrious by birth than by genius, says, in a letter concerning enthusiasm, ‘"That he had so much need of some considerable presence or company to raise his thoughts on any occasion, that when alone he endeavoured to supply that want by fancying some great man of superior genius, whose ima­gin'd presence might inspire him with more than what he felt at ordinary hours."’ To judge from his Lordship's writings, this receipt must be a good one. It naturally ought to be so; and I imagine that I have more than once felt its enlivening influence. With respect to the first edition of this treatise in particular, I can affirm with great truth, that a great man of superior genius was ne­ver out of my view: Will Lord Mansfield relish this passage—How would he have expressed it—were my constant questions.

BUT though by this means I commanded more vigour of mind, and a keener exertion of thought, than I am capable of at ordinary hours; yet I had not courage to mention this to his Lordship, nor to the world. The subject I had undertaken was new: I could not hope to escape errors, perhaps gross ones; and the absurdity appear'd glaring, of acknowledging a sort of inspiration in a performance that might not exhibit the least spark of it.

No trouble has been declined upon the present edition; and yet that the work, even in its improved state, deserves his Lordship's patronage, I am far from being confident. But however that be, it is no longer in my power to conceal, that the ambition of gain­ing Lord Mansfield's approbation has been my chief support in this work. Never to reveal that secret would be to border upon ingrati­tude. Will your Lordship permit me to subscribe myself,

Your zealous friend, HENRY HOME.


AN author who exerts his talents and industry upon a new subject, without hope of assistance from others, is too apt to flatter him­self upon his performance; because he finds no other work of the kind to humble him by comparison. The attempt to digest equity into a regular system, was not only new, but difficult; and for these reasons the author hopes he may be excused for not discovering more early several imperfec­tions in the first edition of this book. These imperfections, when discover­ed, gave him the greater pain, because they concern chiefly the arrangement, in which every mistake must be attended with some degree of obscuri­ty. No labour has been spared to improve the present edition: and yet, after all his endeavours, the author dare not hope that every imperfection is cured: that the arrangement is considerably improved, is all that with assurance he can take upon him to pronounce.

For an interim gratification of the reader's curiosity before entering upon the work, a few particulars shall here be mentioned. The defects of com­mon law seemed to be so distinct from its excesses, as to make it proper to handle these articles separately; which accordingly is done in the first edi­tion. But almost as soon as the printing was finished, it occurred to the author as evidence of an unskilful distribution, that he had been obliged to handle the same subject in different parts of the book, or at least to refer from one part to another. This led him to reflect, that these defects and excesses proceed both of them equally from the very constitution of a court of common law, which is confined within narrow bounds in its power of doing justice; and therefore it now appeared evident that they ought to be han­dled promiscuously as so many examples of imperfection in common law, which ought to be supplied by a court of equity. So evident is this, that even in the same case we find common law sometimes defective, sometimes excessive, according to occasional or accidental circumstances, without any fundamental difference. For example, many claims, good at common law, are reprobated in equity because of some incident wrong that comes not [Page vi] under the cognisance of common law. A claim of this kind must be sustain­ed by a court of common law, which cannot regard the incident wrong; and in such instances common law is excessive, by transgressing the bounds of justice. On the other hand, where a claim for reparation is brought by the person who suffered the wrong, a court of common law can give no re­dress; and in such instances common law is defective. And yet the ratio decidendi is precisely the same in both cases, viz. the limited power of a court of common law.

The transgression of a deed or covenant is a wrong that ought to be dis­tinguished from a wrong that misleads a man to make a covenant or to grant a deed. The former only belongs to the chapter Of Covenants; the latter, to the chapter Of the powers of a court of equity to protect individuals from injuries. For example, a man is fraudulently induced to enter into a contract: the reparation of this wrong, which is antecedent to the contract, cannot arise from the contract; and for that reason it is put under the chapter last mentioned.

Every quaestio voluntatis must arise from imperfection or obscurity in the words by which will is declared: therefore all such questions ought to come under the first section of the chapter Of deeds and covenants.

In a strict review of this book for a new edition, the necessary of refer­ring frequently to other books for the principles of morality, indicated a de­fective performance. To supply that defect, and to make the work com­plete in itself, there is added to this edition a preliminary discourse, of which the purpose is, to open up briefly and distinctly the fountains of justice and equity, from whence are derived all the equitable rules employ'd in this work; avoiding carefully to tease the reader with controversy, or any criticisms upon former writers. The author flatters himself that this part of the work will give satisfaction; and supposing it to be well executed, it cannot fail of being both pleasant and useful.


  • CHAP. I. The moral sense, 3
  • CHAP. II. Laws of nature that regulate our conduct in society, 12
  • CHAP. III. Principles of duty and of benevolence, 19
  • CHAP. IV. Rewards and punishments, 21
  • CHAP. V. Reparation, 25
  • CHAP. VI. The laws of society considered with respect to their final causes, 30
  • Powers of a court of equity derived from the principle of justice,—55
  • PART I. Powers of a court of equity to remedy the imperfections of common law with respect to pecuniary interest, by supply­ing what is defective, and correcting what is wrong,—56
    • CHAP. I. Powers of a court of equity to remedy what is imperfect in com­mon law with respect to the protecting individuals from injuries, 56
      • SECT. 1. Harm done by a man in prosecuting a right or privilege, 57
      • SECT. 2. Harm done by a person who has not in view to prosecute any right or privilege, 62
      • SECT. 3. Undue influence employed for tempting or overawing per­sons to act knowingly against their interest, 64
        • Art. 1. Where a man, yielding to a temptation, acts know­ingly against his interest, 65
        • Art. 2. Where a man is overawed to act knowingly against his interest, 66
      • SECT. 4. Fraud, deceit, or other artificial means, employ'd for ma­king a man act unknowingly against his interest, 73
      • SECT. 5. Reparation to which persons are intitled who are harmed in their rights or privileges, 77
    • CHAP. II. Powers of a court of equity to remedy what is imperfect in com­mon law with respect to protecting the weak of mind from harming themselves by unequal bargains and irrational deeds, 80
    • CHAP. III. Powers of a court of equity to remedy what is imperfect in com­mon law with respect to the natural duty of benevolence, 83
      • [Page viii]CHAP. SECT. 1. Connections that make benevolence a duty when not pre­judicial to our interest, Pag. 85
      • SECT. 2. Connections that make benevolence a duty even against our interest, 95
        • Art. 1. Connections that intitle a man to have his loss made up out of our gain, 95
        • Art. 2. Connections that intitle a man who is not a loser to partake of our gain, 108
        • Art. 3. Connections that intitle one who is a loser to a recom­pence from one who is not a gainer, 113
    • CHAP. IV. Powers of a court of equity to remedy what is imperfect in com­mon law with respect to deeds and covenants, 118
      • SECT. 1. Where the words expressing will or consent are imperfect, 122
        • Art. 1. Where the words leave us uncertain about will, 122
        • Art. 2. Where the words fall short of will, 124
        • Art. 3. Where the words go beyond will, 127
      • SECT. 2. Operation of deeds and covenants beyond what is authori­sed by declared will, 130
      • SECT. 3. How far defects in a deed or covenant can be supplied, 132
        • Art. 1. Where essential articles are by oversight omitted, 133
        • Art. 2. Where the intention is to settle a sum upon a person, less or more in different events, and the event that happens is by oversight omitted, 133
        • Art. 3. Where a settlement is made in the prospect of one e­vent only, no other being foreseen, and instead of that event another happens, 136
      • SECT. 4. A deed or covenant considered as a mean to an end, 139
        • Art. 1. Where, by mistake, the means provided tend not to bring about the desired end, 140
        • Art. 2. Where an unforeseen accident renders ineffectual the means provided, 145
        • Art. 3. Where the means provided tend by an unforeseen acci­dent to disappoint the desired end, 148
        • Art. 4. The deed or covenant itself being voided by an unfore­seen accident, can other means be supplied for ac­complishing the desired end, 149
        • Art. 5. Where the means reach inadvertently beyond the de­sired end, 151
      • SECT. 5. Where there is a failure in performance, 157
        • Art. 1. Where the failure is total, 157
        • Art. 2. Where the failure is partial only, 161
      • SECT. 6. Indirect means used to evade performance, 163
      • [Page ix]CHAP. SECT. 7. Repentance, in what contracts permitted, and to whom, 165
      • SECT. 8. How far a deed or covenant, void at common law, can be supported in equity, 166
      • SECT. 9. Whether any supervening accident can in equity void or render ineffectual a contract originally unexceptionable, 171
      • SECT. 10. Where a deed or covenant is occasioned by error, 173
    • CHAP. V. Powers of a court of equity to remedy what is imperfect in com­mon law with respect to statutes, 177
      • SECT. 1. Where the will of the legislature is not justly expressed in the statute, 187
        • Art. 1. Where the words are ambiguous, 187
        • Art. 2. Where they fall short of will, 188
        • Art. 3. Where they go beyond will, 188
      • SECT. 2. Where the means enacted fall short of the end purposed by the legislature, 189
      • SECT. 3. Where the means enacted reach unwarily beyond the end purposed by the legislature, 196
    • CHAP. VI. Powers of a court of equity to remedy what is imperfect in common law with respect to transactions between debtor and creditor, 201
      • SECT. 1. Injustice of common law with respect to compensation, 201
      • SECT. 2. Injustice of common law with respect to indefinite pay­ment, 207
      • SECT. 3. Injustice of common law with respect to rent levied inde­finitely, 211
    • CHAP. VII. Powers of a court of equity to remedy what is imperfect in com­mon law with respect to legal execution, 215
      • SECT. 1. Where the common law is defective, 215
        • Art. 1. Subjects that cannot be attached by any execution of common law, 216
        • Art. 2. Circumstances where even common subjects are with­drawn from these executions, 216
        • Art. 3. These executions are in some cases imperfect, 219
        • Art. 4. They serve only to make debts effectual, and give no aid to other claims, 220
      • SECT. 2. Where the common law with respect to execution is op­pressive or unjust, 221
      • Appendix to the VIIth chapter, 226
    • CHAP. VIII. Powers of a court of equity to inflict punishment, and to miti­gate it, 229
  • PART II. Powers of a court of equity to remedy the imper­fection of common law with respect to matters of justice that are not pecuniary,—237
  • [Page x]Powers of a court of equity founded on the principle of utility,—Pag. 249
  • CHAP. I. Acts contra bonos mores repressed, 250
  • CHAP. II. Acts and covenants, in themselves innocent, prohibited in equity, because of their tendency to hurt society, 251
  • CHAP. III. Certain claims, in themselves just, and therefore authorised by common law, rendered ineffectual by equity, because of their bad tendency, 255
  • CHAP. IV. Forms of the common law dispensed with in order to abridge law-suits, 256
  • CHAP. V. Bona fide payment, 259
  • CHAP. VI. Interposition of a court of equity in favour even of a single per­son to prevent mischief, 260
  • CHAP. VII. Statutes preventive of wrong or mischief extended by a court of equity, 261
  • CONCLUSION of Book II.—266
  • Application of the principles of equity and utility to se­veral important subjects,—270
  • CHAP. I. What equity rules with respect to rents levied upon an erroneous title of property, 270
  • CHAP. II. Powers of a court of equity with respect to a conventional pe­nalty, 277
  • CHAP. III. What effect, with respect to heirs, has the death of the obligee or legatee before or after the term of payment, 284
  • CHAP. IV. Arrestment and process of forthcoming, 288
  • CHAP. V. Powers of a court of equity with relation to bankrupts, 298
  • CHAP. VI. Powers and faculties, 325
  • CHAP. VII. Of the power which officers of the law have to act extra territo­rium, 340
  • CHAP. VIII. Jurisdiction of the court of session with respect to foreign mat­ters, 345
    • SECT. 1. Actions strictly personal founded on foreign covenants, deeds, or facts, 349
    • SECT. 2. Foreign covenants and deeds respecting land, 353
    • SECT. 3. Foreign covenants and deeds respecting moveables, 355
    • SECT. 4. Foreign covenants and deeds respecting debts, 358
    • SECT. 5. Foreign evidence, 361
    • SECT. 6. What effect is given to foreign statutes and decrees, 363

EXPLANATION of some Scotch law terms used in this work.

Adjudication, is a judicial conveyance of the debtor's land for the creditor's security and payment. It corresponds to the English Elegit.

Arrestment, defined, book 3. chap. 4.

Cautioner, a surety for a debt.

Cedent, assignor.

Contravention. An act of contravention signifies the breaking through any restraint imposed by deed, by covenant, or by a court.

Decree of forthcoming, defined, book 3. chap. 4.

Fiar, he that has the fee or feu; and the proprietor is termed fiar, in contradistinction to the liferenter.

Gratuitous, see Voluntary.

Heritor, a proprietor of land.

Inhibition, defined, book 3. chap. 4.

Lesion, loss, damage.

Pursuer, plaintiff.

Propone. To propone a defence is to state or move a defence.

Reduction, is a process for voiding or setting aside any consensual or judicial right.

Tercer, a widow that possesses the third part of her husband's land as her legal jointure.

Voluntary, in the law of Scotland bears its proper sense as opposed to involuntary. A deed in the English law is said to be voluntary when it is granted without a valuable consideration. In this sense it is the same with gratuitous in our law.

Wadset, answers to a mortgage in the English law. A proper wad­set is where the creditor in possession of the land takes the rents in place of the interest of the sum lent. An improper wadset is where the rents are imputed in payment, first of the interest, and next of the capital.

Writer, scrivener.


Page 30. instead of CHAP. V. read CHAP. VI.


PRELIMINARY DISCOURSE; BEING, An investigation of the Moral Laws of Society.

THE science of morality hath for its subject, human actions, with their effects; and its end or purpose is, to regulate these actions.

To act by instinct signifies, to act by blind impulse, without ha­ving any end in view. The brute creatures act generally by instinct: the instinct of hunger prompts them to eat, and of cold to take shelter, without considering what these actions may produce. The same must be the condition of infants: for infants are not capable of any consideration: they apply to the nipple, without foreseeing that this action will relieve them from hunger; and they cry when pained, without having any view of procuring relief. But as soon as our ripened faculties unfold to us the connection between our ac­tions and their effects, then it is that we begin to act with an inten­tion to produce certain effects; and our actions, in that case, are means employ'd to bring about the effects intended.

Intention and will, though generally reckoned synonymous terms, signify different operations of the mind: will is relative to the exter­nal action; for we never act without a will to act: intention is rela­tive to the effect; for we act in order to bring about the effect in­tended. It is my intention, for example, to relieve a certain person from distress by giving money: as soon as I see that person, it is my will to deliver the money: the external act of delivery follows: and the person is relieved; which is the effect intended.

[Page 2] Some effects proceed necessarily from the action. A wound is an effect necessarily connected with the action of stabbing a man with a sharp weapon: death is the necessary effect of throwing a person downward from the battlements of a high tower. Some effects are probable only: I labour, for example, in order to provide for my family; fight for my country, in order to repel its enemies; take physic, in order to restore my health. In such cases, the event in­tended does not necessarily nor always follow.

A man, when he wills to act, must at the same time intend to produce the effect that he knows to be necessarily connected with the action. But where the effect is probable only, a man may proceed to act without intending to produce the effect that follows. For ex­ample, a stone I throw at random into the market-place, may wound a man without my intending that effect.

Instinctive actions, from their very definition, exclude intention: actions that necessarily produce their effects, must imply intention: effects that are probable only, not necessary, are sometimes intended, sometimes not.

A right and a wrong, in such actions as are done intentionally to produce some effect, are universally acknowledged; and yet philoso­phers have been much difficulted to assign the cause of this eminent distinction. The various opinions that have been entertained about it, would be a delicate historical morsel; but come not within the com­pass of this short inquiry. I shall only observe, negatively, that the science of morals cannot be founded on any truths that may be dis­covered by reasoning: which will thus appear. As the faculty of reason is confined to the investigation of unknown truths by means of truths that are known, it is clear, that in no science can we even begin to reason, till we be provided with some data to found our rea­sonings upon: even in mathematics, there are certain principles or axioms perceived intuitively to be true, upon which all its demon­strations are founded. Reason is indeed of great use in morality, as well as in other sciences; but morality, like mathematics, is and must be provided with certain axioms or intuitive propositions, with­out which we cannot make a single step in our reasonings upon that subject; and to trace these with care and caution is the chief pur­pose of the present inquiry.

CHAP. I. The Moral Sense.

WHEN we reflect upon the different branches of science, it might seem, that of all subjects human nature should be the best understood; because every man has daily opportunities to study it in his own passions, and in his own actions. But human nature, an interesting subject, is seldom left to the cool investigations of philoso­phy. Writers of a sweet disposition, inflamed with a warm imagi­nation, compose man mostly or wholly of benevolent principles: o­thers, of a cold temperament and narrow views, bring him down to be an animal entirely selfish. These systems are equally distant from truth: man is of a complex nature, endued with various prin­ciples, some selfish some social; and it is highly expedient that man should be so framed, in order to act the part that is allotted him in this life. The unhappy progress of selfishness, especially among commercial nations, is a favourite topic of declamation; and facts are accumulated without end to inforce that topic. It would be no difficult task to produce instances, not less numerous, of benevo­lence, generosity, and disinterestedness. In the midst of these oppo­site instances, what can any sensible person fairly conclude, but that the social and selfish principles are, by divine wisdom, so blended as to fit man for his present state? But supposing selfishness to pre­vail in action, it certainly prevails not in sentiment, nor in affection: all men equally conspire to put a high estimation upon generosity, benevolence, and other social qualities; while even the most selfish are disgusted with selfishness in others, and can scarce be reconciled to it in themselves. Another fact, equally worthy of attention, pro­ceeds from the same cause with the former. Laying aside particular prejudices arising from love or hatred, good fortune happening to any one is agreeable to all, and bad fortune happening to any one is disagreeable to all. Hence effects or events, whether produced by the operation of the laws of matter, or by the actions of self-motive beings, may be distinguished into three kinds, viz. agreeable, disa­greeable, and indifferent. Beneficial effects or events are agreeable: hurtful effects or events are disagreeable: and those that are neither beneficial nor hurtful, are indifferent.

These preliminaries lead directly to the true foundation of mora­lity, [Page 4] which foundation is discovered upon taking under consideration effects or events produced by human actions. An agreeable effect or event produced intentionally by acting, is perceived by all to be good a: a disagreeable effect or event produced intentionally by act­ing, is perceived by all to be ill: and an indifferent effect or event is not in our perception either good or ill. These perceptions of good and of ill are the primary moral perceptions, with which, as will be seen afterward, every other moral perception is intimately con­nected.

In an attempt to investigate the true foundation of morality, an effect or event, being the end for which we act, presents itself first to the mind as its capital object: an action is only a mean employ'd to produce some effect or event, and means are always subordinate to the end. For this reason, I thought it necessary to vary from other writers upon moral philosophy, who begin with actions as the capi­tal object, without giving due attention to the ends for which we act.

Good and ill, like agreeable and disagreeable, bitter and sweet, hard and soft, are simple qualities, incapable of a definition; and, like these, and all other qualities, are objects of perception, independ­ent of consequences, and independent of reasoning or reflection. I illustrate this doctrine by the following examples: We require no ar­gument to prove, that children of the poor bred to useful employ­ments by means of a charitable endowment, an infant rescued from the jaws of a lion, a sick person restored to health, the hungry fed, and the naked cloathed, are good effects; they are perceived to be such intuitively: an argument is as little necessary to prove, that an old man abandoned to poverty by his favourite son in opulent cir­cumstances, a virtuous young woman corrupted by artifice, are ill effects; and that breach of engagement, and harm done to one who dreads no harm from us, are equally so: these effects are perceived intuitively to be ill.

Next as to actions considered as means productive of effects. To the qualities of good and ill in effects, correspond the qualities of right and wrong in actions: An agreeable effect produced intentional­ly, is perceived to be good; and the action by which it is produced, is perceived to be right: a disagreeable effect produced intentionally [Page 5] is perceived to be ill; and the action by which it is produced, is perceived to be wrong a. And as it will be seen afterward, that some effects are perceived to be ill without being intended; it will also be seen, that the actions by which such effects are produced, are perceived to be wrong.

An action is perceived to be right or wrong according to the ef­fect intended, whether the effect follow or not. Thus, if to save my friend from being drowned, I plunge into a river, the action is right though I come too late: and if I aim a stroke at a man be­hind his back, the action is wrong though I happen not to touch him.

It holds in actions as in effects: good effects are a species of a­greeable effects, and right actions a species of agreeable actions: ill effects are a species of disagreeable effects, and wrong actions a species of disagreeable actions.

Thus, right and wrong, like good and ill, and all other qualities, are objects of perception or intuition; and supposing them hid from our perception, an attempt to discover them by reasoning would be absurd; not less so, than such an attempt with respect to beauty or co­lour, or with respect to the external objects to which these qualities belong.

For the sake of perspicuity, the foregoing observations are confi­ned to the simplest case, that of an effect or event produced inten­tionally. When we afterward descend to particulars, there will be occasion to show, first, That if in acting we foresee the probability of a disagreeable effect, though without intending it, the effect in that case is perceived to be ill, and the action to be wrong; but not in such a degree as when intended: and, next, That if the disagree­able effect, though not foreseen, might have been foreseen, it is also perceived to be ill, and the action wrong, though in a still lower degree.

As instinctive actions are caused by blind instinct, without the least view to consequences, they are not perceived to be right or [Page 6] wrong, but indifferent: and the effects produced by them may be agreeable or disagreeable; but they are not perceived to be good or ill; they are also indifferent.

Right actions are distinguishable into two kinds, viz. what ought to be done, and what may be done or left undone. Wrong actions are all of one sort, viz. what ought not to be done. Right actions that may be done or left undone, are, from our very conception of them, a matter of choice: they are right when done; but it is not a wrong to leave them undone. Thus, to remit a just debt for the sake of a growing family; to yield a subject in controversy, rather than go to law with a neighbour; generously to return good for ill, are right actions, universally approved: yet every man is sensible, that such actions are left to his free will, and that he is not bound to per­form any of them.

Actions that ought to be done, as well as actions that ought not to be done, merit peculiar attention; because they give occasion to the moral terms duty and obligation; which come next in order. To say that an action ought to be done, means that we have no liberty nor choice, but are necessarily tied or obliged to perform: and to say that an action ought not to be done, means that we are necessarily restrained from doing it. Though this necessity be moral only, not physical; yet we conceive ourselves deprived by it of liberty and choice, and bound to act, or to forbear acting, in opposition to eve­ry other motive. The necessity here described is termed duty: the abstaining from harming the innocent is a proper example; which the moral sense makes an indispensable duty, without leaving a single article of it to our own free will.

If I be bound in duty to perform or to forbear any particular action, there must be a title or right in some person to exact that duty from me; and accordingly a duty or obligation necessarily implies a title or right. Thus, the duty of abstaining from mischief implies a right in others to be secured against mischief: the man who does an injury, perceives that he has done wrong by violating the right of the person injured; and that person hath a perception of suffering wrong by having his right violated.

Our duty is two-fold; duty to others, and duty to ourselves. With respect to others, an action that we ought to do is termed just; an action that we ought not to do is termed unjust; and the omission of what we ought to do is also termed unjust. With respect to ourselves, an action that we ought to do is termed proper; and an action that [Page 7] we ought not to do, as well as the omission of what we ought to do, are termed improper.

Thus, right, signifying a quality of certain actions, is a genus, of which just and proper are species: and wrong, signifying a quality of other actions, is a genus, of which unjust and improper are species.

The sense by which we perceive the qualities of good and ill in ef­fects▪ of right and wrong in actions, and the other moral qualities mentioned and to be mentioned, is termed the MORAL SENSE or CONSCIENCE a.

There is no cause for doubting the existence of the moral sense, more than for doubting the existence of the sense of beauty, of the sense of seeing, of hearing, or of any other sense. In fact, the per­ception of right and wrong as qualities of actions, is not less distinct and clear than that of beauty, of colour, or of any other quality; and as every perception is an act of sense, the sense of beauty is not with greater certainty evinced from the perception of beauty, than the moral sense is from the perception of right and wrong.

This is the corner-stone of morality: for, abstracting from the moral sense, the qualities of good and ill in effects, and of right and wrong in actions, would be altogether inexplicable. We find this sense distributed among individuals in different degrees of perfec­tion: but there perhaps never existed any one above the condition of an idiot, who possessed it not in some degree; and were any man entirely destitute of it, the terms right and wrong would to him be not less unintelligible than the term colour is to one born blind.

That every individual is endued with a sense of right and wrong, more or less distinct, will readily be granted; but whether there be among men what may be termed a COMMON SENSE of right and wrong, producing uniformity of opinion as to what actions are right and what wrong, is not so evident. There appears nothing absurd in supposing the opinions of men about right and wrong to be as various as their faces; and the history of mankind leads us to su­spect, that this supposition is not destitute of foundation. For from [Page 8] that history it appears, that among different nations, and even in the same nation at different periods, the opinions publicly espoused with regard to right and wrong are extremely various; that among some nations it was held lawful for a man to sell his children as slaves, and in their infancy to abandon them to wild beasts; that it was held equally lawful to punish children, even capitally, for the crime of their parent; that the murdering an enemy in cold blood, was once a common practice; that human sacrifices, impious not less than immoral according to our notions, were of old universal; that even in later times, it has been held meritorious to inflict cruel torments for the slightest deviations from the religious creed of the plurality; and that among the most enlightened nations, there are con­siderable differences with respect to the rules of morality.

These facts, however well founded, tend not to disprove the reality of a common sense as to morals: they only evince, that the moral sense has not been equally perfect at all times, and in all countries: which is not surprising, being the case of all our more refined senses and faculties; witness, in particular, the sense of beauty, of elegance, of propriety. And with regard to this point, the following observa­tion may give satisfaction. In the order of Providence, the progress of our species toward perfection resembles that of an individual: we may observe an infancy in both; and in both a gradual pro­gress toward maturity: nor is the resemblance the less perfect, that certain tribes, like certain individuals, ripen faster than others. The savage state is the infancy of man; during which the more delicate senses lie dormant, abandoning nations to the authority of custom, of imitation, and of passion, without any just taste of morals more than of the fine arts. But nations, like individuals, ripen gradual­ly, and acquire in time a refined taste in morals, as well as in the fine arts; after which we find great uniformity of opinion about the rules of right and wrong, with few exceptions but what may proceed from imbecillity, or corrupted education. There may be found, it is true, even in the most enlightened ages, some men who have singu­lar notions upon some points of morality; and there may be found the like singularity upon many other subjects: which affords no argu­ment against a common sense or standard of right and wrong, more than a monster doth against the standard that regulates our external form, nor more than an exception doth against the truth of a gene­ral proposition.

That there is in mankind a common sense of what is right and wrong, and an uniformity of opinion, is a matter of fact, of which [Page 9] the only infallible proof is observation and experience: and to that proof I appeal; entering only one caveat, That, for the reason above given, the inquiry be confined to nations of polished manners. In the mean time I take the liberty to suggest an argument from ana­logy, That if there be great uniformity among the different tribes of men in seeing and hearing, in truth and falsehood, in pleasure and pain, &c. what cause can we have for suspecting that right and wrong are an exception from the general rule? Whatever minute differences there may be to distinguish one person from another; yet in the general principles that constitute our nature, internal and ex­ternal, there is wonderful uniformity.

That man is by nature a social being, is evident from many of his principles and faculties, calculated chiefly or solely to qualify him for the social state. This is eminently the case of the moral sense; the very purpose of which is, to regulate our conduct in so­ciety. That the uniformity of this sense among the different tribes of men, intitling it to be termed the common sense of mankind, must be calculated for the further improvement of society, is highly pro­bable; and yet does not appear altogether so clear at first view. For may it not be urged, that we are bound notwithstanding to re­gulate our conduct by our own sense or private conviction; and that to act otherwise would be to act against conscience? This ar­gument is at least plausible; and if it hold true, society, it must be yielded, cannot be benefited by a standard that is not calculated to regulate any branch of our conduct. But the Almighty leaves no imperfection in his works: he intended man for society; he endued him with a sense of right and wrong; he made the perceptions of that sense uniform in all men; and to complete us for society, he has moulded our nature so admirably, as that even the man who has the most correct sense of morals, is not better qualified for society, than they are who deviate the farthest from it. The contrivance, simple and beautiful, is, to bind us by a law in our nature to regu­late our conduct by the common sense of mankind, even in opposi­tion to what otherwise would be our own sense or private conviction. And that this truly is the system of nature, I endeavour to make out as follows.

We have an innate sense or conviction of a common nature, not only in our own species, but in every species of animals: and our conviction is verified by experience; for there appears a remarkable uniformity among creatures of the same kind, and a dissormity, not less remarkable, among creatures of different kinds. This common [Page 10] nature is conceived to be a model or standard for each individual of the kind. Hence it is a matter of wonder, to find an individual deviating from the common nature of the species, whether in its in­ternal or external structure: a child born with aversion to its mo­ther's milk, is a wonder, not less than if born without a mouth, or with more than one.

Secondly, With respect to the common nature of man in particu­lar, we have an innate conviction, that it is invariable not less than universal; that it will be the same hereafter as at present, and as it was in time past; the same among all nations, and in all corners of the earth. Nor are we deceived; because giving allowance for the difference of culture, and gradual refinement of manners, the fact cor­responds to our conviction.

Thirdly, We have an innate conviction, that this common nature or standard is PERFECT and RIGHT; and that every individual OUGHT to be framed according to it. Every remarkable devia­tion from the standard, makes an impression upon us of imper­fection, irregularity, or disorder; and raises a painful emotion: mon­strous births, exciting the curiosity of a philosopher, fail not at the same time to excite aversion in a high degree.

This conviction of perfection in the common nature of man, reaches every branch of his nature; and particularly his sense of the morality and immorality of actions, termed the moral sense. This sense accordingly, considered as a branch of the common nature of man, is admitted by all to be perfect; and, consequently, to be the ultimate and unerring standard of morals; to which all are bound to submit, even in opposition to their own private sense of right and wrong. At the same time, as this standard, through infirmity or prejudice, is not conspicuous to every individual, we find instances, not few in number, of persons deluded into erroneous moral opi­nions, by mistaking a false standard for that of nature. And hence, with respect to individuals, a distinction between a right and a wrong sense in morals; a distinction which, from the conviction of a moral standard, is obvious to the meanest capacity; but of which distinc­tion we could not otherwise have the slightest conception.

The final cause of this branch of our constitution is illustrious. Were there no standard of right and wrong for determining our end­less controversies about matters of interest, the strong would have recourse to open violence; the weak to cunning, deceit, and treache­ry; and society would be altogether intolerable. Courts of law could afford no resource: for without a standard of morals, their de­cisions [Page 11] must be arbitrary, and consequently have no authority nor influence.

Happy it is for men, that in all their disputes about right and wrong, they have this standard to appeal to: it is necessary, that in society the actions of individuals be uniform with respect to right and wrong; and in order to uniformity of action, it is necessary that their perceptions of right and wrong be uniform: to produce such u­niformity, a standard of morals is indispensable; which is daily ap­plied by judges with great success.

To complete this theory, it must be added, that, independent of the author's opinion, it is the goodness or illness of the effect intend­ed which qualifies an action to be right or wrong. Thus, when a man impelled by friendship or pity, rescues from the flames one con­demned to be burnt for heresy, the action is right, even though the man, convinced that heretics ought to be destroy'd, be of opinion that the action is wrong.

But with respect to the author of the action, nature leads us to judge of him by a different rule. He is approved, and held to be INNOCENT, when he does what he himself thinks right: he is dis­approved, and held to be GUILTY, when he does what he himself thinks wrong. Thus, to assassinate an Atheist for the sake of religion, is a wrong action: and yet the enthusiast who commits that wrong may be innocent: and one is guilty who, contrary to conscience, eats meat in Lent, though the action is not wrong. Upon the whole, an action is perceived to be right or wrong independent of the au­thor's own opinion: but he is approved or disapproved, held to be innocent or guilty, according to his own opinion.

We learn from experience, as above, that every right action is a­greeable, and every wrong action disagreeable. But the author ap­pears to us in a different light: he is agreeable when he acts accor­ding to conscience, though the action be wrong; and disagreeable when he acts against conscience, though the action be right. He is, however, more agreeable, when he does a right action according to conscience; and more disagreeable, when he does a wrong action a­gainst conscience▪ in which light he must always appear to himself; for when he acts according to conscience, he must think the action right; and when he acts against conscience, he must think the action wrong.

CHAP. II. Laws of Nature that regulate our conduct in Society.

HAVING thus established a standard for morals, which lays a solid foundation for the science of morality, the regular pro­gress is, to investigate the laws that are derived from this standard: and these laws may be shortly defined, ‘"Rules of conduct that are declared to be such by the common sense of mankind, which is the moral standard."’

When we endeavour to investigate the laws of nature, those regu­larly take the lead that concern our duty: and as duty is of two kinds, duty to others, and duty to ourselves, we begin with the for­mer. Of the duties we owe to others, some tend to action, some to restraint; and before entering into particulars, it may be proper to present them in a general view. There is one duty so general as to comprehend all mankind for its object, all at least that are inno­cent; and that is the duty of forbearing to hurt others, whether externally or internally. A man may be hurt externally in his goods, in his person and relations, and in his reputation. Hence the laws, Thou must not steal, Thou must not defraud others, Thou must not kill nor wound, Thou must not be guilty of defamation.

A man may be hurt internally by an action that occasions to him distress of mind; and he may be hurt internally by receiving false notions of men and things. Therefore in dealing or conversing with others, conscience dictates that we ought not to treat them dis­respectfully; that we ought not causelessly to alienate their affections from others, nor the affections of others from them; and, in general, that we ought to forbear whatever may tend to break their peace of mind, or tend to unqualify them for being good men and good ci­tizens.

Our active duties regard particular persons, such as our relations, our friends, our benefactors, our masters, our servants, &c.; and these duties are more or less extensive, in proportion to the degree of connection. We ought to honour and obey our parents; be affec­tionate to our children, and endeavour to establish them in the world with all advantages, internal and external: we ought to be faithful to our friends, grateful to our benefactors, submissive to our masters, and kind to our servants: and, according to our ability, [Page 13] we ought to relieve the distresses of each of them. To be obliged to do good to others beyond these bounds, must depend on positive en­gagement: for, as will appear afterward, universal benevolence is a virtue only, not a duty.

Being prepared for particulars by this general sketch, the first duty that comes in view, is that which restrains us from harming the in­nocent; and to it corresponds a right in the innocent to be safe from harm. This is the great law preparatory to society; because without it society could never have existed. In this duty, the inflexibility of the moral sense is peculiarly remarkable; for it dictates, that we ought to submit to any distress, even death itself, rather than procure our own safety by laying violent hands upon an innocent person. And we are under the same restraint with respect to the property of another; for robbery and theft are never upon any pretext indulged. It is true, that a man in extreme hunger may lawfully take food where he can find it; and may freely lay hold of his neighbour's horse, to carry him from an enemy who threatens death. But the reason is, that the proprietor's consent may justly be presumed in such cases, upon our submitting to make up the loss: it is the duty of the proprietor, as a fellow-creature, to assist me in distress; and I may lawfully take what he ought to offer, and what I reason­ably presume he would offer were he present. For the same reason, if in a storm my ship be drove among the anchor-ropes of another ship, which ropes I am forc'd to cut in order to get free, the act is lawful, provided I be willing to pay the value. This provision is e­quitable: for if, on the one hand, my neighbour be bound to aid me in distress, reason and conscience bind me, on the other, to make up his loss, as far as in my power a.

[Page 14] The prohibition of hurting others internally, is perhaps not essen­tial to the formation of societies, because the transgression of that law doth not much alarm plain people: but among people of man­ners and refined sentiments, the mind is susceptible of more grievous wounds than the body; and therefore without that law a polished society could have no long endurance.

By adultery mischief is done both external and internal. Each sex is so constituted as to require strict fidelity and attachment in their mates; and the breach of this fidelity is the greatest external mischief that can befal them. It is also a hurt internally, by break­ing their peace of mind. It has indeed been urged, That this hurt will be avoided if the adultery be kept secret; and therefore that there can be no crime where there is no discovery. But they who reason thus do not advert, that to declare secret adultery to be law­ful is in effect to overturn every foundation of mutual trust and fide­lity in the married state a.

Veracity is commonly ranked among the active duties: but erro­neously; for if a man be not bound to speak, he cannot be bound to speak truth. It is therefore only a restraining duty, importing that we ought not to deceive others by affirming what is not true. Among the many corresponding principles in the human mind, a principle of veracity b, and a principle that leads us to believe what is said to us, are two: without the latter, the former would be an useless principle; and without the former, the latter would be a dangerous one, laying us open to fraud and deceit. The moral sense accordingly dictates, that we ought to adhere strictly to truth, without regard to consequences.

From this it must not be inferred, that we are bound to explain our thoughts when the truth is demanded from us by unlawful force. Words uttered voluntarily are naturally relied on as expressing the speaker's mind; and if he falsify their meaning, he tells a lie, [Page 15] and is guilty of deceit. But words drawn from a man by unlawful force, are no evidence of his mind; and therefore, to save his life in such circumstances, it is no infringement of duty to utter whate­ver words may be agreeable, however alien from his thoughts: there is no reason to presume, in this case, any correspondence between his words and his mind; and if the author of the unlawful vio­lence suffer himself to be deceived, he must blame himself, not the speaker.

It need scarce be mentioned, that the duty of veracity excludes not fable, nor any liberty of speech intended for amusement, and not to be a voucher of truth.

The first active duty I shall mention in particular, is that which subsists between parents and children. The relation of parent and child, being one of the strongest that can exist among individuals, makes mutual benevolence between these persons an indispensable duty. Benevolence among other blood-relations is also a duty; though inferior in degree, for it wears away gradually as the relation becomes more distant.

Gratitude is a duty directed to a particular object; and the object of gratitude is one whose kindness and good offices require suitable returns. But though gratitude is strictly a duty, the measure of per­formance, and the kind, are left mostly to our own choice. It is scarce necessary to add, that the active duties now mentioned are ac­knowledged by all to be absolutely inflexible; perhaps more so than the restraining duties: many find excuses for doing harm; but no one hears with patience an excuse for deviating from friendship or gratitude.

Distress tends vigorously to convert the virtue of benevolence into a duty. But distress alone is not sufficient, without other concurring circumstances; for to relieve the distressed in general, would be a du­ty far beyond the reach of the most powerful prince that ever existed. Our relations in distress claim this duty from us, and even our neigh­bours; but distant distress, where there is no particular connection, scarce rouses our sympathy, and never is an object of duty. Many o­ther connections, too numerous for this short essay, extend the duty of relieving others from distress; and these naturally make a large branch in every treatise upon equity.

One great advantage of society is, the co-operation of many to accomplish some useful end, for which a single hand would be insuf­ficient. All the arts, manufactures, and commercial dealings, re­quire many hands, which cannot be depended on if there be no en­gagement; [Page 16] and therefore the performance of promises and covenants is in society a capital duty. In their original occupations of hunting and fishing, men, living scattered and dispersed, had seldom oppor­tunity to aid and benefit each other; and in that situation covenants, being of little use, were little regarded. But husbandry, being fa­vourable to population, and requiring the co-operation of many hands, drew men together for mutual assistance; and then covenants began to make a figure: arts and commerce made them more and more necessary; and by the improvement of man's nature in society, the utmost regard at present is had to them.

But contracts and promises are not confined to commercial deal­ings: they serve also to make benevolence a duty, independent of any pecuniary interest. They are even extended so far, as to connect the living with the dead. A man would die with regret, if he thought his friends were not bound by the promises they make to fulfil his will after his death: and to quiet the minds of men with respect to futurity, the moral sense makes the performing such promises our duty. Thus, if I promise to my friend to erect a monument for him after his death, conscience binds me, even though no person alive be intitled to demand performance: every one holds this to be my duty; and I must lay my account to suffer reproach and blame, if I neglect my engagement.

To fulfil a rational promise or covenant deliberately made, is a du­ty not less inflexible than those duties are which arise independent of consent. But as man is fallible, liable to fraud and imposition, and to be misled by ignorance or error, his case would be deplorable, were he compelled by the moral sense to fulfil every engagement, however imprudent or irrational. Here the moral sense, bending to circumstances, is accommodated to the fallible nature of man: it relieves him from deceit, from imposition, from ignorance, and from error; and binds him to no engagement but what fairly answers the end proposed by it.

The other branch of duties, comprehending those we owe to our­selves, may be discussed in a few words. The sense of propriety, a branch of the moral sense, regulates our conduct with respect to our­selves; as the sense of justice, another branch of the moral sense, re­gulates our conduct with respect to others. The sense of propriety dictates, that we ought to act suitably to the dignity of our nature, and to the station allotted us by Providence; and, in particular, that temperance, prudence, modesty, and regularity of conduct, are self­duties. These duties contribute greatly to private happiness, by [Page 17] preserving health, peace of mind, and a justly founded self-esteem; which are great blessings: they contribute not less to happiness in so­ciety, by procuring love and esteem, and consequently aid and sup­port in time of need.

Upon reviewing the foregoing duties respecting others, we find them more or less extensive; but none of them so extensive as to have for their object the good of mankind in general. The most extensive duty is that of restraint, prohibiting us to harm others: but even this duty suffers an exception respecting those who merit punishment. The active duties of doing good are circumscribed within much nar­rower bounds; requiring an intimate relation for their object, such as what we bear to our parents, our children, our friends, our bene­factors. The slighter relations are not an object, unless with the ad­dition of peculiar circumstances: neighbourhood, for example, does not alone make benevolence a duty; but supposing a neighbour to be in distress, we become bound to relieve him in proportion to our a­bility. For it is remarkable in human nature, that though we al­ways sympathise with our relations, and with those under our eye, the distress of persons remote and unknown affects us very little. Pactions and agreements become necessary, where the purpose is to extend the duty of benevolence, in any particular, beyond the bounds mentioned. Men, it is true, are sometimes capable of doing more good than is prescribed to them as a duty; but every such good must be voluntary.

And this leads to moral acts that are left to our own will to be done or left undone; which is the second general branch of moral ac­tions mentioned above. Writers differ strangely about the benevo­lence of man. Some hold him to be merely a selfish being, inca­pable of any motive to action but what ultimately respects himself: this is too bold an assertion, being contradictory to the experience of all ages, which affords the clearest conviction, that men frequently act for the good of others, without regard to their own good, and sometimes in direct opposition to it. Other writers, running to the opposite extreme, advance benevolence to be a duty, maintaining that every one of the human race is intitled to all the good we can possibly do them: which banishes every consideration of self-interest, other than what we owe to ourselves as a part of the general society of men. This doctrine is not less contradictory to experience than the former: for we find that men generally are disposed to prefer their own interest before that of those with whom they have no particu­lar [Page 18] connection: nor do we find such bias controlled by the moral sense.

With respect to the actions that belong to the present branch, the moral sense imposes no laws upon us, leaving us at freedom to act or not according to our own inclination. Taking, accordingly, under consideration any single benevolent act by itself, it is appro­ved when done, but not condemned when left undone. But consi­dering the whole of our conduct, the moral sense appears to vary a little. As the nature of man is complex, partly social, partly selfish, reason dictates that our conduct ought to be conformable to our na­ture; and that, in advancing our own interest, we ought not altoge­ther to neglect that of others. The man accordingly who confines his whole time and thoughts within his own little sphere, is con­demned by all the world as guilty of wrong conduct; and the man himself, if his moral perceptions be not blunted by selfishness, must be sensible that he deserves to be condemned. On the other hand, it is possible that voluntary benevolence may be extended beyond proper bounds. The true balance of the mind consists in a subordi­nation of benevolence to self-love; and therefore, where that balance is so varied as to give superior weight to the former, a man thus con­stituted will be excessive in his benevolence: he will sacrifice a great interest of his own to a small interest of others; and the moral sense dictates that such conduct is wrong.

With respect to the subject of this chapter in general, we have rea­son to presume from the uniformity of our moral perceptions, that there must be some general character distinguishing right actions, and their good effects, from wrong actions, and their ill effects. And from the deduction above given it will appear, that the general tendency of the former is, to promote the good of society; and of the latter, to obstruct that good. Universal benevolence, as a duty, is indeed not required of man; for an evident reason, that the per­formance is beyond the reach of his utmost abilities: but for promo­ting the general good, every duty is required of him that he can ac­complish; which will appear from the slightest review of the forego­ing duties. The prohibition of harming others is an easy task, and therefore is made universal. Our active duties are in a very differ­ent condition: man is circumscribed both in his capacity and powers; he cannot do good but in a slow succession; and therefore it is wisely ordered, that the obligation he is under to do good should be confi­ned to his relations, his friends, his benefactors. Even distress can­not make benevolence a general duty: all a man can readily do, and [Page 19] all he is bound to do, is to relieve those at hand; and accordingly we hear of distant misfortunes with very little or no concern.

At the same time, let us not misapprehend the moral system, as if it were our duty, or even lawful, to prosecute what, upon the whole, we reckon the most beneficial to society, balancing ill with good. In the moral system, it is not permitted to violate the most trivial right of any one, however beneficial it may be to others. For example, a man in low circumstances, by denying a debt he owes to a rich miser, saves himself and a hopeful family from ruin. In this case the good effect far outweighs the ill: but the moral sense admits no balancing between good and ill, and gives no quarter to injustice, whatever benefit it may produce. And hence a maxim in which all moralists agree, That we must not do evil even to bring about good. This doctrine, at the same time, is nicely correspondent to the nature of man: were it a rule in society, That a greater benefit to others would make it just to deprive me of my life, of my reputation, or of my effects, I should follow the advice of a celebrated philosopher, re­nounce society, and take refuge among the savages.

CHAP. III. Principles of Duty and of Benevolence.

HAVING thus shortly delineated the laws of nature, we proceed to a very important article; which is, to inquire into the means provided by the author of our nature for compelling obedience to these laws. The moral sense is an excellent guide; but the most ex­pert guide will avail nothing to those who are not disposed to follow him. Intuitive knowledge of what is right, cannot of itself be a motive to act righteously, more than intuitive knowledge of what is wrong can be a motive to act unrighteously. From this single consi­deration, it must be evident, that, to complete the moral system, there ought to be some principle or propensity in our nature, some impelling power, to be a motive for acting when the moral sense says we ought to act, and to restrain us from acting when the moral sense says we ought not to act.

The author of our nature leaves none of his works imperfect. In order to render us obsequious to the moral sense, as our guide, he hath implanted in our nature the three great principles, of duty, of voluntary benevolence, and of rewards and punishments.

[Page 20] It may possibly be thought that rewards and punishments, of which afterward, are sufficient of themselves to inforce the laws of our nature, without necessity of any other principle. Human laws, it is true, are inforc'd by these means, because no higher sanction is under the command of a terrestrial legislator: but the celestial le­gislator, with power that knows no control, and benevolence that knows no limits, has inforc'd his laws by means not less remarkable for their mildness than for their efficacy: he employs no external compulsion; but in order to engage our will on the side of moral conduct, has in the breast of every individual established the princi­ples mentioned, which efficaciously excite us to obey the dictates of the moral sense. Other principles may solicit and allure; but the principle of duty assumes authority, commands, and must be obey'd.

As one great advantage of society is, the furnishing opportunities without end of mutual aid and assistance, beyond what is strictly our duty; nature hath disposed us to do good by the principle of be­nevolence, which is a powerful incitement to be kindly, beneficent, and generous. Nor is this principle, as will afterward appear, too sparingly distributed: its strength is so nicely proportioned to our si­tuation in this world, as better to answer its destination, than if it were an over-match for self-interest, and for every other principle.

Thus, moral actions are divided into two classes: the first regards our duty, containing actions that ought to be done, and actions that ought not to be done: the other regards actions left to ourselves, containing actions that are right when done, but not wrong when left undone. It will appear afterward, that the well-being of society depends more on the first class than on the second; that society is in­deed promoted by the latter; but that it can scarce subsist unless the former be made our duty. Hence it is, that actions only of the first class are made indispensable, actions of the second class being left to our own free will. And hence also it is, that the various principles or propensities that dispose us to actions of the first sort, are distin­guished by the name of primary virtues, giving the name of secondary virtues to those principles or propensities which dispose us to actions of the other sort a.

CHAP. IV. Rewards and Punishments.

REFLECTING upon the moral branch of our nature qualifying us for society in the most perfect manner, we cannot overlook the hand of our maker; for means so finely prepared to accomplish an important end, never happen by chance. At the same time it must be acknowledged, that in many men the principle of duty has not vigour nor authority sufficient to stem every tide of unruly passion: by the vigilance of some passions we are taken unprepared, deluded by the sly insinuations of others, or overwhelmed with the stormy impetuosity of a third sort. Moral evil thus gains ground, and much wrong is done. This new scene makes it evident, that there must be some article wanting to complete the present undertaking. The means provided for directing us in the road of duty are indeed explained; but as in deviating from the road wrongs are commit­ted, there is hitherto nothing said of redressing these wrongs, nor of preventing the reiteration of them. To accomplish these valuable ends, there are added to the moral system the principle of rewards and punishments, and that of reparation; of which in their order.

Such animals as are governed entirely by instinct, may be quali­fied for society; which, among quadrupeds, is the case of the bea­vers; and, among winged animals, of the bees, of the crows, and of some other kinds. But very few of the human actions are in­stinctive: they are generally prompted by passions, of which there is an endless variety, social and selfish, benevolent and malevolent: and were every passion equally intitled to gratification, man would be utterly incapable of society; he would be a ship without a rud­der, obedient to every wind, and moving at random, without any destination. The faculty of reason would make no opposition; for were there no sense of wrong, it would be reasonable to grati­fy every desire that harms not ourselves: and to talk of pu­nishment would be absurd; for the very idea of punishment im­plies some wrong that ought to be repressed. Hence the necessity of the moral sense to qualify us for society, and to make us ac­countable beings: by teaching us what is our duty, it renders us accountable for our actions, and makes us fit objects of rewards and punishments. The moral sense fulfils another valuable purpose: it [Page 22] forms in our minds an unerring standard, directing the application and the measure of rewards and punishments.

But to complete the system of rewards and punishments, it is ne­cessary, that not only power, but also inclination, be conferred up­on one, or upon many, to reward and to punish. The author of our nature has provided amply for the first, by intitling every indi­vidual to exercise that power as his native privilege. And he has equally provided for the other, by a noted principle implanted in our nature, prompting us to reward the virtuous, and to punish the vicious. Every act of duty is rewarded with our approbation: a be­nevolent act is rewarded with our esteem: a generous act commands our affection. These, and other virtuous actions, have a still higher reward; which is, the consciousness of merit in the author himself.

As to punishment, it would be inconsistent to punish any defect in benevolence, considered as a virtue left to our own free will. But an action done intentionally to produce mischief is criminal, and me­rits punishment: such an action being disagreeable, raises my resent­ment, even though I have no connection with the person injured; and being impelled, by the principle under consideration, to punish vice, as well as to reward virtue, I must chastise the delinquent by indignation, at least, and hatred. An injury done to myself raises my resentment to a higher pitch: I am not satisfied with so slight a punishment as indignation or hatred; the author must by my hand suffer mischief as great as he has done me.

Even the most secret crime escapes not punishment; for, though hid from others, it cannot be hid from the delinquent himself. It raises in him the painful passion of remorse: this passion, in its stronger fits, makes him wish to be punished; and, in extreme, fre­quently impels him to be his own executioner. There cannot be i­magined a contrivance more effectual to deter us from vice; for re­morse is itself a severe punishment. But this is not the whole of self-punishment: every criminal, sensible that he ought to be pu­nished, dreads punishment from others; and this painful feeling, however smothered during prosperity, becomes extremely severe in adversity, or in any depression of mind. Then it is that his crime stares him in the face, and that every accidental misfortune is, in his disturbed imagination, converted into a real punishment: ‘"And they said one to another, We are verily guilty concerning our bro­ther, in that we saw the anguish of his soul, when he besought us; and we would not hear: therefore is this distress come upon us. And Reuben answered them, saying, Spake I not unto you, saying, [Page 23] Do not sin against the child; and ye would not hear? therefore behold also his blood is required;"’ Genesis xlii. 21. 22.

No transgression of the duty we owe to ourselves escapes punish­ment, more than the transgression of the duty we owe to others. The punishments, though not the same, are nearly allied; and differ in degree more than in kind. Injustice is punished by the delinquent himself with remorse; impropriety with shame, which is remorse in a lower degree. Injustice raises indignation in the beholder, and so doth every flagrant impropriety: slighter improprieties receive a milder punishment, being rebuked with some degree of contempt, and frequently with derision.

So far have we been carried in a beaten track: but in attempting to proceed, we are intangled in several intricacies and obstructions. Doth an action well intended, though it fall short of its aim, intitle the author to a reward; or an action ill-intended, though it happen to produce no mischief, subject him to punishment? The moral sense, in some individuals, is known to be so perverted, as to differ, perhaps widely, from the common sense of mankind; must the for­mer or the latter be the rule for punishing or rewarding such persons? At first there will be little hesitation in affirming, that the common sense of mankind must be the standard for rewards and punishments, as well as for civil claims: but these questions suggest some doubts, which, after due examination, lead to an important discovery, That rewards and punishments are regulated by a different standard.

It is the common sense of mankind that determines actions to be right or wrong, just or unjust, proper or improper. By this stand­ard, all pecuniary claims are judged, all claims of property, and, in a word, every demand founded upon interest; not excepting repara­tion, as will afterward appear. But with respect to the moral cha­racters of men, and with respect to rewards and punishments, a standard is established far less rigid; which is, the opinion that men form of their own actions: and accordingly, as mentioned a­bove, a man is held to be innocent when he does what he himself thinks right; and is held to be guilty when he does what he himself thinks wrong. Thus we are led, by a natural principle, to judge of others as we believe they judge of themselves; and by that rule we pronounce them virtuous or vicious, innocent or guilty; and we approve or disapprove, praise or blame them accordingly a. Some, [Page 24] it is true, are so perverted by bad education, or by superstition, as to espouse numberless absurd tenets, flatly contradicting the common standard of right and wrong; and yet even these make no excep­tion from the rule: if they act according to conscience, they are in­nocent, however wrong the action may be; and if they act against conscience, they are guilty, however right the action may be. Here then is a conspicuous standard for rewards and punishments: it is a man's own conscience that declares him innocent or guilty, and consequently fit to be rewarded or punished; for it is abhorrent to every natural perception, that a guilty person be rewarded, or an innocent person punished. Further, in order that personal merit and demerit may not in any measure depend upon chance, we are so con­stituted as to place innocence and guilt, not on the event, but on the intention of doing right or wrong; and accordingly, whatever be the event, a man will be praised for an action well intended, and con­demned for an action ill intended.

But what if a man intending a wrong, happen by accident to do a wrong he did not intend; as, for example, intending to rob a warren by shooting the rabbits, he accidentally wound a child unseen behind a bush? The delinquent ought to be punished for intending to rob; and he is also subjected to repair the hurt done to the child: but he cannot be punished for this accidental wound; because the law of nature regulates punishment by the intention, and not by the event a.

[Page 25] The transgression of the primary virtues is attended with severe and never-failing punishments, which are much more effectual than any that have been invented to inforce municipal laws: on the other hand, there is very little merit ascribed even to the strictest obser­vance of them. The secondary virtues are directly opposite, with re­spect to their rewards and punishments: the neglect of them is not attended with any punishment; but the practice of them is attended with the highest degree of approbation. Offices of undeserved kindness, returns of good for evil, generous toils and sufferings for our friends, or for our country, come under this class: to perform actions of this kind, there is no motive that, in a proper sense, can be termed a law; but there are the strongest motives that can consist with freedom, the per­formance being rewarded with a consciousness of self-merit, and with universal praise and admiration, the highest rewards human na­ture is susceptible of.

From what is said, the following observation will occur: The pain of transgressing justice, fidelity, or any primary virtue, is much great­er than the pleasure of performance; but the pain of neglecting a generous action, or any secondary virtue, is as nothing, compared with the pleasure of performance. Among the vices opposite to the primary virtues, the most striking moral deformity is found: among the secondary virtues, the most striking moral beauty.

CHAP. V. Reparation.

REPARATION, a capital part of the moral system, promotes two ends of great importance: it represses wrongs that are not cri­minal; and it also makes up the loss sustained by wrongs of what­ever kind. With respect to the former, reparation is a species of pu­nishment; and with respect to the latter, it is a branch of justice. These ends will be better understood, after ascertaining the nature and true foundation of reparation. Every claim for reparation sup­poses a wrong action done by one, and loss or mischief thereby occa­sioned to another: And hence, 1mo, There can be no claim for repa­ration [Page 26] if the action was innocent, whatever be the mischief; 2do, Nor can there be any claim unless mischief have happened, however wrong, or even criminal, the action may be. That the repara­tion to be awarded must correspond to the extent of the loss or mis­chief, is self-evident. The single difficulty is, to separate, by pre­cise boundaries, actions that are wrong from those that are innocent. In order to explain the qualities of right and wrong, it was sufficient at first to lay down in general, That an action done intentionally to produce an agreeable effect, is right; and done intentionally to pro­duce a disagreeable effect, is wrong. But upon examining this sub­ject more narrowly, certain actions are discovered to be wrong, though the mischief they have produced was not intended; and certain ac­tions are discovered to be innocent, though they have produced mis­chief. And these I shall endeavour to explain, as follows.

The moral sense dictates, that in acting we ought carefully to a­void doing mischief: the only difficulty is, to determine what de­gree of care is requisite. An action may produce mischief that was foreseen, but not intended; and it may produce mischief that was neither intended nor foreseen. The former is not cri­minal; because no action has that character, without an intention to produce mischief: but it is CULPABLF or FAULTY, because the moral sense prohibits every action that may probably do mischief; and if we do mischief by transgressing that prohibition, we are bla­med by others, and even by ourselves. Thus, a man who throws a large stone into the market-place among a crowd of people, is high­ly culpable; because he foresaw that mischief would probably ensue, though he had no intention to hurt any person. With respect to the latter, though the mischief was neither intended nor foreseen, yet if it might have been foreseen, the action so far is rash or incautious, and consequently culpable or faulty in some degree. Thus, if a man, in pulling down an old house adjacent to a frequented place, happen to wound a passenger, without calling aloud that people may keep out of the way, the action is in some degree culpable, because the mischief might have been foreseen. But though harm ensue, an action is not culpable or faulty, if all reasonable precaution have been adhibited: the moral sense declares the author to be innocent: the effect is per­ceived to be accidental; and the action may be termed unlucky or un­fortunate, but cannot be said to be either right or wrong a.

[Page 27] With respect to rash or incautious actions, where the mischief might have been foreseen, though neither intended nor actually foreseen, it is not sufficient to escape blame, that a man naturally rash or inattentive acts according to his character: a degree of pre­caution is required of him, both by himself and by others, such as is natural to the generality of men. The author, in particular, per­ceives, that he might and ought to have acted more cautiously; and his conscience reproaches him for his inattention, not less than if he were naturally more cool and attentive. Thus the circumspection natural to man in general, is applied as a standard to every indivi­dual; and if they fall short of that standard, they are culpable and blameable, however unforeseen by them the mischief may have been. This rule is distinctly laid down in the Roman law: ‘"Cul­pam autem esse, quod, cum a diligente provideri poterit, non es­set provisum *."’ Here the person's ordinary diligence is not re­ferred to as the standard, but the ordinary diligence of mankind. Aristotle, in his Rhetoric, has evidently the same rule in view: ‘"Reason teacheth us to distinguish between an injury and a fault, and between a fault and a mere accident. A mere accident can neither be foreseen nor prevented: a fault is where the mischief might have been foreseen, but where the action was done without evil intention: an injury is that which is done with an evil in­tention."’

What is said upon culpable actions is equally applicable to cul­pable omissions; for by these also mischief may be occasioned, inti­tling the sufferer to reparation. If we forbear to do our duty with an intention to occasion mischief, the forbearance is criminal. The only nice point is, how far forbearance without such intention is culpable. If the probability of mischief was foreseen, though not intended, the omission is highly culpable; and though neither in­tended nor foreseen, yet the omission is culpable, in a lower degree, if there have been less care and attention than are proper for per­forming the duty required. But supposing all due care, the omission of extreme care and diligence is not culpable.

Upon ascertaining what acts and omissions are culpable or faulty, every intricacy with respect to reparation vanishes; for it may be laid down as a rule, without an exception, That every culpable act, and every culpable omission, binds us in conscience to repair the mischief [Page 28] occasioned by it. The moral sense binds us no farther; for it loads not with reparation the man who is innocent, though he have done harm: the harm is accidental; and we are so constituted as not to be responsible in conscience for what happens by accident. But here it is requisite that the man be in every respect innocent; for if he intend harm of any sort, he will find himself bound in conscience to repair the harm he has done, even accidentally: as, for example, when aiming a blow unjustly at one in the dark, he happens to wound another whom he did not suspect to be there. And hence it is a rule in all municipal laws, That one versans in illicito is liable for every consequence. That these particulars are wisely ordered by the author of our nature for the good of society, will appear after­ward.

We are now prepared for a more particular inspection of the two ends of reparation above mentioned, viz. the repressing wrongs that are not criminal, and the making up what loss is sustained by wrongs of whatever kind. With respect to the first, it is clear, that punish­ment, in its proper sense, cannot be inflicted for a wrong that is cul­pable only; and if nature did not provide some means for repressing such wrongs, society would scarce be a comfortable state: without a pecuniary reparation, there would be no compulsion, other than that of conscience merely, to prevent culpable omissions: and with respect to culpable commissions, the necessity of reparation is still more apparent; for conscience alone, without the sanction of reparation, would seldom have authority sufficient to restrain us from acting rash­ly or incautiously, even where the possibility of mischief is foreseen, and far less where it is not foreseen.

With respect to the second end of reparation, my conscience dictates to me, that if a man suffer by my fault, whether the mischief was foreseen or not foreseen, it is my duty to make up his loss; and I perceive intuitively, that the loss ought to rest ultimately upon me, and not upon the sufferer, who has done no wrong.

In every case where the mischief done can be estimated by a pecu­niary compensation, the two ends of reparation coincide. The sum is taken from the one as a sort of punishment for his fault, and is bestowed on the other to relieve him from the loss he has sustained. But there are numberless instances, where the mischief done admits not an equivalent in money; and in such instances, there is no place for reparation except with relation to its first end. Defama­tion, contemptuous treatment, personal restraint, the breaking one's peace of mind, are injuries that cannot be repaired by money; and [Page 29] the pecuniary reparation that the wrong-doer is decreed to make, can only be as a sort of punishment, in order to deter him from a reitera­tion of such injuries: the sum, it is true, is awarded to the person in­jured; but this cannot be to make up his loss, which money cannot do, but only as a solatium for what he has suffered.

Hitherto it is supposed, that the man who intends an ill effect is at the same time conscious of its being ill. But a man may intend an ill effect, thinking, erroneously, that it is good; or a good effect, thinking, erroneously, that it is ill: and the question is, What should be the consequence of such error with respect to reparation? The latter case is clear: if the effect be good, the action that produced it is right, whatever be the author's opinion; and no person who occa­sionally suffers loss by a right action is intitled to complain. On the other hand, if the effect be ill, and the action consequently wrong, the innocence of the author, for which he is indebted to an error in judgement, will not relieve him from reparation. When he is made sensible of his error, he perceives himself bound in conscience to re­pair the harm he has done by a wrong action: and all others, sensi­ble from the beginning of his error, perceive that he is so bound; for to them it must appear obvious, that a man's errors ought ulti­mately to affect himself only, and not the person who has not erred. Hence, in general, reparation always follows wrong or injustice; and is not in the least affected by an erroneous opinion of a right action being wrong, or a wrong action right.

But this doctrine suffers an exception with respect to a man who, having undertaken a trust, is bound in duty to act: as where an of­ficer of the revenue, upon a doubtful clause in a statute, makes a seizure of goods, as forfeited to the crown, which afterward in the proper court are found not to be seizable. The officer, in this case, ought not to be subjected to reparation, if he have acted to the best of his judgement. This rule, however, must be taken with a limita­tion: a gross error will not excuse a public officer, who ought to know better.

It is scarce necessary to observe, that a man is not accountable for any harm he does by an involuntary act. A mason, for example, tumbling from a scaffold, happens in falling to wound one below: his conscience blames him not for what he could not help; and there is nothing in his conduct to lay hold of, for subjecting him to repara­tion. But it is not sufficient that one of several connected actions be involuntary; for reparation may be claimed, though the imme­diate act be involuntary, provided it be connected with a preceding [Page 30] voluntary act. Example: ‘"If A ride an unruly horse in Lincolns­inn-fields to tame him, and the horse breaking from A run over B, and grievously hurt him; B shall have an action against A. For though the mischief was done against the will of A, yet since it was his fault to bring a wild horse into a frequented place where mischief might ensue, he must answer for the consequences."’ Gaius seems to carry this rule still further, holding in general, that if a horse, by the weakness or unskilfulness of the rider, break away and do mischief, the rider is liable *. But Gaius probably had in his eye a frequented place, where the mischief might have been foreseen. Thus, in general, a man is made liable for the mischief occasioned by his voluntary act, though the immediate cause of the mischief be in­voluntary.

CHAP. V. The Laws of Society considered with respect to their final causes.

BY our senses, external and internal, we are made acquainted with objects external and internal, and with their qualities: knowledge so acquired is termed intuitive, because we acquire more knowledge by sight or intuition than by any other of our senses. The reasoning faculty investigates truth by a regular progress from premises to consequences; and, upon that account, knowledge so ac­quired may be termed discursive. Thus certain properties of a tri­angle, and of a square, are laid open to us by reasoning; and the knowledge we thereby acquire is discursive. Of the different degrees of conviction, the very highest belongs to intuitive knowledge: and it ought to be so, because this species of knowledge is acquired by perception alone; which is not only a single mental act, but is also complete in itself, having no dependence on any thing antecedent: whereas discursive knowledge requires, not only a plurality of men­tal acts, but also one or more intuitive propositions to found upon. We accordingly rely more upon intuitive knowledge than upon the strictest reasoning: witness external objects, of whose existence we have a more solid conviction than of any proposition in Euclid. The application of this doctrine to morality, will be obvious at first view. [Page 31] By perception alone, without reasoning, we acquire the knowledge of right and of wrong, of what we may do, of what we ought to do, and of what we ought to abstain from: and considering that we have thus a greater certainty of the moral laws than of any proposition discovered by reasoning, man may well be deemed the favourite of Heaven, when such wisdom is employ'd in qualifying him to act a right part in life: the moral sense or conscience may well be held the voice of God within us, constantly admonishing us of our duty; and requiring on our part no exercise of our faculties but attention merely. The celebrated Locke ventured what he thought a bold con­jecture, that the moral duties may be capable of demonstration: how great his surprise to have been told, that they are capable of much higher evidence!

It would be losing time to indicate the final cause of establishing morality upon intuitive knowledge. Let us only consider what must have been our condition, had we been left to the glimmering light of reason. This faculty is distributed among men in portions so unequal, as to bar all hopes from it of uniformity, either in opinion or in action. Reason, it is true, aided by experience, may support morality, by convincing us that we cannot be happy if we abandon our duty for any other interest: but reason, even with experience, seldom weighs much against passion; and to restrain its impetuosity, nothing less is requisite than the vigorous and commanding principle of duty, directed by the shining light of intuition.

A second final cause respecting also morality in general, results from the connection above mentioned between right and agreeable in human actions, and between wrong and disagreeable. Were our duty disagreeable, man would be an inconsistent being; for his incli­nation would be constantly in opposition to his duty. To mislead us from our duty, even though agreeable, there are so many temptations, that it is no easy task to keep the straight road: would we persevere in it if our duty were disagreeable?

As the moral duties above mentioned are obviously calculated for the good of society, it might be thought, that, instead of particu­lar duties, all should be reduced to a single general rule, that of do­ing every thing in our power for the good of society. But I shall endeavour to evince, that this imagined system, however plausible, is neither suited to the end proposed by it, nor to the nature of man; and in the course of the argument it will be seen, with what superior wisdom the true system of morality is contrived, which will set its fi­nal cause in a conspicuous light. It has been shown how essential in­tuitive [Page 32] knowledge is to the performance of our duty: and I begin with examining what place there might be for intuitive knowledge in the proposed system. As the general good of mankind results from many and various circumstances intricately combined, that good may be a subject for reasoning, but never can be an object of intuitive knowledge. But reason employ'd in weighing an endless number and variety of circumstances, seldom affords any solid conviction; and upon the proposed system we would be often left in the dark about our duty, however upright our intentions might be. At the same time, we would in vain expect from such faint conviction, authority sufficient to counterbalance the influence of passion: our duty would vanish from our sight in a maze of subtilties; and self-partiality would always suggest plausible reasons, for slight transgressions at first, and afterward for the very boldest. It is therefore order­ed with consummate wisdom, even for the general good, that, a­voiding general and complex objects, the moral sense should be di­rected to certain particular acts, and their effects; which, being plain and simple, can be made our duty by intuitive perception.

In the next place, to make universal benevolence our duty, with­out distinction of persons or circumstances, would in effect subject us to the absurd and impracticable duty, of serving at the same instant an endless number and variety of persons; which, instead of promo­ting the general good, would evidently be detrimental, by unquali­fying us to perform any part.

The true system of morality, that which is display'd above, is bet­ter suited to the limited powers of man; and yet is contrived in the most perfect manner for promoting the general good. There is no occasion to lose time in demonstrating, that a man entirely selfish is ill fitted for society; and we have seen, that universal benevolence, considered as a duty, would contribute to the general good perhaps less than absolute selfishness. Man is much better fitted for so­ciety, by having in his constitution the principles of self-love and of benevolence duly proportioned. Benevolence, as far as a du­ty, takes place of self-love; which is wisely ordered, because so far it is essential to the very constitution of society. Benevolence, again, as a virtue not a duty, gives place to self-love; which is ordered with equal wisdom, because every man has more power, knowledge, and opportunity, to promote his own good, than that of others: by which means more good is actually produced, than if we were entirely surrendered to benevolence. At the same time, the princi­ple of benevolence is as extensive as can consist with the limited capa­city [Page 33] of man: the chief objects of his affection are his relations, his friends, his benefactors, to serve whom he is bound in duty: some share of benevolence is reserved for his neighbours, and even for those he is barely acquainted with; and to make benevolence more extensive, would be entirely fruitless, because here are objects in plen­ty to fill the most capacious mind. But though there is not room for a greater variety of particular objects, yet the faculty we have of u­niting numberless individuals into one complex object, enlarges great­ly the sphere of our benevolence: for by this power, our country, our religion, our constitution, become objects of the most vigorous affection and public spirit. The individuals that compose the group, considered apart, may be too minute, or too distant, for our benevolence; but when comprehended under one view, they become a complex object that warms and dilates the heart. By that won­derful faculty, the limited capacity of our nature is remedied; di­stant objects, otherwise invisible, are rendered conspicuous; accumu­lation makes them great; greatness brings them near the eye; and affection, preserved entire, is bestow'd upon a complex object, as up­on one that is single and visible; but with much greater force in pro­portion to its superior importance.

We now proceed to particulars; and the first that meets us is the great law of restraint. Man is evidently framed for society; and be­cause there can be no society among creatures who prey upon each o­ther, it was necessary, in the first place, to provide against mutual in­juries; which is effectually done by this law. Its necessity with re­spect to personal security is self-evident; and its necessity with respect to matters of property, will be evident from what follows. There is in the nature of man a propensity to hoard or store up the means of subsistence; a propensity essential to our well-being, by prompt­ing us to provide for ourselves, and for those who depend on us. But this natural propensity would be rendered ineffectual, were we not secured in the possession of what we thus store up; for a man will never toil to accumulate what he cannot securely possess. This security is afforded by the moral sense; which dictates to all men, that goods stored up by individuals are their property, and that pro­perty ought to be inviolable. Thus, by the great law of restraint, men have a protection for their goods, as well as for their persons or repu­tation; and have not less security in society than if they were separa­ted from each other by impregnable fortresses.

If the law of restraint be essential to the existence of society, seve­ral other duties are not less so. Mutual trust and confidence, with­out [Page 34] which there can be no society, enter into the character of the human species; corresponding to which are the duties of veracity and fidelity: the latter would be of no significancy without the former; and the former without the latter would be hurtful, by laying men open to fraud and deceit.

With respect to veracity, in particular, such is our situation in this world, as to be indebted to the information of others for almost every thing that can benefit or hurt us; and if we could not depend up­on information, society would be very little beneficial. Further, it is wisely ordered, that we should adhere strictly to truth, even where we perceive no harm in transgressing that duty; for it is sufficient that harm may possibly ensue, though not foreseen. At the same time, falsehood always does mischief; for if it happen not to injure us externally in our reputation, or in our goods, it never fails to in­jure us internally; which will thus appear. Men were made for so­ciety; and one great blessing of that state is a candid intercourse of hearts in conversation, in communication of sentiments, of opinions, of desires, and of wishes; and to admit any falsehood or deceit into such intercourse, would poison the most refined pleasures of life.

Because man is the weakest of all animals separately, and the very strongest in society, mutual assistance is one great end in the social state; to which end it is necessary that covenants and promises be binding, and that favours received be thankfully repaid.

The final cause of the law of propriety, which inforces the duty we owe to ourselves, comes next in order. In a discourse upon those laws of nature which concern society, we have no occasion to men­tion any self-duty but what is connected with society; such as pru­dence, temperance, industry, firmness of mind, &c. And that these should be made our duty, is wisely ordered in a double respect; first as qualifying us to act our part in society; and next as intitling us to the good will of others. It is the interest, no doubt, of every man to suit his behaviour to the dignity of his nature, and to the station allotted him by Providence; for such rational conduct contributes to happiness, by preserving health, by procuring plenty, by gaining the esteem of others, and, which of all is the greatest blessing, by gaining a justly founded self-esteem. But here even self-interest is not relied on: the powerful authority of duty is superadded to the motive of interest, that in a matter of the utmost importance both to ourselves and to the society we live in, our conduct may be steady and regular. These duties tend not only to make a man happy in [Page 35] himself, but also, by gaining the good-will and esteem of others, to command their help and assistance in time of need.

I proceed to the final causes of natural rewards and punishments. And what at first will occur to every one is, that right and wrong ought to be the rule for distributing rewards and punishments, as well as for determining civil claims; for does it not seem rational that a right action should be rewarded, and a wrong action punish­ed? But, upon more mature reflection, we are forc'd to abandon that opinion. All civil claims, and all controversies about things, must be adjusted by the standard of right and wrong; for where parties differ about meum et tuum, the plaintiff's opinion cannot be the rule, and as little the defendant's: there must be an appeal to a judge; and what rule has a judge for determining the controversy, o­ther than the common sense of mankind about right and wrong? But to bring rewards and punishments under the same standard, without regarding private conscience, would be a system unworthy of our maker; it being extremely clear, that to reward one who is not con­scious of merit, or to punish one who is not conscious of guilt, can never answer any good end; and, in particular, cannot tend either to improvement, or reformation of manners. How much more like the Deity is the plan of nature; which rewards no man who is not conscious that he ought to be rewarded, and punishes no man who is not conscious that he ought to be punished! By these means, and by these only, rewards and punishments attain every good end that can be proposed by them. Here is a final cause most illu­strious!

The rewards and punishments that attend the primary and secon­dary virtues, are finely adjusted for supporting the distinction be­tween them set forth above. Punishment must be confined to the transgression of primary virtues, it being the intention of nature that the secondary virtues should be entirely voluntary. On the other hand, the secondary virtues are more highly rewarded than the pri­mary: generosity, for example, makes a greater figure than justice; and undaunted courage, magnanimity, heroism, rise still higher in our esteem. One would imagine at first view, that the primary vir­tues, being more essential, should be intitled to the first place in our esteem, and be more amply rewarded than the secondary; and yet nature, in elevating the latter above the former, hath taken her mea­sures with peculiar wisdom and foresight. Punishment is reserved to inforce the primary virtues; and if these virtues were also accompa­nied with the higher rewards, the secondary virtues, brought down [Page 36] to a lower rank, would lose entirely that warm enthusiastic admira­tion which is their chief support: self-interest would universally pre­vail over benevolence, and sap the very foundation of those number­less favours we receive from each other in society; favours, not only beneficial in point of interest, but a solid foundation for affection and friendship.

In our progress through final causes, we come at last to reparation, one of the principles destined by Providence, for redressing wrongs committed, and for preventing the reiteration of them. The final cause of the principle of reparation, when the mischief arises from intention, is self-evident: for, to afford security to individuals in so­ciety, it is not sufficient that the man who does intentional mischief be punished; it is necessary that he also be bound to repair the mis­chief. Secondly, Where the act is wrong or unjust, though not un­derstood by the author to be so, it is wisely ordered that reparation should follow; and, in general, that no error, whether in law or in fact, should avail against this claim; which will thus appear. Con­sidering the fallibility of man, it would be too severe to permit ad­vantage to be taken of error in every case. On the other hand, to make it a law in our nature, never to take advantage of error in any case, would be giving too much indulgence to indolence and remis­sion of mind, tending to make us neglect the improvement of our rational faculties. Our nature is so happily framed as to avoid these extremes, by distinguishing between gain and loss. No man is con­scious of wrong, when he takes advantage of an error committed by another to save himself from loss: if there must be a loss, common sense dictates, that it ought to rest upon the person who has err­ed, however innocently, rather than upon him who has not erred. Thus, in a competition among creditors about the estate of their bankrupt debtor, every one is at liberty to avail himself of even the slightest defects in the titles of his competitors, in order to save him­self from loss. But, in lucro captando, the moral sense teacheth a dif­ferent lesson; which is, that no man ought to take advantage of another's error to make gain by it. Thus, an heir finding a brute diamond in the repositories of his ancestor, sells the same for a trifle, mistaking it for a common pebble: the purchaser is, in conscience and in equity, bound to restore the same, or to pay a just price. Third­ly, The following considerations tend to unfold a final cause, not less beautiful than the foregoing, of what the moral sense dictates with respect to mischief done without intention. Society could not subsist in any tolerable manner, were full scope given to rashness and negli­gence, [Page 37] and to every action that is not strictly criminal: whence it is a maxim, founded not less upon utility than upon justice, That men living in society ought to be extremely circumspect as to every action that may possibly do harm. On the other hand, it is also a maxim, That as the prosperity and happiness of man depend on ac­tion, activity ought to be encouraged, instead of being discouraged by the dread of consequences. These maxims, seemingly in op­position, have natural limits that prevent their incroaching upon each other; which limits, at the same time, produce the most good to society of all that can be contrived by the most con­summate lawgiver. There is a certain degree of attention and circumspection that men generally bestow upon affairs, propor­tioned to their importance: if that degree were not sufficient to defend against a claim of reparation, individuals would be too much cramped in action; which would lead to indolence instead of activity: if a less degree were sufficient, there would be too great scope for rash or remiss conduct; which would prove the bane of society. These remarks concerning the good of society, coincide en­tirely with what the moral sense dictates, as above mentioned, that the man who acts with foresight of the probability of mischief, or acts rashly and incautiously without such foresight, ought to be liable for the consequences; but that the man who acts cautiously, without fore­seeing or suspecting that any mischief will ensue, and who therefore is entirely innocent, ought not to be liable for the consequences.

And upon this subject I add the final cause of what is explained a­bove, viz. That the moral sense requires from every man, not his own degree of vigilance and attention, which may be very small, but that which belongs to the common nature of the species. That this is a wise regulation, will appear upon considering, that were repara­tion to depend upon personal circumstances, there would be a necessi­ty of inquiring into the characters of men, their education, their man­ner of living, and the extent of their understanding; which would ren­der judges arbitrary, and such law-suits inextricable. But by assuming the common nature of the species as a standard, by which every man in conscience judges of his own actions, law-suits about reparation are rendered easy and expeditious.


EQUITY, scarce known to our forefathers, makes at present a great figure: like a plant gradually tending to maturity, it has for ages been increasing in bulk, slowly indeed but con­stantly; and at what distance of time we are to hope for its ma­turity, is perhaps not easy to foretell. Courts of equity have al­ready acquired such an extent of jurisdiction, as to obscure in a great measure that of the courts of law. A revolution so signal, will move every curious inquirer to attempt, or to wish at least, a discovery of the cause. But vain will be the attempt, till first a clear idea be formed of the difference between law and equity. The former we know deals in precise rules: but does the latter rest on conscience solely without any rule? This would be unsafe while men are judges, liable not less to partiality than to error: nor could a court, without rules, ever have attained that height of favour, and extent of jurisdiction, which courts of equity enjoy. But if a court of e­quity be governed by any rules or principles, why are not these brought to light in a system? One would imagine, that such a system should not be useful only, but absolutely necessary; and yet writers, far from aiming at a system, have not even defined with any accu­racy what equity is, nor what are its limits and extent. One opera­tion of equity, universally acknowledged, is, to remedy imperfections in the common law, which sometimes is defective, and sometimes ex­ceeds just bounds; and as equity is constantly opposed to common law, a just idea of the latter may probably lead to the former. In order to ascertain what is meant by common law, a historical de­duction is necessary; which I the more chearfully undertake, be­cause this subject seems not to be put in a clear light by any writer.

After states were formed and government established, courts of law were invented to compel individuals to do their duty. This in­novation, as generally happens, was at first confined within narrow bounds. To these courts was given power to inforce duties essen­tial to the existence of society; such as that of forbearing to do harm or mischief: power was also given to inforce duties derived from co­venants and promises, such of them at least as tend more peculiarly to the well-being of society: which was an improvement so great as to leave no thought of proceeding farther; for to extend the protec­tion of a court to natural duties of every sort, would, in a new ex­periment, [Page 39] have been reckoned too bold. Thus, in the Roman law, we find many pactions left upon conscience, without receiving any aid from their courts of law: buying and selling only, with a few o­ther covenants essential to commercial dealing, were regarded. Our courts of law in Britain were originally confined within still narrower bounds: no covenant whatever was by our forefathers countenanced with an action: a contract of buying and selling was not *; and as buying and selling is of all covenants the most useful in common life, we are not at liberty to suppose that any other was more privi­ledged .

But when the great advantages of a court of law were experien­ced, its jurisdiction was gradually extended, with universal approba­tion: it was extended, with very few exceptions, to every covenant and every promise: it was extended also to other matters, till it em­braced every obvious duty arising in common and ordinary dealings between man and man. But it was extended no farther; experience having discovered limits, beyond which it was deemed hazardous to stretch this jurisdiction. Causes of an extraordinary nature, re­quiring some singular remedy, could not be safely trusted with the ordinary courts, because no rules were established to direct their pro­ceedings in such matters; and upon that account, such causes were appropriated to the king and council, being the paramount court a. Of this nature were actions for proving the tenor or contents of a lost writ; extraordinary removings against tenants possessing by lease; the causes of pupils, orphans, and foreigners; complaints against judges and officers of law , and the more atrocious crimes, termed, the pleas of the crown. Such extraordinary cases, multiplying great­ly by complex and intricate connections among individuals, daily discovered, became a burden too great for the king and council. In order therefore to relieve this court, extraordinary causes of a civil nature, were in England devolved upon the court of chancery; a measure the more necessary, that the king, occupied with the mo­mentous affairs of government, and with foreign as well as domestic transactions, had not leisure for private causes. In Scotland, more [Page 40] remote, and therefore less interested in foreign affairs, there was not the same necessity for this innovation: our kings, however, addicted more to action than to contemplation, neglected in a great measure their privilege of being judges, and suffered causes peculiar to the king and council to be gradually assumed by other sovereign courts. The establishment of the court of chancery in England, made it ne­cessary to give a name to the more ordinary branch of law that is the province of the common or ordinary courts: it is termed, the Common Law: and in opposition to it, the extraordinary branch devolved on the court of chancery is termed Equity; the name being derived from the nature of the jurisdiction, directed less by precise rules, than se­cundum aequum et bonum, or according to what the judge in conscience thinks right a. Thus equity, in its proper sense, comprehends e­very matter of law that by the common law is left without remedy; and supposing the boundaries of the common law to be ascertained, there can no longer remain any difficulty about the powers of a court of equity. But as these boundaries are not ascertained by any natural principle, the jurisdiction of common law must depend in a great measure upon accident and arbitrary practice; and accordingly the boundaries of common law and equity, vary in different countries, and at different times in the same country. We have seen, that the common law of Britain was originally not so extensive as at present; and instances will be mentioned afterward, which evince, that the common law in Scotland is farther extended than in England. Its li­mits are perhaps not accurately ascertained in any country; which is to be regretted, because of the uncertainty that must follow in the prac­tice of law. It is lucky, however, that the disease is not incurable: a good understanding between the judges of the different courts, with just notions of law, may, in time, ascertain these limits with sufficient accuracy.

Among a plain people, strangers to refinement and subtilties, law­suits may be frequent, but never are intricate. Regulations to re­strain individuals from doing mischief, and to inforce performance of covenants, composed originally the bulk of the common law; and these two branches, among our rude ancestors, seemed to compre­hend every subject of law. The more refined duties of morality were, [Page 41] in that early period, little felt, and less regarded. But law, in this simple form, cannot long continue stationary: for in the social state under regular discipline, law ripens gradually with the human facul­ties; and by ripeness of discernment, and delicacy of sentiment, ma­ny duties, formerly neglected, are found to be binding in conscience. Such duties can no longer be neglected by courts of justice; and as they made no part of the common law, they come naturally under the jurisdiction of a court of equity.

The chief objects of benevolence considered as a duty, are our re­lations, our benefactors, our masters, our servants, &c.; and these duties, or the most obvious of them, come under the cognisance of common law. But there are other connections which, though more transitory, produce a sense of duty. Two persons shut up in the same prison, perhaps for different causes, being no way connected but by contiguity, and resemblance of condition, are sensible, howe­ver, that to aid and comfort each other is a duty incumbent on them. Two persons shipwrecked upon the same desert island, are sensible of the like mutual duty. And there is even some sense of this kind, a­mong a number of persons in the same ship, or under the same mili­tary command.

Thus mutual duties among individuals multiply by variety of con­nections; and in the progress of society, benevolence becomes a mat­ter of conscience in a thousand instances which formerly were altoge­ther disregarded. The duties that arise from connections so slender, are taken under the jurisdiction of a court of equity; which at first exerciseth its jurisdiction with great reserve, interposing in remark­able cases only, where the duty is palpable. But, gathering cou­rage from success, it ventures to inforce this duty in more delicate circumstances: one case throws light upon another: men, by the reasoning of the judges, become gradually more acute in discerning their duty: the judges become more and more acute in distinguish­ing cases; and this branch of law is imperceptibly moulded into a system a. In rude ages, acts of benevolence, however peculiar the connection may be, are but faintly perceived to be our duty: such perceptions become gradually more firm and clear by custom and re­flection; [Page 42] and when men are so far enlightened, it is the duty as well as honour of judges to interpose *.

This branch of equitable jurisdiction shall be illustrated by va­rious examples. When goods by labour, and perhaps with danger, are recovered from the sea after a shipwreck, every one perceives it to be the duty of the proprietor to pay salvage. A man ventures his life to save a house from fire, and is successful; no mortal can doubt that he is intitled to a recompence from the proprietor, who is bene­fited. If a man's affairs by his absence be in disorder, is not the friend who undertakes the management, intitled to a recompence, though the subject upon which his money was usefully bestowed may have afterward perished casually? Who can doubt of the following proposition, That I am in the wrong to demand money from my debtor, while I with-hold the sum I owe him, which perhaps may be his only resource for doing me justice? Such a proceeding must, in the common sense of mankind, appear partial and oppressive. By the common law, however, no remedy is afforded in this case, nor in the others mentioned. But equity affords a remedy, by inforcing what in such circumstances every man perceives to be his duty. I shall add but one example more: In a violent storm, the heaviest goods are thrown overboard, in order to disburden the ship: the pro­prietors of the goods preserved by this means from the sea, must be sensible that it is their duty to repair the loss; for the man who has thus abandoned his goods for the common safety, ought to be in no worse condition than themselves. Equity dictates this to be their du­ty; and if they be refractory, a court of equity will interpose in be­half of the sufferer.

It appears now clearly, that a court of equity commences at the limits of the common law, and in certain circumstances neglected by common law, enforces benevolence where the law of nature makes it our duty. And thus a court of equity, accompanying the law of nature in its gradual refinements, enforces every natural duty that is not provided for by common law.

The duties hitherto mentioned arise from connections independent altogether of consent. Covenants and promises also, are the source of various connections, and of various duties. The most obvious of these duties, being commonly declared in words, belong to the com­mon law. But every incident that can possibly occur in fulfilling a covenant, is seldom foreseen; and yet a court of common law, in giving judgment upon covenants, considers nothing but declared will, [Page 43] neglecting incidents that would have been provided for had they been foreseen. Further, the inductive motive for making a covenant, and its ultimate purpose and intendment, are circumstances disre­garded at common law: these, however, are capital circumstances; and justice, where they are neglected, cannot be fulfilled. Hence the powers of a court of equity with respect to engagements. It supplies imperfections in common law, by taking under consideration every material circumstance, in order that justice may be distributed in the most perfect manner. It sometimes supplies a defect in words, where will is evidently more extensive; and sometimes supplies a defect even in will, according to what probably would have been the will of the parties had they foreseen the event. By taking such liberty, a covenant is made effectual according to the aim and purpose of the contracters; and without such liberty, seldom it happens that justice can be accurately distributed.

In handling this branch of the subject, it is not easy to suppress a thought that comes cross the mind. The jurisdiction of a court of common law, with respect to covenants, appears to me odd and unaccountable. To find the jurisdiction of this court limited, as a­bove mentioned, to certain duties of the law of nature, without com­prehending the whole, is not singular nor surprising. But with re­spect to the circumstances that occur in the same cause, it cannot fail to appear singular, that a court should be confined to a few of these circumstances, neglecting others not less material in point of justice. This reflection will be set in a clear light by a single example. Every one knows, that an English double bond was a contrivance to evade the old law of this island, which prohibited the taking interest for money: the professed purpose of this bond is, to provide for inter­est and costs; beyond which the penal part ought not to be exacted: and yet a court of common law, confined strictly to the words or de­clared will, is necessitated knowingly to commit injustice. The mo­ment the term of payment is past, when there cannot be either costs or interest, this court, instead of pronouncing sentence for what is really due, viz. the sum borrowed, must follow the words of the bond, and give judgement for the double. This defect in the consti­tution of a court, is too remarkable to have been overlooked: a remedy accordingly is provided, though far from being of the most perfect kind; and that is, a privilege to apply to the court of equity for re­dress. Far better had it been, either to withdraw covenants altoge­ther from the common law, or to impower the judges of that law [Page 44] to determine according to the principles of justice a. I need scarce observe, that the present reflection regards England only, where equi­ty and common law are appropriated to different courts. In Scot­land, and other countries where both belong to the same court, the inconvenience mentioned cannot happen. But to return to the gra­dual extension of equity, which is our present theme:

A court of equity, by long and various practice, finding its own strength and utility, and impelled by the principle of justice, bold­ly undertakes a matter still more arduous; and that is, to correct or mitigate the rigour, and what even in a proper sense may be termed the injustice of common law. It is not in human foresight to establish any general rule, that, however salutary in the main, may not be op­pressive and unjust when applied to some singular cases. Every work of man must partake of the imperfection of its author; sometimes falling short of its purpose, and sometimes going beyond it. If, with respect to the former, a court of equity be useful, it may be pronounced necessary with respect to the latter; for, in society, it is certainly a greater object to prevent legal oppression, which alarms every individual, than to supply legal defects, scarce regarded but by those immediately concerned. The illustrious Bacon, upon this sub­ject, expresses himself with great propriety: ‘"Habeant curiae prae­toriae potestatem tam subveniendi contra rigorem legis, quam sup­plendi defectum legis. Si enim porrigi debet remedium ei quem lex praeteriit, multo magis ei quem vulneravit *."’

All the variety of matter hitherto mentioned, is regulated by the principle of justice solely. It may, at first view, be thought, that this takes in the whole compass of law, and that there is no remain­ing field to be occupied by a court of equity. But, upon more narrow inspection, we find a number of law-cases into which ju­stice enters not, but only the principle of utility. Expediency re­quires that these be brought under the cognisance of a court; and the court of equity, gaining daily more weight and authori­ty, takes naturally such matters under its jurisdiction. I shall give a few examples. A lavish man submits to have his son made his interdictor: this agreement is not unjust; but tending to the corruption of manners, by reversing the order of nature, it is reproba­ted by a court of equity, as contra bonos mores. This court goes far­ther: [Page 45] it discountenances many things in themselves indifferent, mere­ly because of their bad tendency. A pactum de quota litis is in itself innocent, and may be beneficial to the client as well as to the advocate: but to remove the temptation from advocates to take advantage of their clients, instead of serving them faithfully, this court declares against such pactions. A court of equity goes still farther, by consulting the public interest with relation to mat­ters not otherwise bad but by occasioning unnecessary trouble and vexation to individuals. Hence the origin of regulations tending to abridge law-suits.

A mischief that affects the whole community figures in the ima­gination, and will naturally move judges to stretch out a preventive hand. But what shall we say of a mischief that affects one person only, or but a few? An estate, for example, real or personal, is left entirely without management, by the infancy of the proprietor, or by his absence in a remote country: he has no friends, or they are unwilling to interpose. It is natural, in this case, to apply for pu­blic authority. A court of common law, confined within certain precise limits, can give no aid; and therefore it is necessary that a court of equity should undertake cases of this kind; and the pre­ventive remedy is easy, by naming an administrator, or, as termed in the Roman law, curator bonorum. A similar example is, where a court of equity gives authority to sell the land of one under age, when the sale is necessary for payment of debt: to decline interpo­sing in this case, would be ruinous to the proprietor; for without it no man will venture to purchase from one under age. Here the mo­tive is humanity to a single individual: but it would be a great im­perfection in law, to abandon an innocent person to ruin when the remedy is so easy. In the cases governed by the motive of pu­blic utility, a court of equity interposes as a court properly, gi­ving or denying action, in order to answer the end proposed: but in the cases now mentioned, and in those that are similar, there is seldom occasion for a process; the court acts by magisterial powers.

The powers above set forth assumed by our courts of equity, are, in effect, the same that were assumed by the Roman Prae­tor, from necessity, without any express authority. ‘"Jus prae­torium est quod praetores introduxerunt, adjuvandi vel supplendi vel corrigendi juris Civilis gratia, propter utilitatem publicam *."’

[Page 46] Having given a historical view of a court of equity, from its ori­gin to its present extent of power and jurisdiction, I proceed to some other general matters, which must be premised before entering up­on particulars. The first I shall insist on is of the greatest moment, viz. Whether a court of equity be, or ought to be, governed by any general rules? To determine every particular case according to what is just, equal, and salutary, taking in all circumstances, is undoubt­edly the idea of a court of equity in its perfection; and had we an­gels for judges, such would be their method of proceeding, without regarding any rules: but men are liable to prejudice and error, and for that reason cannot safely be trusted with unlimited powers. Hence the necessity of establishing rules, to preserve uniformity of judgement in matters of equity as well as of common law: the neces­sity is perhaps greater in the former, because of the variety and intri­cacy of equitable circumstances. Thus though a particular case may require the interposition of equity to correct a wrong or supply a de­fect, yet the judge ought not to interpose, unless he can found his de­cree upon some rule that is equally applicable to all cases of the kind. If he be under no limitation, his decrees will appear arbitrary, though substantially just: and, which is still worse, will often be arbitrary, and substantially unjust; for such too frequently is the case of human proceedings when subjected to no control. General rules, it is true, must often produce decrees that are materially un­just; for no rule can be equally just in its application to a whole class of cases that are far from being the same in every circumstance: but this inconvenience must be tolerated, to avoid a greater, that of making judges arbitrary. A court of equity is a happy invention to remedy the errors of common law: but this remedy must stop some where; for courts cannot be established without end, to be checks one upon another. And hence it is, that, in the nature of things, there cannot be any other check upon a court of equity but general rules. Bacon expresses himself upon this subject with his usual ele­gance and perspicuity: ‘"Non sine causa in usum venerat apud Ro­manos album praetoris, in quo praescripsit et publicavit quo­modo ipse jus dicturus esset. Quo exemplo judices in curiis praetoriis, regulas sibi certas (quantum fieri potest) proponere, easque publice affigere, debent. Etenim optima est lex, quae minimum relinquit arbitrio judicis, optimus judex qui minimum sibi *."’

In perusing the following treatise, it will be discovered, that the con­nections [Page 47] regarded by a court of equity seldom arise from personal circumstances, such as birth, resemblance of condition, or even blood, but generally from subjects that in common language are denominated goods. Why should a court, actuated by the spirit of refined justice, overlook more substantial ties, to apply itself to the grosser connections solely, viz. those of interest? doth any connec­tion founded on property make an impression equally strong with that of friendship, of blood-relation, or of country? doth not the law of nature form duties on the latter, more binding in conscience than those formed on the former? Yet the more conscientious duties are left generally to shift for themselves, while the duties founded on interest are supported and inforced by courts of equity. This, at first view, looks like a prevailing attachment to riches; but it is not so in rea­lity. The duties arising from the connection last mentioned, are generally ascertained and circumscribed, so as to be susceptible of a general rule that governs all cases of the kind. This is seldom the case of the other natural duties; which, for that reason, must be left upon conscience, without receiving any aid from a court of equity. There are, for example, not many duties more firmly rooted in our nature than that of charity; and, upon that account, a court of equity will naturally be tempted to interpose in its behalf. But the extent of this duty depends on such a variety of circumstances, that the wisest heads would in vain labour to bring it under general rules: to trust, therefore, with any court a power to direct the charity of individuals, is a remedy which to society would be more hurtful than the disease; for instead of inforcing this duty in any regular manner, it would open a wide door to legal tyranny and oppres­sion. Viewing the matter in this light, it will appear, that such duties are left upon conscience, not from neglect or insensibility, but from the difficulty of a proper remedy. And when such duties can be brought under a general rule, I except not even gratitude, though in the main little susceptible of circumscription, we shall see afterward, that a court of equity declines not to interpose.

In this work will be found several instances where equity and utility are in opposition; and when that happens, the question is, Which of them ought to prevail? Equity, when it regards the in­terest of a few individuals only, ought to yield to utility when it regards the whole society. It is for that very reason that a court of equity is bound to form its decrees upon general rules; for this measure regards the whole society by preventing arbitrary pro­ceedings.

[Page 48] It is commonly observed, that equitable rights are less steady and permanent than those of common law: the reason will appear from what follows. A right is permanent or fluctuating, according to the circumstances upon which it is founded: while these remain the same, so doth the right; when these vary, the right varies with them: this is applicable to both kinds equally. But here lies the dif­ference. The circumstances that found a right at common law, be­ing always few and weighty, are not variable, nor easily changed: a bond of borrowed money, for example, must subsist till it be paid. A claim in equity, on the contrary, seldom arises without a multi­plicity of circumstances, which make it less steady; for if but a sin­gle circumstance be withdrawn, the claim is no more. Let us sup­pose, for example, that an infeftment of annualrent is assigned to a creditor for his security; the creditor or assignee thus secured, ought to draw his payment out of the interest before touching the capital; which is an equitable rule, because it is favourable to the assignor or cedent, without hurting the assignee. But if the cedent have another creditor who arrests the interest, the equitable rule now mentioned ceases, and gives place to another; which is, that the assignee ought to draw his payment out of the capital, leaving the interest to be drawn by the arrester. Let us next suppose, that the cedent hath a third creditor, who after the arrestment adjudges the capital. This new circumstance varies again the rule of equity: for though the ce­dent's interest weighs not in opposition to that of his creditor arrest­ing, the adjudging creditor and the arrester are upon a level as to every equitable consideration; and upon that account, the assignee, who is the preferable or catholic creditor, ought to deal impartially between them: if he chuse not to take his payment out of both sub­jects proportionally, but only out of the capital, or out of the inter­est, he ought to make an assignment to the postponed creditor, in or­der to redress the inequality; and if he refuse to do this act of justice, a court of equity will interpose.

This example shows the mutability of equitable claims: but there is a cause which makes them appear still more mutable than they are in reality. The strongest notion is entertained of the stability of a right of property; because no man can be deprived of his property but by his own deed. A claim of debt is understood to be stable, but in an inferior degree; because payment puts an end to it without the will of the creditor. But equitable rights, which commonly accrue to a man without any deed of his, are often lost in the same manner: and they will naturally be deemed transitory and fluctuating, when [Page 49] they depend so little on the will of the persons who are possessed of them.

In England, where the courts of equity and common law are dis­tinct, the boundary betwixt equity and common law, where the le­gislature doth not interpose, will remain always the same. But in Scotland, and other countries where equity and common law are uni­ted in one court, the boundary varies imperceptibly; for what origi­nally is a rule in equity, loses its character when, gathering strength by practice, it is considered as common law: thus the actio negotiorum gestorum, retention, salvage, &c. are in Scotland scarce now consider­ed as depending on principles of equity. But by the cultivation of society, and practice of law, nicer and nicer cases in equity being daily unfolded, our notions of equity are preserved alive; and the additions made to that fund, supply what is withdrawn from it, and transferred to common law.

What is now said suggests a question, not less intricate than im­portant, viz. Whether common law and equity ought to be com­mitted to the same or to different courts? The profound Bacon gives his opinion in the following words: ‘"Apud nonnullos receptum est, ut jurisdictio, quae decernit secundum aequum et bonum, atque illa altera, quae procedit secundum jus strictum, iisdem curiis de­putentur: apud alios autem, ut diversis: omnino placet curiarum separatio. Neque enim servabitur distinctio casuum, si fiat com­mixtio jurisdictionum: sed arbitrium legem tandem trahet *."’ Of all questions those which concern the constitution of a state, and its police, being the most involved in circumstances, are, for that rea­son, the most difficult to be brought under precise principles. I pretend not to deliver any opinion on this point; and feeling in my­self a bias against the great authority mentioned, I scarce venture to form an opinion. It may be not improper, however, to hazard a few observations preparatory to a more accurate discussion. I am thoroughly sensible of the weight of the argument used in the fore­going citation. In the science of jurisprudence, it is undoubtedly of great importance, that the boundary between equity and com­mon law be clearly ascertained; without which we shall in vain hope for just decisions. A judge who is uncertain, whether the case belong to equity or to common law, cannot have a clear concep­tion what judgment ought to be pronounced: but a court that judges of both, being relieved from determining this preliminary point, will be apt to lose sight altogether of the distinction be­tween [Page 50] common law and equity. On the other hand, may it not be urged, that the dividing among different courts things intimately connected, bears hard upon every man who has a claim to prosecute? Before bringing his action, he must at his peril determine an ex­treme nice point, viz. Whether the case be governed by common law, or by equity. An error in this preliminary point, though not fatal to the cause, because a remedy is provided, is, however, produc­tive of much trouble and expence. Nor is the most profound know­ledge of law sufficient altogether to prevent this evil; because it can­not always be foreseen what plea will be put in for the defendant, whether a plea in equity or at common law. In the next place, to us in Scotland it appears in some degree absurd, to find a court so constituted, that in many cases an iniquitous judgment must be the result. This not only happens frequently with respect to covenants, as above mentioned, but will always happen where a claim founded on common law, which must be brought before a court of common law, is opposed by an equitable defence which cannot be regarded by such a court. Weighing these different arguments with some at­tention, the preponderancy seems to be on the side of an united juris­diction. The sole inconvenience of an united jurisdiction, viz. that it tends to blend common law with equity, may admit a remedy, by an institute distinguishing, with accuracy, their boundaries: but the inconvenience of a divided jurisdiction admits not any effectual re­medy. These hints, at the same time, are suggested with the great­est diffidence; for I cannot be ignorant of the bias that naturally is produced by custom and established practice.

In Scotland, as well as in other civilized countries, the King's council was originally the only court that had power to remedy de­fects or redress injustice, in common law. To this extraordinary power the court of session naturally succeeded, as being the supreme court in civil matters; for in every well-regulated society, some one court must be trusted with this power, and no court more proper­ly than that which is supreme. It may at first sight appear surpri­sing, that no mention is made of this extraordinary power in any of the regulations concerning the court of session. Probably the thing was not intended nor thought of: the necessity, however, of such a power brought it in time to an establishment. That the court itself had at first no notion of being possessed of this privilege, is evident from the act of sederunt November 27. 1592, declaring, ‘"That in time coming they will judge and decide upon clauses irritant con­tained in contracts, tacks, infeftments, bonds, and obligations, [Page 51] precisely according to the words and meaning of the same;"’ which in effect was declaring themselves a court of common law, not of equity. But the mistake was soon discovered: the act of sederunt wore out of use; and now for more than a century, the court of session hath acted as a court of equity, as well as of common law. Nor is it rare to find powers unfolded in practice that were not in view at the institution of a court. When the Roman Pretor was created to be the supreme judge, in place of the consuls, there is no appearance that any instructions were given him concerning matters of equity. And even as to the English court of chancery, though originally a court of equity, there was not at first the least notion en­tertained of that extensive jurisdiction to which in later times it hath justly arrived.

In Scotland, the union of common law with equity in the supreme court, appears to have had an influence upon inferior courts, and to have regulated their powers with respect to equity. The rule in ge­neral is, That inferior courts are confined to common law: and hence it is that an action founded merely upon equity, such as a reduction upon minority and lesion, upon fraud, &c. is not competent before an inferior court. But if against a process founded on common law, an equitable defence be proponed, it is the practice of inferior courts to judge of such defence. Imitation of the supreme court, which judges both of law and equity, supported by the inconvenience of removing to another court a process that has perhaps long depend­ed, paved the way to this enlargement of power. Another thing al­ready taken notice of, tends to enlarge the powers of our inferior courts more and more; which is, that many actions, founded origi­nally on equity, have, by long practice, obtained an establishment so firm as to be reckoned branches of the common law. This is the case of the actio negotiorum gestorum, of recompence, and many o­thers, which, for that reason, are now commonly sustained in infe­rior courts.

Our courts of equity have advanced far in seconding the laws of nature, but have not perfected their course. Every clear and pal­pable duty is countenanced with an action; but many of the more refined duties, as will be seen afterward, are left still without reme­dy. Until men, thoroughly humanized, be generally agreed about these more refined duties, it is perhaps the more prudent measure for a court of equity to leave them upon conscience. Neither doth this court profess to take under its protection every covenant and agree­ment. Many engagements of various sorts, the fruits of idleness, [Page 52] without relation to what may be called business, are too trifling, or too ludicrous, to merit the countenance of law: a court, whether of common law or of equity, cannot preserve its dignity if it descend to such matters. Wagers of all sorts, whether upon horses, cocks, or accidental events, are of this sort. People may amuse themselves, and men of easy fortunes may pass their whole time in diversion, because there is no law against it; but such pastime, contrary to its nature, ought not to be converted into a serious matter, by bringing the fruits of it into a court of justice. This doctrine seems not to have been thoroughly understood, when the court of session, in a case reported by Dirleton, sustained action upon what is called there a sponsio ludicra. A man having taken a piece of gold, under condi­tion to pay back a greater sum in case he should ever be married, was after his marriage sued for performance. The court sustained pro­cess; though several of the judges were of opinion, that sponsiones lu­dicrae ought not to be authorised *. But in the following remarkable case, the court judged better. In the year 1698, a bond was exe­cuted of the following tenor: ‘"I Mr William Cochran of Kilmaro­nock, for a certain sum of money delivered to me by Mr John Stewart younger of Blackhall, bind and oblige me, my heirs and successors, to deliver to the said Mr John Stewart, his heirs execu­tors and assignees, the sum of one hundred guineas in gold, and that so soon as I, or the heirs descending of my body, shall succeed to the dignity and estate of Dundonald."’ This sum being claim­ed from the heir of the obligor, now become Earl of Dundonald, it was objected, That this being a sponsio ludicra ought not to be countenanced with an action. It was answered, That bargains like the present are not against law; for if purchasing the hope of suc­cession from a remote heir be lawful , it cannot be unlawful to give him a sum on condition of receiving a greater when he shall succeed. If an heir pinched for money procure it upon disadvantageous terms, equity, it is true, will relieve him: but in the present case there is no evidence, nor indeed suspicion, of inequality. It was replied, That judges of equity must act by a general rule, and must either con­demn by the lump such ludicrous bargains, or approve them by the lump: if they be indulged where they appear to be fair and equal, they must be indulged whatever their circumstances be; because no precise boundary can be fixed betwixt that degree of inequality which is permitted, and that which is condemned. In the next [Page 53] place, it tends not to the good of society to sustain action upon such bargains: they do not advance commerce, nor contribute in any de­gree to the comforts of life; why then should a court be bound to support them? It is sufficient that they are not reprobated, but left upon conscience and private faith. The court refused to sustain ac­tion; reserving it to be considered, whether the pursuer, upon pro­ving the extent of the sum given by him, be intitled to demand it back *.

The multiplied combinations of individuals in society suggest rules of equity so numerous and various, that in vain would any writer think of collecting all of them. From an undertaking which is in a good measure new, all that can be expected is a collection of some of the capital cases that occur the most frequently in law-proceedings. This collection will comprehend many rules of equity, some of them probably of the most extensive application. Nor will it be without profit, even as to subjects omitted; for by diligently observing the application of equitable principles to a number of leading cases, a habit is gradually formed of reasoning correctly upon matters of e­quity, which will enable us to apply the same principles to new cases as they occur.

The author having thus given a general view of his subject, shall finish with explaining his motive for appearing in public. Prac­tising lawyers, to whom the subject must already be familiar, require no instruction. This treatise is dedicated to the studious in general, such as are fond to improve their minds by every exercise of the rational faculties. Writers upon law are too much confined in their views: their works, calculated for lawyers only, are involved in a cloud of obscure words and terms of art, a language perfectly unknown except to those of the profession. Thus it happens, that the know­ledge of law, like the hidden mysteries of some ancient deity, is con­fined to its votaries; as if others were in duty bound to blind and implicit submission. But such superstition, whatever unhappy pro­gress it may have made in religion, never can prevail in law: men who have life or fortune at stake, take the liberty to think for them­selves; and are not less ready to accuse judges for legal oppression, than others for private violence or wrong. Ignorance of law hath in this respect a most unhappy effect: we all regard with partiality our own interest; and it requires knowledge not less than candour, to resist the thought of being treated unjustly when a court pronoun­ceth against us. Thus peevishness and discontent arise, and are vent­ed [Page 54] against the judges of the land. This, in a free government, is a dangerous and infectious spirit, to remedy▪ which we cannot be too solicitous. Knowledge of those rational principles upon which law is founded I venture to suggest, as a remedy not less efficacious than palatable. Were such knowledge universally spread, judges who ad­here to rational principles, and who, with superior understanding, can reconcile law to common sense, would be revered by the whole society. The fame of their integrity, supported by men of parts and reading, would descend to the lowest of the people; a thing devout­ly to be wished! Nothing tends more to sweeten the temper, than a conviction of impartiality in judges; by which we hold ourselves secure against every insult or wrong. By this means, peace and con­cord in society are promoted, and individuals are finely disciplined to submit with equal deference to all other acts of legal authority. Integrity is not the only duty required in a judge: to behave so as to make every one rely upon his integrity, is a duty not less essential. Deeply impressed with these notions, the author dedicates his work to every lover of science; and hath endeavoured to explain his sub­ject in a manner that requires in the reader no peculiar knowledge of municipal law. In that view he hath avoided terms of art; not in­deed with a scrupulous nicety, which might look like affectation, but so, he hopes, as that with the help of a law-dictionary, what he says may easily be apprehended.

ORDER, a beauty in every composition, is essential in a treatise of equity, which comprehends an endless variety of matter. To avoid obscurity and confusion, we must, with the strictest accuracy, bring under one view things intimately connected, and handle separately things unconnected, or but slightly connected. Two great princi­ples, justice and utility, govern the proceedings of a court of equi­ty; and every matter that belongs to that court, is regulated by one or other of these principles. Hence a division of the present work into two books, the first appropriated to justice, the second to utility. I propose a third book for certain subjects, which consist of parts too intimately connected to bear a separation; each of which is handled as one entire whole, instead of being broken into parts, and handled separately for illustrating one or other principle, as is done in the two first books.


Powers of a Court of Equity derived from the Principle of Justice.

IN the introduction occasion was taken to show, that a court of equity is necessary, first, to supply the defects of common law, and, next, to correct its rigour or injustice. The necessity in the former case is manifest from a principle, That where there is a right it ought to be made effectual; in the latter from another principle, That for every wrong there ought to be a remedy. In both the dispute generally turns upon pecuniary interest. But there is a legal interest which is not pecuniary; and which, for the sake of perspicuity, ought to be handled separately. In this view, the pre­sent book is divided into two parts. In the first are treated, the powers of a court of equity to supply defects and to correct inju­stice in the common law, with respect to pecuniary interest: and in the second, the powers of a court of equity with respect to matters of justice that are not pecuniary.

PART I. Powers of a court of equity to remedy the imperfections of common law with respect to pecuniary interest, by supplying what is defective, and correcting what is wrong.

THE imperfections of common law are so many and so various, that it will be difficult to bring them into any perfect order. The following arrangement, if not the best, seems at least to be na­tural and easy. In handling the powers of a court of law, those by which individuals are protected from harm seem naturally to take the lead, being of all legal powers the most essential to society; which may be divided into two chapters: 1. Imperfections of common law in protecting men from being harmed by others; 2. In protecting the weak of mind from harming themselves. Chap­ter 3. Imperfections of common law with respect to the natural du­ty of benevolence. 4. Imperfections with respect to deeds and co­venants. 5. With respect to statues. 6. With respect to transac­tions between debtor and creditor. 7. With respect to legal exe­cution. 8. Power of a court of equity to inflict punishment.

CHAP. I. Powers of a court of equity to remedy what is imperfect in common law, with respect to the protecting indivi­duals from injuries.

THE social state, however disireable, could never have taken place among men, were they not restrained by a moral princi­ple from injuring those of their own species. To abstain from in­juring others, is accordingly the primary law of society, inforced by the most vigorous sanctions: every culpable transgression of that law subjects the wrong-doer to reparation; and every intentional transgression subjects him, not only to reparation, but also to punish­ment.

[Page 57] The moral principle of abstaining from injuring others, naturally takes the lead in every institute of law; and as the inforcing that principle has been a capital object in establishing courts of justice, it is proper to commence a treatise of equity with examining in what cases the interposition of a court of equity is required to make it ef­fectual; which can only be where no remedy is provided at common law.

The ways are endless by which men may be hurt in their persons and in their property; but it is supposed, that there are very few cases but what may be brought under one or other of the follow­ing classes. First, Harm done in prosecuting one's own right or privilege. Second, Harm done without intending to prose­cute any right or privilege. Third, Undue influence employ'd for tempting or overawing others to sacrifice knowingly their own interest. Fourth, Fraud, deceit, or other artificial means, employ'd to make others act unknowingly against their interest.

SECTION I. Harm done by a man in prosecuting a right or privilege.

THE social state, which, on the one hand, is highly beneficial by the opportunity it affords for mutual aid and support, is, on the other, attended with some inconveniencies, as in those particular cases where a man cannot have the free exercise of a right or privi­lege without harming others. How far such exercise may be indul­ged by the law of our nature, is a question of nice discussion. That men are born in a state of freedom and independency, is an establish­ed truth; but whether that freedom and independency may not ad­mit of some limitation from the collision of opposite rights and privileges, deserves to be examined. If the free exercise of my rights be indulged me without regarding the harm that may ensue to ano­ther, that other is so far under my power, and his interest so far subjected to mine. On the other side, if I be restrained from the exercise of my rights and privileges in every case where harm may ensue to another, I am so far dependent upon that other, and my interest so far subjected to his. Here is a threatening appearance for civil society, that seems to admit no resource but force and vio­lence. Cases there certainly are that admit no other resource; as where in a shipwreck two persons lay hold of the same plank, one [Page 58] of whom must be thrust off that both may not go to the bottom. But upon the present supposition, we are not reduced to that deplo­rable dilemma; for nature has temper'd these opposite interests by a rule not less beautiful than salutary. This rule consists of two branches: the first is, That even the prosecution of my own right will not justify me in doing any action that directly harms another; and so far my interest yields to his: the second is, That in prosecu­ting my right I am not concerned with any indirect or consequential damage that another may suffer; and so far the interest of others yields to mine: I am sorry if my neighbour happen thus to suffer; but I feel no check of conscience on that account. The first branch resolves into a principle inculcated in the preliminary discourse, viz. That no interest of mine, not even the preservation of life itself, au­thorises me to do any mischief to an innocent person. The other branch is founded on expediency in opposition to justice; for if the possibility of harming others, whether foreseen or not foreseen, were sufficient to restrain me from prosecuting my own rights and privi­leges, men would be too much cramped in action, or rather would be reduced to a state of absolute inactivity.

This rule, which is far from being simple or obvious in its applica­tion, requires the illustration of various examples. I begin with ex­amples of the first branch. However profitable it may be to purge my superior field of water, yet it is universally admitted, that I can­not legally open a new passage for it into my neighbour's ground; because this is a direct damage to him: ‘"Sic enim debere quem me­liorem agrum suum facere ne vicini deteriorem faciat *."’ Where a river is interjected between my property and that of my neighbour, it is not lawful for me to alter its natural course, whether by throw­ing it upon my neighbour's ground, or by depriving him of it; be­cause these acts, both of them, are direct incroachments upon my neighbour's property. Neratius puts the case of a lake which in a rainy season overflows the neighbouring grounds, to prevent which on one side a bulwark is erected. And he gives his opinion, that if this bulwark have the effect, in a rainy season, to throw a greater quantity of water than usual upon the opposite grounds, it ought to be demolished . This opinion is undoubtedly well founded at com­mon law; because by the supposition the bulwark is directly preju­dicial to the neighbouring proprietor. But this rule strictly followed would bar many improvements; and for that reason there is room for the interposition of a court of equity to mitigate the common law [Page 59] upon the principle of utility. It will indulge me to raise a fence within my own property, to prevent my ground from being over­slow'd by a river when in flood, or by a lake: if this work tend at times to throw a greater weight of water upon my neighbour, he may fence his ground as I did.

The foregoing examples, being all of the same kind, are governed by a practical rule, That we must not throw any thing into our neighbour's ground, Ne immittas in alienum, as expressed in the Ro­man law. But the principle goes a great way further, obliging us to abstain from every operation that has directly the effect to make our neighbour's property useless or incomfortable to him. ‘"It seems the better opinion, that a brew-house, glass-house, chandler's shop, or stie for swine, set up in such inconvenient parts of a town that they cannot but greatly incommode the neighbourhood, are com­mon nuisances *."’ Neighbours in a town must submit to inconve­niences from each other; but they must be protected from extraor­dinary disturbances that render their property in a great measure use­less to them. Upon this principle the court was of opinion, that the working in the upper story of a large tenement with weighty ham­mers upon an anvil, is a nuisance; and it was decreed that the black­smith should remove at the next term .

Now as to the second branch of the rule: It is agreed by all, that where my property lies upon the side of a river that is gradually in­croaching upon me, I may fence my bank in order to prevent fur­ther incroachments; for this work does not tend to produce even in­direct or consequential damage: all the effect it can operate is, to prevent my neighbour from gaining ground on his side. A much narrower case is determined in the Roman law, That I may lawfully dig a pit in my own land for gathering water to my cattle, though it happens to intercept a spring that run under ground into my neighbour's field, and furnished him with water . For in this case the loss to my neighbour is consequential only by intercepting a be­nefit from him. For the same reason, I may build a house upon my march though it intercept the light from my neighbour's house; and a dry summer will not restrain me from the accustomed use of a rill running through my ground, though it may bring it so low as to be of no service to my neighbour.

But with regard to this branch of the rule, there is a limitation [Page 60] founded entirely upon equity; which is, That however lawful it may be for a man to exercise his right for his own benefit where the harm that ensues is only consequential; yet that the exercise is un­lawful if it be done intentionally to distress others, without any view of benefiting himself. Rights and privileges are bestow'd on us for our own good; but by no means for hurting our neighbours. Ma­levolence is condemned by all laws, natural and municipal: a ma­levolent act of the kind mentioned is condemned by the actor him­self in his sedate moments; and he finds himself in conscience bound to repair the mischief he has thus done. The common law, it is true, overlooks intention, considering the act in no other view but as a legal exercise of a right. But equity holds intention to be the capital part, being that which determines an action to be right or wrong; and affords reparation accordingly. Hence a general rule in equity, That justice will not permit a man to exercise his right where his intention is solely to hurt another; which in law-language is termed the acting in aemulationem vicini. In all cases of this nature, a court of equity will give redress by voiding the act, if that can be done; otherwise by awarding a sum in name of damages. We pro­ceed to examples.

A man may lawfully dig a pit in his own field in order to inter­cept a vein of water that runs below the surface into his neighbour's property, provided his purpose be to have water for his own use: but if his purpose be to hurt his neighbour without any view to bene­fit himself, the act is unlawful, as proceeding from a malevolent in­tention; and a court of equity will restrain him from this opera­tion *.

Upon the same principle is founded the noted practice, in a court of equity, of refusing to sustain an action at law unless the plaintiff can show an interest; for if he can take no benefit by the action, the presumption must be, that it is calculated to distress the defendant, and done in aemulationem vicini.

In order to establish the jus crediti in an assignee, and totally to divest the cedent or assignor, the law of Scotland requires, that notification of the assignment be made to the debtor, verified by an instrument under the hand of a notary termed an intimation. Before intimation the legal right is in the cedent, and the assignee has a claim in equity only. In this case, payment made to the cedent by the debtor igno­rant of the assignment, is in all respects the same as if there were no assignment: it is payment made to the creditor, which, in law, must [Page 61] extinguish the debt. But what if the debtor, when he makes pay­ment to the cedent before intimation, be in the knowledge of the assignment? The common law knows no creditor but him who is legally vested in the right; and therefore, disregarding the debtor's knowledge of the assignment, it will sustain the payment made to the cedent as made to the legal creditor. But equity teaches a dif­ferent doctrine. It was wrong in the cedent to take payment after he convey'd his right to the assignee: and though the debtor was only exercising his own right in making payment to the cedent, who is still the creditor; yet being in the knowledge of the assignment, the pay­ment must have been made intentionally to distress the assignee, without benefiting himself. A court of equity, therefore, correcting the injustice of common law, will hold as nothing the payment wrongously made to the cedent, and will oblige the debtor to make payment to the assignee.

With respect to this matter, there is a wide difference between the solemnities that may be requisite for vesting in an assignee a com­plete right to the subject, and what are sufficient to bar the debtor from making payment to the cedent. In the former view, a regular intimation in necessary, or some solemn act equivalent to a regular intimation, a process for example. In the latter view, the private knowledge of the debtor is sufficient; and hence it is, that a promise of payment made to the assignee, though not equivalent to a regular in­timation, is yet sufficient to bar the debtor from making payment to the cedent. The court went farther: they were of opinion, that the assignee having shown his assignment to the debtor, though with­out intimating the same by a notary, the debtor was thereby put in mala fide, and could not thereafter make payment to the cedent *. But historical knowledge of an assignment, where it falls short of ocular evidence, will scarce be sustained to put the debtor in mala side. And this rule is founded on utility: a debtor ought not to be furnished with pretexts against payment; and if private conviction of an assignment, without certain knowledge, were sufficient, private conviction would often be affected, to gain time, and to delay pay­ment.

SECT. II. Harm done by a person who has not in view to prosecute any right or pri­vilege.

IN tracing the history of courts of law with respect to this branch, one beforehand would conjecture, that common law should regard no acts injuring others in their rights and privileges, but where mischief is intended; neglecting acts that are culpable only, as having a foun­dation too slight for that law. But upon examination we discover a very different plan; so different as that damage occasioned even by the slightest fault is, and always was repaired in courts of common law. Nor ought we to be surprised at this extension of common law, which was no subtile refinement, but rather the contrary. In the criminal law, very little distinction was originally made between a criminal and a culpable act, even with respect to punishment *, not to talk of reparation. And this practice, so gross in reality as well as in ap­pearance, was conformable to the manners of those times; the pas­sion of resentment, in a fierce and lawless people, being roused by the slightest harm, and being too violent for any deliberate distinc­tion between intentional and culpable wrongs. In fact, both were e­qually subjected to punishment, even after the power of punishment was transferred to the magistrate. And of this we have a notable example in the lex Aquilia among the Romans: ‘"Qui servum a­lienum, quadrupedem aut pecudem, injuria occiderit; quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto ."’ Here the word injuria is interpreted, ‘"quod non jure factum est; i. e. si culpa quis occiderit ."’ The retrospect here may happen to be a great punishment; for the obliging a man who kills a lame horse not worth fifty shillings, to pay fifty pounds because the horse was of that value some months before, is evidently a punishment. And as even a culpa levissima subjects a man to the lex Aquilia , it is clear that the slightest fault by which damage ensues is punishable by that law. The lex Aquilia was accordingly held by all to be pe­nal; and for that reason no action upon it was sustained against the heir **. The only thing suprising is, to find this law continuing in force, without alteration or improvement, down to the reign of the Emperor Justinian. The Roman law was cultivated by men of the [Page 63] greatest genius, and was celebrated all over the world for its equi­table decisions: is it not amazing, that in an enlightened age such gross injustice should prevail, as to make even the slightest fault a ground for punishment?

When such was the common law of the Romans with regard to punishment, there can be no difficulty to assign a reason why that law was extended to reparation even for the slightest fault; and as little, to assign a reason why the same obtains in the common law of most European nations, the principles of which are borrowed from the Roman law. The penal branch, it is true, of wrongs that are culpable only, and not criminal, has been long abolished; having given way to the gradual improvement of the moral sense, which dictates, that where there is no intention to do mischief, there ought to be no punishment; and that the person who is hurt by a fault on­ly, not by a crime, cannot justly demand more than reparation. And as this is the present practice of all civilized nations, it is clear that the reparation of damage occasioned by acts of violence comes under courts of common law, which consequently is so far a bar to a court of equity.

And considering, that regulations restraining individuals from in­juring others and compelling them to perform their engagements, composed originally the bulk of common law *, it will not be sur­prising, that courts of common law took early under their cogni­sance every culpable act that occasions mischief; which was the more necessary, in respect that, punishment being laid aside, reparation is the only mean left for repressing a culpable act. Thus we find ample provision made by common law, not only against intentional mis­chief, but also against mischief that is only foreseen, not intended. And so far there is no occasion for a court of equity.

But it is not sufficient for the security of individuals in society, that a man himself be prohibited from doing mischief: he ought over and above to be careful and vigilant, that persons, animals, and things, under his power, do no mischief; and if he neglect this branch of his duty, he is liable to repair the mischief that ensues, equally as if it had proceeded from his own act. 1st, With respect to servants, it is the master's business to make a right choice, and to keep them under proper discipline; and therefore, if they do any mis­chief that might have been foreseen and prevented, he is liable. Thus, if a passenger be hurt by my servant's throwing a stone out of a win­dow in my house, or have his cloaths sullied by dirty water poured [Page 64] down upon him, the damage must be repaired by me at the first in­stance; reserving to me relief against my servant. But if a man be killed or wounded by my servant in a scuffle, I am not liable; unless it can be specified, that I knew him to be quarrelsome, and conse­quently might have foreseen the mischief. 2d, With respect to ani­mals, it is the proprietor's duty to guard them from doing harm; and if harm ensue that might have been foreseen, he is bound to re­pair the damage: as, for example, where he suffers his cattle to pa­sture in his neighbour's field; or where the mischief is done by a beast of a vicious kind; or even by an ox or a horse, which, contrary to its nature, he knows to be mischievous *. 3d, As to things, it is also the duty of the proprietor to keep them from doing harm. Thus both fiar and liferenter were made liable to repair the mischief occasioned to a neighbouring tenement by the fall of their house . It is the duty of a man who carries stones in a waggon along the highway, to pack them neatly, in order to prevent harm; and if, by careless package, a stone drop out and bruise a passenger, the man is liable. But as to cases of this kind, it is a good defence against a claim of reparation, that the claimant suffered by his own fault: ‘"Si quis aliquem evitans, magistratum forte, in taberna proxima se immisisset, ibique a cane feroce laesus esset, non posse agi canis nomine quidam putant: at si solutus fuisset, contra ."’ If a fierce bull of mine get loose, and wound a person, I am liable: but if a man break down my fence, and is hurt by the bull in my inclosure, I am not liable; for, by an unlawful act, he himself was the occasion of the hurt he suffered.

Thus, with respect to matters falling under the present section, it appears, that faults come under common law as well as crimes, and omissions as well as commissions; and therefore so far the common law appears complete, leaving no gleanings to a court of equity.

SECT. III. Undue influence employ'd for tempting or overawing persons to act knowing­ly against their interest.

THE imperfections of man are not confined to his corporeal part: he has weaknesses of mind as well as of body; and if the ta­king [Page 65] advantage of the latter, to distress a person by acts of violence, be a moral wrong, intitling the sufferer to reparation; it is not less so to take advantage of the former. Society could not subsist without such prohibition; and happy it is for man as a social being, that the prohibition with respect to both articles makes a branch of his nature.

For the sake of perspicuity, this section shall be split into two parts: the first, where a man, sway'd by a violent temptation, acts to his own prejudice; and the next, where he is overaw'd to act to his own prejudice.

ARTICLE I. Where a man, yielding to a temptation, acts knowingly against his own interest.

JEAN MACKIE, heiress of Maidland, having disponed several par­cels of land lying about the town of Wigton, to persons who were mostly innkeepers there, a reduction was brought, upon the head of fraud and circumvention, by her sister, next heir in virtue of a settle­ment. It came out upon proof, 1st, That Jean Mackie was a habi­tual drunkard; that she sold her very cloaths to purchase drink, scarce leaving herself a rag to cover her nakedness; and that, by tempting her with a few shillings, it was in the power of any one to make her accept a bill for a large sum, or to make her dispone any part of her land. 2dly, That the dispositions challenged were grant­ed for no adequate cause. The court accordingly voided these dis­positions *. Upon this case it ought to be observed, that though fraud and circumvention were specified as the foundation of this re­duction, which is a common but slovenly practice in processes of that sort; yet there was not the least evidence, that Jean was impo­sed upon or circumvened in any manner. Nor was there any neces­sity for recurring to such artifice: a little drink, or a few shillings to purchase it, would have tempted her at any time, drunk or sober, to dispone any of her subjects. And she herself, being called as a witness, deponed, that she granted these dispositions freely, know­ing well what she did. Where, then, lies the ground of reduction? Plainly here: It is undoubtedly an immoral act, to take advantage of weak persons who are incapable to resist certain temptations, thereby to strip them of their goods. To justify such an act, the consent of the person injured can have no authority, more than the consent of [Page 66] a child. With respect to the end, it is not less pernicious than theft or robbery.

ART. II. Where a man is overaw'd to act knowingly against his own interest.

IF it be a moral wrong to tempt a weak man to act against his in­terest, extortion is a wrong still more flagrant, by its nearer approach to open violence. What, therefore, only remains upon this article, is to illustrate it by examples.

Every benefit taken indirectly by a creditor, for the granting of which no impulsive cause appears but the money lent, will be voided as extorted. Thus an assignment to a lease was voided, being grant­ed of the same date with a bond of borrowed money, and acknow­ledged to have had no other cause *. At the time of granting an he­ritable bond of corroboration, the debtor engaged himself by a sepa­rate writing, That in case he should have occasion to sell the land, the creditor should have it for a price named. The price appeared to be equal; and yet the paction was voided, as obtained by extor­tion . Upon the same ground, a bond for a sum taken from the principal debtor by his cautioner, as a reward for lending his credit, was voided .

Rigorous creditors go sometimes differently to work. If they dare not venture upon greater profit directly than is permitted by law, they aim at it indirectly, by stipulating severe irritancies upon failure of payment. One stipulation of that sort which makes a great figure in our law, is, That if the sum lent upon a wadset or pledge be not repaid at the term covenanted, the property of the wadset or pledge shall, ipso facto, be transferred to the creditor in satisfaction of the debt. It is that paction, which in the Roman law is named lex commissoria in pignoribus, and which in that law seems to be totally reprobated . With us it must be effectual at common law, because there is no statute against it. But then, as it is a hard and rigorous condition, extorted from a necessitous debtor, a court of equity will interpose to give relief. And this can be done by following a general rule that is applicable to all cases of the kind; which is, to admit the debtor to redeem his pledge by payment, at any time, until a declara­tor be brought by the creditor, signifying his will to hold the pledge [Page 67] in place of his money. This process affords the debtor an opportuni­ty to purge his failure by payment; which is all that in fair dealing the creditor can demand. And thus the declarator serves a double purpose: it declares the creditor's option to take the land in place of his money; and it relieves the debtor from the hardship of a penal irritancy, by furnishing him an opportunity to pay the debt.

Hence it follows, that the power of redeeming the wadset or pledge belongs to the debtor, in all cases, whether the bargain be lucrative or not. A declarator being necessary, the property cannot thereby be transferred to the creditor, unless the debtor decline to re­deem his pledge: and this option he must have, whether the creditor have made profit or not by possession of the pledge. Supposing a proper wadset granted, by which the creditor makes more than the interest of his money; justice requires, that the debtor have a power to redeem even after the term limited, until the equity of redemption be foreclosed by a declarator; and if a declarator be necessary, as is proved, the debtor must have the same privilege, even where the cre­ditor has drawn less than his interest.

In equity, however, a material difference will be observed between a proper wadset with a pactum legis commissoriae, and a proper wadset where the term of redemption is not limited. In the latter case, the parties stand upon an equal footing: the creditor may demand his money when he pleases; and he has no claim for interest, because of his agreement to accept the rents instead of interest: the debtor, on the other hand, may redeem his land when he pleases, upon repay­ment of the sum borrowed, without being liable to any interest, be­cause of the said agreement. But the matter turns out differently in equity, where the power of redemption is by paction limited to a certain term. There being no limitation upon the creditor, he may demand his money when he pleases; and he has no claim for interest, even though the rents have fallen short of the interest. But if the debtor insist upon the equity of redemption after the term to which the redemption is limited; he must, beside repaying the sum borrow­ed, make good the interest, so far as the rent of the land has proved deficient. For impartiality is essential to a court of equity: if the one party be relieved against the rigour of a covenant, the other has the same claim: after taking the land from the creditor contrary to paction, it would be gross injustice to hold the paction good against him, by limiting him to less interest than he is intitled to by law up­on an ordinary loan *.

[Page 68] From what is said it will be clear, that a power of redeeming with­in a limited time annexed to a proper sale for an adequate price, can­not be exercised after the term limited for the redemption is past. The purchaser, to whom the property was transferred from the be­ginning, has no occasion for a declarator; nor doth equity require the time for redemption to be enlarged contrary to paction, in a case where an adequate price is given for the subject.

MANY other hard and oppressive conditions in bonds of borrowed money, invented by rigorous creditors for their own conveniency, without the least regard to humanity or equity, were repressed by the act 140. parl. 1592. And, by the authority of that statute, such pactions may be brought under challenge in courts of common law, against which otherwise no remedy could be afforded except in a court of equity.

It was perhaps the statute now mentioned which misled the court of session into an opinion, that it belongs to the legislature solely to repress such rigorous conditions in agreements as are stated above. One thing is certain, that immediately after the statute there is an act of sederunt, November 27. 1592, in which the court declares, ‘"That, in time coming, they will judge and decide upon clauses irritant contained in contracts, tacks, infeftments, bonds, and ob­ligations, precisely according to the words and meaning of the same."’ Such a resolution, proper for a court of common law, is inconsistent with the nature of a court of equity. The mistake was soon discovered: the act of sederunt wore out of observance; and now, for a long time, the court of session has acted as a court of equity in this as well as in other matters.

IT is usury by statute to bargain with a debtor for more than the legal interest; but it is not usury to take a proper wadset, even where the rent of the land exceeds the interest of the money. For the cre­ditor who accepts the rent instead of interest, takes upon himself the insolvency of the tenants; and the hazard of this insolvency, howe­ver small, saves from usury; which consists in stipulating a yearly sum certain above the legal interest. But though such a bargain, where the rent exceeds the legal interest, is not, strictly speaking, usury; it is rigorous and oppressive, and plainly speaks out the want of credit in the person who submits to it; upon which account, it might be thought a proper subject for equity, did we not reflect that all wadsets are not lucrative. When such is the case, what shall be [Page 69] the judge's conduct? Must he give an opinion upon every wadset according to its peculiar circumstances? or ought he to follow some rule that is applicable to all cases of the kind? The former opens a door to arbitrary proceedings: the latter fettering a judge, forces him often to do what is materially unjust. Here equity, regarding individuals, weighs against utility, regarding the whole society. The latter being by far the more weighty consideration, must pre­ponderate: and for that reason only are wadsets tolerated, even the most lucrative; for it is not safe to give any redress in equity.

This doctrine may be illustrated by a different case. A debtor standing personally bound for payment of the legal interest, is com­pelled to give an additional real security, by infefting the creditor in certain lands, the rent of which is paid in corn, with this proviso, ‘"That the creditor, if he chuse to levy the rents for his payment, shall not be subjected to an account, but shall hold the rents in lieu of his interest."’ This, from what is observed above, is not usury; because the value of the corn, however much above the in­terest in common years, may possibly fall below it. But as the cre­ditor is in all events secure of his interest by having his debtor bound personally, and may often draw more than his interest by le­vying the rent when corn sells high; equity will relieve against the inequality of this bargain. For here the court may follow a general rule, applicable to all cases of the kind, affording a remedy equally complete in every single case; which is, to oblige the creditor to ac­count for every farthing he receives more than his interest, and to im­pute the same into his capital. In the case of a proper wadset this rule would be unjust, because the creditor has a chance of getting less than his interest, which ought to be compensated with some benefit beyond the ordinary profit of money: and if the door be once opened to an extraordinary benefit, a precise boundary cannot be ascertained between more and less. But the covenant now mentioned is in its very conception oppressive; and the creditor may justly be deprived of the extraordinary benefit he draws from it, when he is, in all events, secure of the legal interest.

Pacta contra sidem tabularum nuptialium belong to this article. Such private pactions between the bridegroom and his father, contrary to the faith of the public treaty of marriage, are fraudulent as to the wife and children, who will be relieved upon the head of fraud. But the husband cannot be relieved upon that head, because as to him there is no fraud: he is relieved upon the head of extortion. [Page 70] Every such private paction is, by construction of law, extorted from him: and the construction is just, considering his dependent situa­tion; for the fear of losing his bride, leaves him not at liberty to refuse any hard terms that may be imposed by his father, who settles the estate upon him. The relief granted to the wife and children upon the head of fraud, comes properly under the follow­ing section; but for the sake of connection is introduced here. In a contract of marriage the estate was settled upon the bridegroom by his father; and the bride's portion was taken payable to the father, which he accepted for satisfaction of the debts he owed, and for provisions to his younger children. The son thereafter having privately before the marriage granted bond for a certain sum to the father, it was voided at the wife's instance, as contra fidem tabularum nuptialium *. Hugh Campbell of Calder, in the marriage-articles of his son Sir A­lexander, became bound to provide the family-estate to him and the heirs-male of the marriage, ‘"free of all charge and burden."’ He at the same time privately obtained from his son a promise to grant him a faculty of burdening the estate with L. 2000 Sterling to his younger children; which promise Sir Alexander fulfilled after the marriage, by granting the faculty upon a narrative ‘"of the promise, and that the marriage-articles were in compliance with the bride's friends, that there might be no stop to the marriage."’ In a suit against the heirs of the marriage for payment of the said sum, at the instance of Hugh's younger children, in whose favour the fa­culty was exerted, the defendants were assoilzied, the deed granting the faculty being in fraudem pactorum nuptialium . The following cases relate to the other branch, viz. oppression, intitling the hus­band to reduce deeds granted by himself. A man, after settling his estate upon his eldest son in that son's contract of marriage, warrant­ing it to be worth 8000 merks of yearly rent, did, before the mar­riage, take a discharge from his son of the said obligation. The estate settled on the son falling short of the rent warranted, he insist­ed in a process against his father's other representatives for voiding the discharge; and the same accordingly was voided, as contra fi­dem . A discharge of part of the portion before the marriage was solemnized, was voided as contra fidem, at the instance of the grant­er himself, because it was taken from him privately, without the con­currence of the friends whom he had engaged to assist him in the [Page 71] marriage-treaty *. In England the same rule of equity obtains; and it is held, that where the son, without privity of the father or parent, treating the match, gives a bond to refund any part of the portion, it is voidable . Thus the bridegroom's mother surrenders part of her jointure to enable her son to make a settlement upon the bride, and the bride's father agrees to give L. 3000 portion. The bridegroom, without privity of his mother, gives a bond to the bride's father, to pay back L. 1000 of the portion at the end of seven years. Decreed, That the bond shall be delivered up, as obtained in fraud of the marriage-agreement . On the marriage of Sir Henry Chancey's son with Sir Richard Butler's daughter, it was agreed, that the young couple should have so much for present maintenance. The son privately agrees with his father to release part. The agree­ment was set aside, though the son, as was urged, gave nothing but his own, and might dispose of his present maintenance as he thought fit .

I promise a man a sum not to rob me. Equity will relieve me, by denying action for payment; and by affording me an action for recalling the money, if paid. The latter action is, in the Roman law, styled, Condictio ob injustam causam. To take money for doing what I am bound to do without it, must be extortion: I hold the mo­ney sine justa causa, and ought in conscience to restore it. Thus it is extortion for a tutor to take a sum from his pupil's mother for grant­ing a factory to her **. And it was found extortion in a man to take a bond from one whose curator he had been, before he would deliver up the family-writings ††.

A bargain of hazard with a young heir, to have double or treble the sum lent, after the death of his father or other contingency, is not always set aside in equity; for at that rate it would be difficult to deal with an heir during the life of his ancestor. But if such bargain appear very unreasonable, it is set aside, upon payment of what was really lent, with interest ‡‡. One intitled to an estate after the death of two tenants for life, takes L. 350 to pay L. 700 when the lives should fall, and mortgages the estate as a security. Though both the tenants for life died within two years, yet the bargain being equal, [Page 72] no relief was given against it *. A young man, presumptive heir to an estate▪tail of L. 800 yearly, being cast off by his father, and desti­tute of all means of livelihood, made an absolute conveyance of his remainder in tail to I. S. and his heirs, upon consideration of L. 30 paid him in money, and a security for L. 20 yearly during the joint lives of him and his father. Though the father lived ten years after this transaction, and though I. S. would have lost his money had the heir died during his father's life, yet the heir was relieved against the conveyance . The plaintiff, a young man, who had a narrow allowance from his father on whose death a great estate was to de­scend to him in tail, having, in the year 1675, borrowed L. 1000 from the defendant, became bound, in case he survived his father, to pay the defendant L. 5000 within a month after his father's death, with interest thereafter; but that, if he did not outlive his father, the money should not be repaid. After the father's death, which happened anno 1679, the plaintiff brought his bill upon the head of fraud and extortion, to be relieved of this bargain, upon repayment of the sum borrowed, with interest. The cause came first before the Lord Nottinghame, who decreed the bargain to be effectual. But, upon a re-hearing before Lord Chancellor Jeffreys, it was insisted, That the clause freeing the plaintiff from the debt if he died before his father, did not in reason difference the case from any other bar­gain made by an heir of entail, to be performed at the death of the tenant in tail; for in all such cases the debt is lost of course, upon predecease of the heir of entail; and therefore that this clause, evi­dently contrived to colour a bargain which to the defendant him­self must have appeared unconscionable, was in reality a circum­stance against him. Though in this case there was no proof of fraud, nor of any practice used to draw the plaintiff into the bargain; yet, because of the unconscionableness of the bargain, the plaintiff was relieved against it . In the year 1730, the Earl of Peterbo­rough, then Lord Mordaunt, granted bond at London after the English form, to Dr William Abercromby, bearing, ‘"That L. 210 was then advanced to his Lordship; and that, if he should happen to survive the Earl of Peterborough his grandfather, he was to pay L. 840 to the Doctor, two months after the Earl's death; and if he, the Lord Mordaunt, died in the lifetime of the Earl, the obliga­tion was to be void."’ Upon the death of the Earl of Peterborough, [Page 73] which happened about five years after the date of the bond, an action was brought in the court of session against the Lord Mordaunt, now Earl of Peterborough, for payment; and the court, upon authority of the case immediately foregoing, unanimously judged, that the bond should only subsist for the sum actually borrowed, with the in­terest *.

SECT. IV. Fraud, deceit, or other artificial means, employ'd for making a man act un­knowingly against his interest.

IT is thought, that a court of common law seldom interposes in any of the cases that come under the section immediately foregoing; and the reason is, that whether a man be led against his own interest by a violent temptation or by extortion, there is still left to him in appearance a free choice. But with respect to the matters that belong to the present section, a man is led blindly against his own interest, and has no choice. This species of wrong, therefore, being more flagrant, is not neglected by courts of common law. It is according­ly laid down as a general rule in the English law, ‘"That without the express provision of any act of parliament, all deceitful practi­ces in defrauding another of his known right, by means of some artful device, contrary to the plain rules of common honesty, are condemned by the common law, and punished according to the heinousness of the offence ."’ Thus the causing an illiterate per­son to execute a deed to his prejudice, by reading it to him in words different from those in the deed, is a fraud, which a court of com­mon law will redress, by setting the deed aside. The same where a woman is deceived to subscribe a warrant of attorney for confessing a judgement, understanding the writing to be of a different import . In selling a house, it being a lie to affirm that the rent is L. 30 in­stead of L. 20, by which the purchaser is moved to give a greater price than the house is worth; this loss will be repaired by a court of common law, though the purchaser, by being more circumspect, might have prevented the loss.

[Page 74] In general, every covenant procured by fraud will be set aside in a court of common law. But with regard to covenants or agreements disregarded at common law, there can be no relief but in a court of equity. Thus a policy of insurance was set aside upon fraud by a bill in chancery *.

We next proceed to inquire, whether every deceitful practice to im­pose upon others comes under common law. Fraud consists in my persuading a man who has confidence in me, to do an act as for his own interest, which I know will have the contrary effect. But in whatever manner a man be deceived or missed, yet if he was not deceived by relying upon the friendship and integrity of another, it is not a fraud. Fraud therefore implies treachery, without which no artifice nor double dealing can be termed fraud in a proper sense. But there are double-fac'd circumstances without number, and other artful means, calculated to deceive, which do not involve any degree of treachery: when a man suffers himself to be deceived by such arti­fice, it must in some measure be his own fault, and bystanders are more apt to make him the object of their ridicule than of their sor­row; for which reason frauds of this inferior nature have been over­looked by common law. But as every attempt to deceive another to his prejudice is criminal in conscience, it is the duty of a court of equity to repress such deceit, by awarding reparation to the person who suffers. And utility pleads for reparation as well as equity; for if law were not attentive to repress deceit in its bud, corruption would gain ground, and even the grossest frauds would become too stubborn for law. It is this species of deceit, excluding treachery, that Lord Coke probably had in his eye , when he lays down the following doctrine, That all covins, frauds, and deceits, for which there is no remedy at common law, are and were always redressed in the court of chancery.

It is mentioned above, that a covenant procured by fraud will be set aside in a court of common law; and I now give instances where a covenant procured by deceit that amounts not to fraud, is set aside in a court of equity. A man having failed in his trade, compound­ed with his creditors at so much per pound, to be paid at a time cer­tain. Some of the creditors refusing to fulfil the agreement, a bill was brought by the bankrupt to compel a specific performance. But it appearing that he had underhand agreed with some of his creditors to pay their whole debts, in order that they might draw in the rest [Page 75] to a composition, the court would not decree the agreement, but dismissed the bill *. A purchase made by a merchant in the course of commerce will be effectual, however soon his bankruptcy follow, provided it was his intention by continuing in trade to pay the price. But if he had bankruptcy in view, and no prospect to pay the price, the bargain, brought about by a palpable cheat, will be reduced in a court of equity, and the subject be restored to the vender. The only thorny point is, to detect the animus of the purchaser to defraud the vender. In the case of Joseph Cave , the presumptive fraud was confined to three days before the cessio bonorum; but in that case Cave the purchaser was in good credit, till he demanded a meeting of his creditors in order to surrender his effects to them. There may however be other circumstances concurring with insolvency to enlarge that period. Gilbert Barclay merchant in Cromarty was in labouring circumstances, and owed much more than he was worth, when he made a purchase of salmon from Mackay of Bighouse; and before delivery, several of his creditors proceeded to execution against him. In a few days after delivery he made over the salmon to William Forsyth, another merchant of the same town, in part pay­ment of a debt due to Forsyth; who was in the knowledge that Bar­clay was in labouring circumstances, and that the price of the salmon was not paid. Execution thickened more and more upon him, and he broke in ten days or a fortnight after the salmon was delivered to Forsyth. From these circumstances the court presumed an intention in Barclay to defraud Bighouse: and considering that Forsyth's pur­chase was not made bona fide, they found him liable to pay to Big­house the value of the salmon .

Next of other transactions brought about by deceitful means. By a marriage-settlement A is tenant for life of certain mills, remainder to his first son in tail. The son, knowing of the settlement, encou­rages a person, after taking a thirty years lease of these mills, to lay out a considerable sum in new buildings, and other improvements, intending to take the benefit after his father's death. This is a de­ceit which equity discountenances; and therefore it was decreed, that the lessee should enjoy for the residue of the term that was cur­rent at the father's death . The defendant on a treaty of marriage [Page 76] for his daughter with the plaintiff, signed a writing comprising the terms of the agreement. Designing afterward to get loose from the agreement, he ordered his daughter to entice the plaintiff to deliver up the writing, and then to marry him. She obey'd; and the de­fendant stood at the corner of the street to see them go along to be married. The plaintiff was relieved on the point of deceit. A man having agreed to be bound for certain provisions in his son's contract of marriage, upon a promise from the son to discharge the same, which accordingly was done before the marriage; and after the mar­riage money having been lent to the son, upon the faith of the said provisions in his contract; the discharge was set aside at the instance of the creditors, as being a deceitful contrivance between father and son to entrap them *. In a suit by the indorsee of a note or ticket, the debtor pleaded compensation upon a note for the equivalent sum, granted him by the indorser, bearing the same date with that upon which the process was founded. The court deemed this a de­ceitful contrivance to furnish the indorser credit; and therefore refu­sed to sustain the compensation .

A having an incumbrance upon an estate, is witness to a subse­quent mortgage, but conceals his own incumbrance. For this wrong his incumbrance shall be postponed . As a security for borrowed money, to mortgage land as free when there is an incumbrance upon it, is a cheat in the borrower, to which cheat the incumbran­cer is accessory by countenancing the mortgage, and subscribing it as a witness. The hurt thus done to the lender by putting him off with a lame security, was properly repaired by preferring him before the incumbrancer. The following cases are of the same kind. A man lends his mortgage-deed to the mortgager, to enable him to borrow more money. The mortgagee being thus in combination with the mortgager to deceive the lender, is accessory to the fraud. And the hurt thereby done was properly repaired by postponing his mortgage to the incumbrance which the lender got for his money . A counsel having a statute from A which he conceals, advises B to lend A L. 1000 on a mortgage; and draws the mortgage with a covenant against incumbrances. The statute was postponed to the mortgage **. A being about to lend money to B on a mortgage, [Page 77] sends to inquire of D, who had a prior mortgage, whether he had any incumbrance on B's estate. If it be proved that D denied he had any incumbrance, his mortgage will be postponed *. An estate being settled by marriage-articles upon the children of the marriage, which estate did not belong to the husband, but to his mother; yet she was compelled in equity to make good the settlement; because she was present when the son declared that the estate was to come to him after her death, and because she was also one of the instrumen­tary witnesses .

SECT. V. Reparation to which persons are intitled who are harmed in their rights or privileges.

IN order to clear what need there may be of a court of equity with respect to the subject under consideration, it is proper to be pro­mised, that regulations for preventing harm cannot be other but pro­hibitory; and consequently cannot afford opportunity for the inter­position of any court of law till the wrong be committed. To restore the party injured to his former situation, where that method is prac­ticable, will be preferred as the most complete reparation. Thus goods stolen are restored to the owner; and a disposition of land procured by fear, or undue influence, is voided, in order that the disponer may be restored to his property. But it seldom happens that there is place for a remedy so complete: it holds commonly, as expressed in the Roman law, that factum infectum fieri nequit; and when that is the case, the person injured, instead of being restored to his former situa­tion, must be contented with an equivalent in money.

The first question that occurs upon this subject is, Whether, in a claim for reparation, consequential damage can be stated. Conse­quential damage is sometimes certain, sometimes uncertain. A house of mine rented by a tenant, is unlawfully demolished: the direct damage is the loss of the house: the consequential damage is the loss of the rent; which in this case is certain, because the unlawful act necessarily relieves the tenant from paying rent. Again, a man robs me of my horse: the direct damage is the horse lost to me: the con­sequential damage is the being prevented from making profit by [Page 78] him; which is not certain, because the opportunity of making pro­fit might have failed me, and possibly might have been neglected though it had offered. In the case first mentioned, the loss of the rent, being certain, comes properly under the estimation of actual damage; and consequently will never be excluded by a court of com­mon law. But consequential damage that is uncertain, is not al­ways taken into the account. And the reason follows: It is naturally incumbent upon the man who claims reparation, to prove the extent of the damage he has sustained; which cannot be done with respect to consequential damage, as far as uncertain. But as it is undoubt­edly a prejudice to be deprived of profit that probably might have been made; the claimant is in equity relieved of this proof, where the direct damage is the effect of a criminal act: every presumption is turned against the delinquent; and he is charged with every pro­bable article of profit, unless he can give convincing evidence that the profit claimed could not have been made. And this is conform­able to the rules of equity; for as the profits are rendered uncertain by a criminal act, the consequences of this uncertainty ought to af­fect the delinquent, and not his party who is innocent. Here is a fair opportunity for the interposition of equity. A court of common law cannot listen to any proof but what is complete, and cannot a­ward damages except as far as rendered certain by evidence. A court of equity, with respect to criminal acts, turns the uncertainty against the delinquent; and by that means affords complete reparation to the person injured. Thus, in a spuilzie, which is a claim for dama­ges in a civil court, founded on the violent abstraction of moveable goods, the profit that might have been made by the cattle or horses carried off, termed violent profits, makes always an article in the esti­mation of damage. The rule is different where the damage is occa­sioned by a culpable act only; for as there is nothing here to vary the rule of law, Quod affirmanti incumbit probatio, no article of profit will be sustained but what can be rendered certain by evidence. This, it is true, may possibly be prejudicial to the person who is hurt by the culpable act: but humanum est errare; and it is more expedient that he suffer some prejudice, than that men should be terrified from industry and activity, by a rigorous and vague claim a. This doc­trine [Page 79] is espoused by Ulpian *: ‘"Item Labeo scribit, si cum vi vento­rum navis impulsa esset in funes anchorarum alterius, et nautae funes praecidissent, si nullo alio modo, nisi praecisis funibus expli­care se potuit, nullam actionem dandam. Idemque Labeo, et Pro­culus, et circa retia piscatorum, in quae navis inciderat, aestima­runt. Plane, si culpa nautarum id factum esset, lege Aquilia a­gendum. Sed ubi damni injuria agitur, ob retia, non piscium, qui capti non sunt, fieri aestimationem; cum incertum fuerit, an caperentur. Idemque et in venatoribus, et in aucupibus pro­bandum."’ The following instance is an apt illustration of this doctrine. The Duke of Argyle's right of admiralty reaches over the western islands; on the coast of which a wrecked ship floating with­out a living creature in it, was laid hold of and sold by authority of the Duke's depute to one Robertson, who refitted the ship at a consi­derable charge, and provided a crew to carry her to Clyde. Sir Lu­dovick Grant, who had a deputation from the Admiral of Scotland, misapprehending the bounds of his jurisdiction, gave orders for seizing the ship as his property; and these orders were put in execu­tion after the ship was refitted by Robertson. As soon as the mis­take was discovered, the ship was redelivered. But Robertson, who lost considerably by the delay, brought a process against Sir Lu­dovick for damages, and obtained a decree for a large sum, to which the direct damage amounted. It was considered, that the defendant's error was culpable in acting rashly without duly exa­mining the limits of his jurisdiction, of which he might be easily ascertained by inspecting the Duke's title on record. But as to the consequential damage, viz. the profits Robertson could have made by the ship, had he not been unjustly deprived of the possession, which must be in a great measure uncertain, the court unanimously rejected this branch of the claim.

The next question is, Whether in estimating damage there be ground in any case for admitting the pretium affectionis. Paulus answers, That there is not: ‘"Si servum meum occidisti, non affectiones aestimandas esse puto, (veluti si filium tuum naturalem quis occiderit, quem tu magno emptum velles), sed quanti omnibus valeret. Sextus quoque Pedius ait, pretia rerum, non ex assectione, nec utilitate singulorum, sed communiter sungi. Itaque eum, qui filium natu­ralem possidet, non eo locupletiorem esse, quod eum plurimo, si alius possideret, redempturus fuit: nec illum, qui silium alienum [Page 80] possideat, tantum habere, quanti eum patri vendere posset: in lege enim Aquilia (damnum) consequimur, et amisisse dicemur, quod aut consequi potuimus, aut erogare cogimur *."’

As this response is given in general terms, without distinction of cases, it must be considered as declaratory of the common law. The same rule must obtain in equity where the wrong is culpable only. But in repairing mischief done intentionally, the pretium affectionis ought in equity to be admitted; because otherwise the person who suffers obtains no adequate reparation, and also because that other­wise there is no proper distinction made between a crime and a fault.

CHAP. II. Powers of a Court of Equity to remedy what is imperfect in common law, with respect to protecting the weak of mind from harming themselves by unequal bargains and irrational deeds.

THE weakness and imbecillity of some men make them a fit prey for the crafty and designing. But as every deed, cove­nant, or transaction, procured by undue influence, comes under the foregoing chapter, the present chapter is confined to cases where e­quity protects individuals from hurting themselves by their own weakness and imbecillity, without the intervention of any craft or un­due influence. And here, though, for the sake of commerce, utility will not listen to a complaint of inequality among majores, scientes, et prudentes; yet the weak of mind ought to be excepted; because such persons ought to be removed from commerce, and their trans­actions be confined to what is strictly necessary for their subsistence and well-being. And this is justly confining to the weak of mind a rule against inequality in bargains, which the Romans, ignorant of commerce, made general with respect to every person.

I begin with deeds granted by persons under age, who cannot be supposed mature in judgement. A reduction upon the head of mino­rity and lesion, unknown in the common law, is an action sustain­ed by a court of equity for setting aside any unequal transaction done [Page 81] during nonage. But inequality ought not to be regarded in a deed that proceeds from a virtuous and rational motive, which would be a laudable deed in one of full age. I give the following examples. A young man under age, having no means of his own, is aliment­ed and educated by a near relation, till he happens to succeed to an opulent fortune. Full of gratitude, he grants to his benefactor a re­muneratory bond for a moderate sum, and dies without arriving to full age. A court of equity will never give countenance to the heir in attempting to reduce this bond; for gratitude is a moral duty, and the young man was in conscience bound to make a grateful return. A court of equity, it is true, has not many opportunities to inforce the duty of gratitude, because it can seldom be brought under a general rule; but here a court of equity may safely interpose to support a grateful return, the extent of which is ascertained by the young man himself. I put another case. A man of an opulent fortune dies sud­denly without making provisions for his younger children. His eldest son and heir supplies this omission by giving suitable provi­sions, and dies under age. A third case may be supposed, where the rational motive is not altogether so cogent. A man of an opulent fortune dies suddenly leaving a numerous family of children, all of the female sex, without making provisions for them. A collateral heir-male succeeds, who supplies this omission by giving suitable provisions, but dies under age. A court of equity would deviate from the spirit of its institution, if it should authorise a reduction of such provisions by the granter's heir, upon the head of minority and lesion. For a rational and laudable deed never can be lesion in any proper sense.

The same doctrine is applicable to those who have a natural imbe­cillity which continues for life. A transaction made by such a per­son is not voided by a court of equity, unless it appear irrational and the effect of imbecillity. Where this is the case, it becomes indeed necessary that a court of equity interpose, though there can be no ge­neral rule for direction.

The protection afforded by equity to the weak in mind, is ex­tended to save them from hurting themselves by irrational settle­ments. The opinions of men with respect to the management of affairs, and the exercising acts of property, are not less various than their faces: and as the world is seldom agreed about what is right and wrong in such matters, there can be no rule for restraining the settlements of those who are not remarkably weak, unless such settlements be not only irrational but absurd. But as the weak and facile are [Page 82] protected from unequal bargains, there is the same reason for pro­tecting them from absurd settlements. Take the following example. In a process at the instance of a brother next of kin, for voiding a testament made by his deceased sister in favour of a stranger, it came out upon proof, that, some time before making the testament, the testatrix, being seized with madness, was locked up; and that not long after making the testament her madness recurred, and continued till her death; that at the time of the testament she was in a waver­ing state, sometimes better, sometimes worse; in some particulars ra­tional, in others little better than delirious, never perfectly sound of mind. In particular, it appeared from the proof, that when in bet­ter health, she expressed much affection for her brother the pursuer; but that, when the disease was more upon her, she appeared to have some grudge or resentment at him without any cause. The testament was holograph; and the scroll she copied was furnished by the de­fendant, in whose favour the testament was made, who had ready access to her at all times, while her brother lived at a distance. In reasoning upon this case it was yielded, that the woman was capable of making a testament, and that the testament challenged might be effectual at common law. But then it was urged, That though a testament made in the condition of mind above described, preferring one relation before another, a son before a father, or a sister before a brother, might be supported in equity as well as at common law; yet that the testament in question, proceeding not from rational views, but from a diseased mind occasioning a causeless resentment against the pursuer, ought not to be supported in equity, being a deed which the testatrix herself must have been ashamed of had she recovered her health. Weight also was laid upon the following circumstance, That the testament was made remotis arbitris, and kept a dead secret; which showed the defendant's consciousness, that had there been access to the testatrix, she would have been easily diverted from making so irra­tional a settlement. In this view, it was considered as a wrong in him to take from her, in these circumstances, such an irrational deed; and consequently, that he ought to be restrained in equity from taking any benefit by it. The testament was voided *.

A temporary weakness ought, for the time of its endurance, to have the same effect in law with one that is perpetual: for which reason a discharge obtained from a woman during the pains of childbirth was reduced; Fountainhall, 7th December 1686.

CHAP. III. Powers of a court of equity to remedy what is imperfect in common law, with respect to the natural duty of be­nevolence.

IN the introduction there was occasion to observe, that the vir­tue of benevolence is by various connections converted into a du­ty; and that duties of this kind, being neglected by the common law, are inforced by a court of equity. This opens a wide field of equity, boundless in appearance; and which would be so in reality as well as in appearance, were it not for one circumstance, That the duty of be­nevolence is much more limited than the virtue. The virtue of benevo­lence may be exercised by a great variety of good offices: it tends often to make additions to the positive happiness of others, as well as to relieve them from distress or want. But abstracting from positive engagement, the duty of benevolence is, with respect to pecuniary interest, confi­ned to the latter. No connection, no situation, nor circumstance, makes it my duty to increase the stock of any person who has already a sufficiency, or to make him locupletior, as termed in the Roman law. For even in the strictest of all connections, that of parent and child, I feel not that I am in conscience or in duty bound, to do more than to make my children independent, so as to preserve them from want a: all beyond is left upon parental affection. Neither doth gra­titude make it my duty to enrich my benefactor, but only to aid and support him when any sort of distress or want calls for help. A fa­vour is indeed scarce felt to be such, but when it prevents or relieves from harm; and a favour naturally is returned in kind.

[Page 84] Here is a clear circumscription of equity, as far as concerns the present chapter. A court of equity cannot force one man, whether by his labour or money, to add to the riches of another; because, abstracting from a promise, no connection ever makes this a duty. What then is left for a court of equity, is, in certain circumstances, to compel persons to save from mischief those they are connected with, or to relieve them from want or distress. Benevolence, in this case, is a strong impulse to afford relief; and, in this case, benevo­lence, assuming the name of pity or compassion, is, by a law in our na­ture, made a positive duty. In all other cases benevolence is a virtue only, not a duty: the exercise is left to our own choice; and the neglect is not punished, though the practice is highly rewarded by the satisfaction it affords. In this branch of our nature, a beautiful final cause is visible: the benevolence of man, by want of ability, is con­fined within narrow bounds; and in order to make the most of that slender power he has of doing good, it is wisely directed where it is the most useful, viz. to relieve others from distress.

It appears then, that equity, so far as concerns the duty of serving others, is not extended beyond pity or compassion. But it is cir­cumscribed within still narrower bounds; for compassion, though a natural duty, is not adopted in its utmost extent by courts of equity. In many cases, this duty is too vague and undetermined to be reached by human laws; and a court of equity pretends not to interpose, but where the duty, being clear and precise, can be brought under gene­ral rules *. Some of the connections that occasion duty so precise I shall proceed to handle, confining myself to those that are in some measure involved in circumstances; for the more simple connections, such as that of parent and child, require little or no elucidation. Though all the duties of this kind that are inforced by a court of equity, belong to the principle of justice; they may however be di­vided into different classes. The present chapter is accordingly divi­ded [Page 85] into two sections. In the first are handled connections that make benevolence a duty when not prejudicial to our interest. In the second are handled connections that make benevolence a duty even against our interest. These connections are distinguishable from each other so clearly, as to prevent any confusion of ideas; and the foregoing order is chosen, that we may pass gradually from the slighter to the more intimate connections. To prompt a man to serve those with whom he is connected, requires not any extraordinary motive, when the good office thwarts not his own interest: any slight connection is sufficient to make this a duty, and therefore such connections are first discussed. It requires a much stronger connection, to make it our duty to bestow upon another any part of our substance. Self-in­terest is not to be overcome but by connections of the most intimate kind, which therefore are placed last in order.

SECT. I. Connections that make benevolence a duty when not prejudicial to our interest.

THE connection I shall first take under consideration, is that which subsists between a creditor and a cautioner. The nature of this engagement, when punctually fulfilled, demands some gratitude from the creditor. The cautioner, when he pays the debt, suffers loss by the act of the creditor, though not by his fault; and it is the duty of the creditor, as far as consistent with his own interest, to assist the cautioner in operating his relief against the principal debtor. He ought, in particular, to convey to the cautioner, the bond with the execution done upon it, in order that the cautioner may the more speedily compel the principal debtor to relieve him. The law, fa­vouring this moral act, considers the money delivered to the creditor, not as payment, but as a valuable consideration for assigning his debt and execution to the cautioner. I cannot explain this better than in the words of Papinian, the most eminent of all the writers upon the Roman law: ‘"Cum possessor unus, expediendi negotii causa, tributorum jure conveniretur; adversus caeteros, quorum aeque praedia tenentur, ei, qui conventus est, actiones a fisco prae­stantur: scilicet ut omnes pro modo praediorum pecuniam tri­buti conferant: nec inutiliter actiones praestantur tametsi fiscus pecuniam suam reciperaverit, quia nominum venditorum pretium [Page 86] acceptum videtur *."’ From which consideration it evidently fol­lows, that this assignment may be demanded and granted ex post facto, if the precaution be omitted when the money is paid.

From the same principle it also follows, that the creditor is bound to convey to the cautioner every separate security he has for the debt; and consequently, that if the creditor discharge or pass from his sepa­rate security, the cautioner, so far as he suffers thereby, hath an ex­ception in equity against payment.

I must observe historically, that there are many decisions of the court of session, declaring the creditor not bound to grant the assign­ment first mentioned. These decisions, remote in point of time, will not be much regarded; because the rules of equity lay formerly in greater obscurity than at present. And there is an additional reason for disregarding them, that they are not consistent with others rela­ting to the same subject. If it be laid down as a rule, That the credi­tor is not bound to assign his bond and execution, however beneficial such assignment may be by giving the cautioner ready execution a­gainst the principal debtor; it ought to follow, that neither is he bound to assign any separate security: if it be not his duty to serve the cautioner in the one case, it cannot be his duty to serve him in the other. And yet it is a rule established in this court, That the cau­tioner, making payment of the debt, is intitled to every separate se­curity of which the creditor is possessed. One is at no loss to discover the cause of this discrepancy: when the question is about a separate security upon which the cautioner's relief may wholly depend, the principle of equity makes a strong impression: its impression is slighter when the question is only about assigning the bond, which has no other effect but to save a formal process.

It is of the greater consequence to settle with precision the equi­table rule that governs questions between the creditor and cautioner, because upon it depends wholly, in my apprehension, the mutual re­lief between co-cautioners. Of two cautioners bound for the same debt at different times, and in different deeds, one pays the debt up­on a discharge without an assignment: where is the legal founda­tion that intitles this man to claim the half from his fellow-caution­er? The being bound in different deeds affords no place for suppo­sing an implied stipulation of mutual relief: nay, supposing them bound in the same deed, we are not from that single circumstance to imply a mutual consent for relief, but rather the contrary when the clause of mutual relief is omitted; for, in general, when an ob­vious [Page 87] clause is left out of a deed, it is natural to ascribe the omission to design rather than to forgetfulness. The principal debtor is ex mandato bound to relieve all his cautioners: but there is no medium at common law, by which one cautioner can demand relief from another. And with respect to equity, the connection of being bound for payment of the same debt, is too slight to intitle that cautioner who pays the whole debt, to be indemnified in part out of the goods of his fellow. It appears then, that the claim of mutual relief a­mong co-cautioners, can have no foundation other than the obliga­tion upon the creditor to assign upon payment. This assignment in the case of a single cautioner must be total; in the case of several must be pro rata; because the creditor is equally connected with each of them. The only difficulty is, that at this rate, there is no mu­tual relief unless an assignment be actually given. But this difficul­ty is easily surmounted. We have seen above, that such assignment may be granted ex post facto: hence it is the duty of the creditor to grant the assignment at whatever time demanded; and if the credi­tor prove refractory, the law will interpose to hold an assignment as granted, because it ought to be granted. And this suppletory or implied legal assignment, is the true foundation of the mutual re­lief among co-cautioners, which obtains both in Scotland and Eng­land.

Utility also concurs to support this equitable claim: no situation with regard to law would be attended with more pernicious conse­quences, than to permit a creditor to oppress one cautioner and re­lieve others: judges ought to be jealous of such arbitrary powers, which will generally be directed by bad motives; often by resent­ment, and, which is still worse, more often by avarice. It is hap­py therefore for mankind, that two different principles coincide in matters of this kind, to put them upon a just and salutary footing.

The creditor, as has been said, being bound to all the cautioners equally, cannot legally give an assignment to one of them in such terms as to intitle him to claim the whole from the other cautioners. In what terms then ought the assignment to be granted? or when granted without limitation, what effect ought it to have in equity? This is a question of some subtilty. To permit the assignee to de­mand the whole from any single co-cautioner, deducting only his own part of the debt, is unequal; because it evidently gives the as­signee an advantage over his fellow-cautioners. On the other hand, the assignee is in a worse situation than any other of the cautioners, if he must submit to take from each of them separately his propor­tion [Page 88] of the debt: upon this plan, the cautioner who pays the debt, is forc'd to run the circuit of all his co-cautioners; and if one or two prove insolvent, he must renew the suit against the rest, to make up the proportions of those who are deficient. To preserve therefore a real equality among the cautioners, every one of them against whom relief is claimed, ought to bear an equal proportion with the as­sagnee. To explain this rule, I suppose six cautioners bound in a bond for six hundred pounds. The first paying the debt is intitled to claim the half from the second, who ought to be equally bur­dened with the first. When the first and second again attack the third, they have a claim against him each for a hundred pounds; which resolves in laying the burden of two hundred pounds upon each;—and so on till the whole cautioners be discussed. This method not only preserves equality, but avoids after-reckonings in case of in­solvency.

So far clear when relief can be directly obtained. But what if the assignee be put to the trouble of adjudging for his relief? In that case, the assignment is a legal title to lead an adjudication for the whole debt. Equity is satisfied, if, by virtue of the adjudication, no more be actually drawn out of the estate of any of the co-cau­tioners, than that co-cautioner is bound to contribute as above. And in leading the adjudication, not even the adjudger's own proportion of the debt ought to be deducted: it is a benefit to the other caution­ers that the security be as extensive as possible; for it intitles the ad­judger to a greater proportion of the subject or price, in competition with extraneous creditors.

The same principles and conclusions are equally applicable to cor­rei debendi, where a number of debtors are bound conjunctly and se­verally to one creditor. Equity requires the utmost impartiality in him to his debtors: if for his own ease he take the whole from one, he is bound to grant an assignment precisely as in the case of co-cautioners. Utility joins with equity to inforce this impartiality. And it makes no difference whether the correi debendi be bound for a civil debt or be bound ex delicto; for in both cases equally it is the duty of the creditor to act impartially, and in both cases equally uti­lity requires impartiality.

Another connection, of the same nature with the former, is that between one creditor who is infeft in two different tenements for his security, and another creditor who hath an infeftment on one of the tenements, of a later date. Here the two creditors are connected, [Page 89] by having the same debtor, and a security upon the same subject. Hence it follows, as in the former case, that if the preferable credi­tor chuse arbitrarily to draw his whole payment out of that subject in which the other creditor is infeft, the latter for his relief is intitled to have the preferable security assigned to him: which can be done upon the construction above mentioned; for the sum recovered by the preferable creditor out of the subject on which the other creditor is also infeft, is justly understood to be advanced by the latter, be­ing a sum which he was intitled to, and must have drawn had not the preferable creditor interposed; and this sum is held to be the purchase-money of the said conveyance. This construction, preser­ving the preferable debt entire in the person of the second creditor, intitles him to draw payment of that debt out of the other tenement; and by this equitable construction, matters are restored to the same state as if the first creditor had drawn his payment out of the sepa­rate subject, leaving the other entire for payment of the second credi­tor. Utility also, as said above, concurs to support this equitable claim.

It is scarce necessary here to observe, that a supposed conveyance, which may be sufficient, as above mentioned, to found a claim of relief among co-cautioners, will not answer in the present case. In order to found an execution against land, there must be an infeft­ment; and this infeftment must be convey'd to the person who de­mands execution. Any just or equitable consideration may be suf­ficient to found a personal action; but even personal execution can­not proceed without a formal warrant, and still less real execution.

But now, admitting it to be the duty of the preferable creditor to grant an assignment, the question is, To what extent? Whether ought the assignment to have a total effect, or only to restore the disappoint­ed creditor to that situation he would have been in, had the prefer­able creditor drawn his payment proportionally out of both sub­jects? It will be made appear by and by, that the assignment must be confined to the latter effect in the case of two secondary creditors. But there is no equity to limit the assignment in this manner, where there is no interest in opposition but that of the debtor. He has no equitable interest to oppose a total assignment; and the second creditor has an equitable claim to all the aid the first creditor can af­ford him.

The rules of equity must be the same in every country where law is cultivated. By the practice of England * ▪ if the creditors sweep [Page 90] away the personal estate, the real estate will be charged for payment of the legacies. In this case, the legatees need no assignment to found their equitable claim against the heir who succeeds to the real estate.

We proceed to another connection, which is that between the pre­ferable creditor infeft on both tenements, and two secondary credi­tors, one infeft in one of the tenements, and one in the other. The duty of the preferable or catholic creditor, with relation to these se­condary creditors, cannot be doubtful, considering what is said a­bove. Equity as well as expediency bars him from arbitrary mea­sures. He is equally connected with his two fellow-creditors, and he must act impartially between them. The regular method is, that he draw his payment proportionally out of both tenements; but if, for his own ease or conveniency, he chuse to draw the whole out of one, the postponed creditor is intitled to an assignment; not in­deed total, which would be an arbitrary act, but proportional, so as to intitle the assignee to draw the same sum out of the other subject, which he would have drawn out of his own, had the preferable cre­ditor contented himself with a proportional draught out of both sub­jects. I need scarce mention, that the same rule which obtains in the case of secondary creditors, must equally obtain among purchasers of different parcels of land, which before the purchase were all in cumulo burdened with an infeftment of annualrent. The same rule of equity is acknowledged in England. A man grants a rent-charge out of all his lands, and afterward sells them by parcels to diverse persons: the grantee of the rent-charge levies his whole rent from one of these pur­chasers: this purchaser shall be eased in equity by a contribution from the rest of the purchasers *.

A case connected with that last handled must not be overlooked, because it will throw light upon the present subject. Let it be sup­posed, that the catholic or preferable creditor purchases one of the secondary debts; will this vary the rule of equity? This purchase in itself lawful, is not prohibited by any statute, and therefore must have its effect. The connection here between the creditors is by no means so intimate, as to oblige any one of them, at the expence of his own interest, to serve the others. There is no rule in equity to bar the catholic creditor from drawing full payment of the secondary debt out of the tenement which it burdens, reserving his catholic debt to be made effectual out of the other tenement; though of con­sequence the secondary creditor upon that tenement is totally disap­pointed. [Page 91] This secondary creditor has no claim for an assignment, total or partial, when the interest of the catholic creditor stands in opposition. But here the connection among the parties must, in my apprehension, have the following equitable operation, that the catho­lic creditor, by virtue of his purchase, cannot draw more than the sum he paid for it. Equity in this case will not allow the one to pro­fit by the other's loss. But a hint here must suffice; because the point belongs more properly to another head *.

The following case proceeds upon the principle above laid down. The husband, on the marriage, charged the lands with a rent-charge for a jointure to his wife, and afterward devised part of these lands to the wife. After the husband's death the heir prayed that the lands devised to the wife might bear their proportion of the rent-charge: the bill was dismissed, because the grantee of the rent-charge may di­strain in all or any part of the lands for her rent; and there is no e­quity to abridge her remedy .

If the catholic creditor, after the existence of both secondary debts, renounce his infeftment with respect to one of the tenements, which makes a clear fund for the secondary creditor secured upon that te­nement; such renunciation ought to have no effect in equity against the other secondary creditor, because it is an arbitrary deed, and a direct breach of that impartiality which the catholic creditor is bound to observe with relation to the secondary creditors. It is in effect the same with granting a total assignment to one of the secondary creditors against the other.

In every one of the cases above mentioned, the catholic creditor is equally connected with each of the secondary creditors, and upon that account is bound to act impartially between them. But this rule of equity cannot take place where the connections are unequal. It holds here as among blood-relations; those who are nearest to me are intitled to a preference in my favour. The following case will be a sufficient illustration. A man takes a bond of borrowed money with a cautioner; obtains afterward an infeftment from the princi­pal debtor as an additional security; and last of all, another creditor for his security obtains infeftment upon the same subject. Here the first-mentioned creditor has two different means for obtaining pay­ment: he may apply to the cautioner, or he may apply to the land in which he is infeft. He proceeds to execution against the land, by which he cuts out the second creditor. Is he bound to grant an as­signment [Page 92] to the second creditor against the cautioner, total or partial? The second creditor is in this case not intitled to demand an assign­ment: on the contrary, the preferable creditor, taking payment from the cautioner, is bound to give him a total assignment; because he is more intimately connected with the cautioner than with the second creditor. A cautionary engagement is an act of pure benevolence; and when a creditor lays hold of this engagement to oblige one man to pay another's debt, this connection makes it evidently the duty of the creditor to aid the cautioner with an assignment, in or­der to repair his loss; and it proceeds from the same intimacy of con­nection, that, as above mentioned, he is obliged to include in this assignment every separate security he has for the debt. It is his du­ty accordingly to convey to the cautioner the real security he got from the principal debtor. Nor is the interest of the second creditor regarded in opposition; for he is no other way connected with the preferable creditor, but that both of them are creditors to the same person, and that both of them are infeft on the same subject for se­curity.

A question of great importance that has frequently been canvassed in the court of session, appears to depend upon the principles above set forth. The question is this, Whether a tenant in tail be bound to extinguish the annual burdens arising during his possession, so as to transmit to the heirs of entail the estate in as good condition as when he received it? To treat this question accurately, we must be­gin with considering how the common law stands. In the first place, feu-duties, cess, and teind, are debita fructuum, and at common law afford an action for payment against every person who levies the rents, and against a tenant in tail in particular. With respect then to the foregoing articles, there is no occasion for equity: the common law burdens every tenant in tail with what of them become due during his possession.

The entailer's personal debts are not a burden upon the fruits, but only upon the heirs of entail personally; and therefore the forego­ing medium for making the tenant in tail liable to relieve the heirs of entail of the current interest, fails here; and the question is, Whether there be any other medium subjecting him at common law? We must separate from this question, the division of burdens between heir and executor. If a tenant in tail leave any moveable estate, it will no doubt be charged at common law with the arrears of interest, and with every moveable sum, principal or interest. But supposing that no moveable estate is left, and that the tenant in tail dies, leaving [Page 93] a land-estate of his own, descending to a different series of heirs who do not represent the entailer: in this case, the arrears of interest ari­sing from the entailer's debts, must, with the principal, remain a debt upon the entailed estate at common law; unless it can be made out, that the tenant in tail became bound to relieve the heirs of entail of these arrears, in which case the arrears will be a charge upon his own estate.

An heir in a fee-simple is▪ no doubt, liable to the debts of his pre­decessor, and every heir is so liable successively. But this obligation respects the creditors only, and affords no relief to one heir against another either for principal or interest. Does an entail make a differ­ence at common law? A tenant in tail possesses the rents: but these rents are his own property just as much as if the estate were a fee-simple; and the consuming rents belonging to himself cannot sub­ject him as tenant in tail more than if his estate were a fee-simple. Hence it appears clear, that at common law a tenant in tail is not bound to relieve the heirs of entail of any growing burden, unless what is a debitum fructuum.

A court of equity, less confined than a court of common law, finds that this case is resolvable into one above determined, viz. that of correi debendi, where several debtors are conjunctly bound for pay­ment of one debt. There is no other difference between this case and heirs of entail, but that the former are all of them liable at the same time, whereas the latter are only liable successively for payment of the entailer's debts, one after another; which makes no difference either in equity or in expediency, the same impartiality being requi­red of the creditor with respect to both. While the debt subsists, the creditor is bound to lay the burden of his interest upon each heir equally; and consequently each heir is bound to pay the interest that arises during his time. And if the principal be demanded, the heir who pays is only intitled to an assignment of the principal sum, and of the interest that shall arise after his own death. This rule accor­dingly obtains in England, as where a proprietor of land, after char­ging it with a sum of money, devises it to one for life, remainder to another in fee. Equity will compel the tenant for life to pay the ar­rears due on the rent-charge, that all may not fall upon the remain­der man *.

A tenant by curtesy is, like a tenant in tail, bound to extinguish the current burdens. The curtesy is established by customary law; and a court of equity is intitled to supply any defect in law, whether writ­ten [Page 94] or customary, in order to make the law rational. The law, by authorising the husband's possession of the wife's estate, intends no more but to give him the enjoyment of it for life, without waste, con­fining him to act like a bonus paterfamilias *.

The following case seems to require the interposition of a court of equity; and yet whether its powers reach so far is doubtful. A man assigns to a relation of his L. 500 contained in a bond, without power of revocation, reserving only his own liferent. Many years after, forgetting the assignment, he makes a will, naming this same rela­tion his executor and residuary legatee, bequeathing in the testament the foresaid bond of L. 500 to another relation. The testator's ef­fects, abstracting from the bond, not exceeding in value L. 500, it becomes to the executor nominate a matter indifferent, whether he accept the testament, or betake himself to his own bond. But it is not indifferent to others; for if he undertake the office of executor, he must convey the bond to the special legatee; if he cling to the bond, rejecting the office, the testament falls to the ground, and the next of kin will take the effects, leaving nothing to the special legatee. The interest of others ought not to depend on the arbitrary will of the executor nominate; and yet, as far as appears, there is no place here for the interposition of equity. The privilege of accepting or reject­ing a right no man can be deprived of; and, admitting this pri­vilege, the consequences that follow seem to be out of the reach of equity.

Land-estates that are conterminous, form such a connection be­tween the proprietors, as to make certain acts of benevolence their duty, which belong to the present subject. To save my ground from water flowing upon it from a neighbouring field, a court of equity will intitle me to repair a bulwark within that field, provided the re­paration damage not the proprietor . The following is a similar case. The course of a rivulet which serves my mill happens to be diverted, a torrent having filled with stones or mud the channel in my neighbour's ground above. I will be permitted to remove the obstruction though in my neighbour's property, in order to re­store the rivulet to its natural channel. My neighbour is bound to suffer this operation, because it relieves me from damage without harming his property.

But in order to procure any actual profit, or to make myself locu­pletior, equity will not interpose or intitle me to make any alteration [Page 95] in my neighbour's property, even where he cannot specify any pre­judice by the alteration. The reason is given above, That equity ne­ver obliges any man, whether by acting or suffering, to increase the riches of another. Thus the Earl of Eglinton having built a mill upon the river of Irvine, and stretched a dam-dike cross the channel, which occasioned a restagnation to the prejudice of a superior mill, Fairly the proprietor of this mill brought a process, complaining that his mill was hurt by the back-water, and concluding that the Earl's dam-dike be demolished, or so altered as to give a free course to the river. The restagnation being acknowledged, the Earl proposed to raise the pursuer's mill-wheel ten inches, which would make the mill go as well as formerly; offering security at the same time against all future damage; and urged, that to refuse submitting to this altera­tion would be acting in aemulationem vicini, which the law doth not in­dulge. The court judged the defendant's dam-dike to be an in­croachment on the pursuer's property, and ordained the same to be removed or taken down as far as it occasioned the restagnation *.

SECT. II. Connections that make benevolence a duty even against our interest.

THese connections must be very intimate; for, as observed in the beginning of the present chapter, it requires a much stronger connection to oblige us to bestow upon another any portion of our substance, than merely to do a good office which takes nothing from us. The bulk of these connections, though extremely various, may, I imagine, be brought under the following heads. 1st Connections that intitle a man to have his loss made up out of our gain. 2d, Connections that intitle a man who is not, properly speaking, a lo­ser, to partake of our gain. 3d, Connections that intitle one who is a loser to a recompence from one who is not a gainer.

ART. I. Connections that intitle a man to have his loss made up out of our gain.

No personal connection, however intimate, supposing even that of parent and child, can make it an act of justice, that one who [Page 96] is a gainer should repair the loss sustained by another, unless there be also some connection between the loss and gain; and this connec­tion is a capital circumstance in the present speculation. The con­nections hitherto mentioned relate to persons; this relates to things. If, for example, I lay out my money for meliorating a subject which I consider to be my own, but which is afterward discover­ed to be the property of another; my loss in this case is intimate­ly connected with his gain, because in effect my money comes in­to his pocket.

The connection between the loss and gain may be more or less intimate: and its different degrees of intimacy ought to be care­fully noted; because it is reasonable to presume, what will be found true by induction, that where-ever it becomes a man's duty to apply his gain for repairing another's loss, there must be an intimate connection between loss and gain. When this connection is found in the highest degree, there is scarce requisite any other circumstance to found the duty: in its lower degrees no duty a­rises, unless the persons be otherwise strongly connected. Proceed­ing then to trace these degrees, the lowest I shall have occasion to mention, is where the loss and gain are connected by their relation to the same subject. For example, a man purchases at a low rate one of the preferable debts upon a bankrupt estate; and upon a sale of the estate draws more than the transacted sum: he gains while his fellow-creditors lose considerably. The next degree going upward, is where my gain is the occasion of another's loss. For example, a merchant foreseeing a scarcity, purchases all the corn he can find in the neighbourhood, with a view to make great profit: before he o­pens his granaries, I import a large cargo from abroad, parcelling it out at a moderate price, under what my brother-merchant paid for his cargo; by which means he loses considerably. The third, pretty much upon a level with the former, is where another's loss is the oc­casion of my gain. For example, my ship loaded with corn proceeds, in company with another, to a port where there is a scarcity: the o­ther ship being foundered in a storm, and the cargo lost, my cargo by that means draws a better price. The fourth connection is more intimate, the loss and the gain proceeding from the same cause. In the case last mentioned, suppose the weaker vessel, dashed against the other in a storm, is sunk: here the same cause by which the one pro­prietor loses, proves beneficial to the other. The last connection I shall mention, and the completest, is where that which is lost by the one is gained by the other; or, in other words, where the money of [Page 97] which the one is deprived is converted to the other's benefit. This is the case first of all mentioned, of money laid out by a bona fide posses­sor, in meliorating a subject which is afterward claimed by the pro­prietor. The money that the former loses is gained by the latter.

A famous maxim of the Roman law, Quod nemo debet locupletari ali­ena jactura, belongs to this article: and in order to ascertain, if it can be done, what are the connections that make it the duty of one man to part with his gain for repairing another's loss, I shall begin with a commentary upon that maxim. The first observation is, That it is expressed abstractly, as holding true in general, without distinction of persons; and therefore that the duty it establishes must be founded upon a real connection, independent altogether of personal connec­tions. Which leads us to examine what that real connection must be. Nemo debet locupletari aliena jactura, or, No person ought to profit by another's loss, implies a connection between the loss and the gain: it implies that the gain arises by the loss, or by means of the loss. Taking therefore the maxim literally, it ought to take place where-ever the gain is occasioned by the loss, or perhaps occa­sions the loss; which certainly is not good law. My ship loaded with corn proceeds, along with another, to a port where there is a scarcity. The other ship being lost in a storm, my cargo by that means draws a better price: I am benefited by another's loss. A­gain, two vessels loaded with corn are dashed against each other in a storm, and the weaker is sunk; by which means the cargo in the o­ther sells at a higher price. In both examples, the same cause that destroys the one merchant is profitable to the other: yet no man who in such circumstances makes profit, finds himself bound in conscience to bestow his profit upon repairing the other's loss. It appears then that this maxim, like most general maxims, is apt to mislead by be­ing too comprehensive. Reflecting upon this subject, we find, that nothing which a man acquires by his own means, or by accident, however connected with the loss sustained by another, will ever, in­dependent of some personal connection, bind him to make up that loss out of his gain. The only real connection that singly binds him, is where another's money is converted to his use. This circum­stance, though without any intention to benefit him, will bind him in conscience to make up that other's loss as far as he himself is a gainer. Here the maxim, Quod nemo debet locupletari aliena jactura, ta­ken in its strictest sense, is applicable; and the single case, so far as I understand, where it is applicable. The most noted case of this kind is where the possessor of a subject which he bona side considers to be [Page 98] his own, lays out his money on reparations and meliorations, intend­ing nothing but his own benefit: the true proprietor claims the sub­ject in a process, and prevails: he profits by the meliorations, and the money bestowed on these meliorations is converted to his use. Every one in that case must be sensible of a hardship that requires a remedy; and it must be the wish of every disinterested person, that the bona fide possessor be relieved from this hardship. That the com­mon law affords no relief, will be evident at first sight: the labour and money of the bona fide possessor is sunk in the subject, and has no longer any separate existence upon which to found a rei vindicatio: the proprietor at the same time, in claiming the subject, does no more but exercise his own right, which cannot subject him personally to any demand at the instance of the bona fide possessor. If then there be a remedy, it can have no other foundation but equity; and that there is a remedy in equity will appear from the following considera­tions. Man being a fallible creature, society would be an uncom­fortable state were individuals disposed in every case to take advan­tage of the mistakes and errors of others. But the author of our na­ture has more harmoniously adjusted its different branches to each o­ther. To make it a law in our nature, never to take advantage of er­ror in any case, would be giving too much indulgence to indolence and remission of mind, tending to make us neglect the improvement of our rational faculties. On the other hand, to make it lawful to take advantage of error in every case, would be too rigorous, consi­dering how difficult it is for a man to be always upon his guard. The author of our nature has happily moulded it so as to avoid these extremes. No man is conscious of wrong when he takes ad­vantage of an error committed by another to save himself from loss: if there must be a loss, natural justice dictates, that it ought to rest upon the person who has committed an error, however innocently, rather than upon him who has been careful to avoid all error. But in lucro captando, the moral sense teaches a different lesson: every one is conscious of wrong, when an error is laid hold of to make gain by it. The consciousness of injustice, when such advantage is taken, is indeed inferior in degree, but the same in kind with the in­justice of robbing an innocent person of his goods or of his reputation. This doctrine is supported by utility as well as by justice. Industry ought to be encouraged; and chance as much as possible ought to be excluded from all dealings, in order that individuals may promise to themselves the fruits of their own industry. This affords a fresh instance of that beautiful harmony which subsists between the inter­nal [Page 99] and external constitution of man. A regular chain of causes and effects, leaving little or nothing to accident, is advantageous exter­nally by promoting industry, and is not less so internally by the de­light it affords the human mind. No scene is more disgustful than to see all things going on by chance, without order or connec­tion. When a court of equity therefore preserves to every man, as much as possible, the fruits of his own industry; such proceeding, by rectifying the disorders of chance, is authorised by utility as well as by justice. And hence it is a principle of morality, founded both on the nature of man and on the interests of society, That we ought not to make gain by another's error.

This principle is directly applicable to the case above mentioned. The titles of land-property being intricate, and often uncertain, in­stances are frequent, where a man in possession of land, the property of another, is led by unavoidable error to consider it as belonging to himself: his money is bestow'd without hesitation in repairing and meliorating the subject. Equity will not permit the true owner to profit by such mistake, and in effect to pocket the money of the inno­cent possessor; and a court of equity interposes to oblige the owner to make up the loss as far as he is locupletior. Thus the possessor of a tenement, having, upon the faith and belief of its being his own, made considerable meliorations, was, after voiding his title, found intitled to claim from the proprietor the expence of such meliorations as were profitable to him by raising the rent of his tenement *. In all cases of this kind, it can be qualified in the strictest manner, that what is lost to the one accrues to the other. The maxim then must be understood in this limited sense; for no connection between the loss and gain inferior in degree to this, will, independent of personal connections, be a sufficient foundation for a claim in equity against the person who gains, to make up the other's loss.

But supposing the subject meliorated to have perished before bring­ing the action, is the proprietor notwithstanding liable? I answer, That where equity makes benevolence a duty to those who benefit us without intending it, it is not sufficient that there has been gain one time or other: it is implied in the nature of the claim, that there must be gain at the time of the demand; for if there be no gain at present, there is no subject out of which the loss can be made up.

It will not be thought an unnecessary digression to observe a pecu­liarity in the Roman law with respect to this matter. As that law [Page 100] stood originally, the bona fide possessor had no claim for his expences. This did not proceed from ignorance of equity, but from want of a for­mula to authorise the action; for at first when brieves or forms of ac­tion were invented *, this claim was not thought of. But an excep­tion was soon thought of to intitle the bona fide possessor to retain the subject, till he got payment of his expence: and this exception the judges could have no difficulty to sustain, because exceptions were not subjected to any formula. The inconvenient restraint of these formulae was in time broke through, and actiones in factum, or upon the case, were introduced, which were not confined to any formula. Af­ter this innovation, the same equity that gave an exception, produced also an actio in factum; and the bona fide possessor was made secure as to his expences in all cases, viz. by an exception while he remained in possession, and by an action if he happened to lose the possession.

Another case, differing nothing from the former in effect though considerably in its circumstances, is where, upon a fictitious mandate, one purchases my goods, or borrows my money, for the use of another. That other is not liable ex mandato, because he gave no commission: but if I can prove that the money or goods were actually applied for his use, equity affords me a claim against him, as far as he is a gainer. Thus, in an action for payment of merchant-goods purchased in name of the defendant, and applied to his use, the defendant insisted, that he had given no commission; and that if his name was used without his authority, he could not be liable. ‘"It was decreed, That the goods being applied to the defen­dant's use, he was liable, unless he could prove that he paid the price to the person who bespoke the goods ."’ This case, like the former, rests entirely upon the real connection between the loss and gain, independent of which there was no connection be­tween the parties. And in the present case, perhaps more clearly than in the former, every one must be sensible, that the man who reaps the benefit is in duty bound to repair the other's loss. And hence the action de in rem verso, the name of which we borrow from the Romans. In a case precisely similar, the court inclined to sustain it relevant to assoilzie or acquit the defendant, that the goods were gifted to him by the person who purchased them in his name. But as donation is not presumed, he was found liable, because he could not bring evidence of the alledged donation . Upon the supposition [Page 101] of a gift, it could not well be specified that the desendant was locu­pletior: a man will spend liberally what he considers as a present, though he would not lay out his money upon the purchase.

Having endeavoured to ascertain, with all possible accuracy, that degree of connection between the loss and gain, which is requisite to afford a relief in equity, by obliging the person who gains to make up the other's loss, I proceed to ascertain the precise meaning of loss and gain as understood in the maxim. And the first doubt that occurs is, Whether the term locupletior comprehend every real benefit, prevention of loss as well as a positive increase of fortune; or whether it be confined to the latter. I explain myself by examples. When a bona fide possessor rears a new edifice upon another man's ground, this is a positive accession to the subject, which makes the proprietor locupletior in the strictest sense of the word. But it may happen that the money laid out by the bona fide possessor is directed to prevent loss; as where he fortifies the bank of a river against its incroachments, where he supports a tottering edifice, or where he transacts a claim that threatened to carry off the property. Is the maxim applicable to cases of this nature, where loss is only prevent­ed without any positive increase of wealth or fortune? When a work is done that prevents loss, the subject is thereby improved and made of greater value. A bulwark that prevents the incroachments of a river, makes the land sell at a higher price; and a real accession, such as a house built, or land inclosed, will not do more. The only dif­ference is, that a positive accession makes a man richer than he for­merly was; a work done to prevent loss makes him only richer than he would have been had the work been left undone. This dif­ference is too slight to have any effect in equity. The proprietor gains by both equally; and in both cases equally he will feel him­self bound in justice to make up the loss out of his gain. A bona fide possessor who claims money laid out by him to support a tottering edifice, is certans de damno evitando, as well as where he claims money laid out upon meliorations; and the proprietor claiming the subject, is certans de lucro captando in the one case as well as in the other. But in this competition, equity prefers the claim of him who is certans de damno evitando; for, as observed above, there is in human nature a clear sense of wrong, where a man avails himself of an error to make profit at another's expence. Nor does the principle of utility make any distinction. It is a great object in society, to rectify the disorders of chance, and to preserve to every man, as much as pos­sible, the fruits of his own industry; in which view, it makes no [Page 102] difference, whether a man's industry has been applied to prevent loss, or to make a real accession to his fortune. In the cases accordingly that have occurred, I find no distinction made; and in those which follow there was no benefit but what arose from preventing loss. A ship being ransomed from a privateer, every person benefited must contribute a proportion of the ransom *. A written testament being voided for informality, the executor nominate was allowed the expence of confirming the testament, because to the executrix qua next in kin, pursuer of the reduction, it was profitable by saving her the expence of a confirmation .

From what is said, it may possibly be thought, that the foregoing rule of equity is applicable where-ever it can be subsumed, that the loss sustained by one has accrued to the benefit of another. But this will be found a rash conclusion, when it is considered, that one may be benefited without being in any proper sense locupletior, or a gain­er upon the whole. I give an example. A man erecting a large te­nement in a borough, becomes bankrupt by overstretching his cre­dit. This new tenement, being the chief part of his substance, is adjudged by his creditors for sums beyond the value. In the mean time, the tradesmen and the furnishers of materials for the building, trusting to a claim in equity, forbear to adjudge. They are losers to the extent of their work and furnishings; and the adjudgers are in one sense locupletiores, as by means of the tenement they will draw perhaps ten shillings in the pound instead of five. Are the ad­judgers then, in terms of the maxim, bound to yield this profit, in order to pay the workmen and furnishers? By no means. For here the benefit is partial only, and produceth not upon the whole actual profit: on the contrary, the adjudgers, even after this benefit, are e­qually with their competitors certantes de damno evitando. The court of session accordingly refused to sustain the claim of the tradesmen and furnishers . Hence appears a remarkable difference between property and obligation. Money laid out upon a subject by the bona fide possessor, whether for melioration or to preserve it from damage, makes the proprietor locupletior, and a captator lucri ex aliena jactura. But though a creditor be benefited by another's loss, so as by that means to draw a greater proportion of his debt, he is not, however, a gainer upon the whole, but is still certans de damno evitando. And when the parties are thus in pari casu, a court of equity cannot inter­pose, but must leave them to the common law.

[Page 103] I add another limitation, which is not peculiar to the maxim un­der consideration, but arises from the very constitution of a court of equity. It is not sufficient that there be gain, even in the strictest sense: it is necessary that the gain be clear and certain; for otherwise a court of equity must not undertake to repair the loss out of that gain. The principle of utility, in order to prevent arbitrary proceed­ings, prohibits a court of equity to take under consideration a conjec­tural loss or a conjectural gain, because such loss or gain can never be brought under a general rule. I give the following illustrations. Two heritors having each of them a salmon-fishing in the same part of a river, are in use to exercise their rights alternately. One is in­terrupted for some time by a suit at the instance of a third party: the other by this means has more capture than usual, though he va­ries not his manner of fishing. What the one loses by the interrup­tion is probably gained by the other, at least in some measure. But as what is here transferred from the one to the other cannot be ascer­tained with any degree of certainty, a court of equity must not inter­pose. Again, a tenant upon the faith of a long lease, lays out consi­derable sums upon improving his land, and reaps the benefit a few years. But the landlord, who holds the land by a military tenure, dies suddenly in the flower of his age, leaving an infant heir: the land by this means comes into the superior's hand, and the lease is superseded during the ward. Here a great part of the extraordina­ry meliorations which the lessee intended for his own benefit, are converted to the use of the superior. Yet equity cannot interpose, because no general rule can be laid down for ascertaining the gain made by the superior. I have one case to quote which confirms this doctrine. In an action at a tercer's instance for a third of the rents levied by the fiar, the court refused to sustain a deduc­tion claimed by the defendant, viz. a third of the factor-fee paid by him for levying the rents, though it was urged, that the pursuer could not have levied her third with less expence *. The loss here was not ascertained, and was scarce capable of being ascertained; for no one could say what less the factor would have accepted for levying two thirds of the rent than for levying the whole. Neither was the profit capable to be ascertained: the lady herself might have uplifted her share, or have got a friend to serve her gratis.

I shall close with one further limitation, which regards not only the present subject, but every claim that can be founded on equity. Courts of equity are introduced in every country to inforce natural [Page 104] justice, and by no means to give aid to any wrong. Whence it follows, that no man can be intitled to the aid of a court of equity, when that aid becomes necessary by his own fault. For this reason, when the pro­prietor is made liable for the expence of profitable meliorations, this can only be when the meliorations were made bona fide by a person reasonably intending his own profit, and not suspecting any hazard. It is laid down however in the Roman law, That the necessary ex­pence laid out in upholding the subject, may be claimed by the mala side possessor *. If such reparations be made while the proprietor is ig­norant of his right, and the ruin of the edifice be thereby prevented, there possibly may be a foundation in utility for the claim: but I de­ny there can be any foundation in justice. And therefore, if a te­nant, after being ejected by legal execution, shall obstinately persist to plow and sow, he ought to have no claim for his seed nor his labour. The claim in these circumstances hath no foundation either in justice or utility: yet the claim was sustained .

But there are many personal connections joined with a much slight­er real connection than that above mentioned, which intitle a man to have his loss made up out of our gain. Of which take the follow­ing examples.

There are three creditors connected, first by their relation to the same debtor who is a bankrupt; and next, by their relation to two land-estates A and B belonging to the debtor, the first creditor being preferably secured on both estates, one of the secondary creditors be­ing secured upon A, the other upon B. The catholic creditor pur­chases one of the secondary debts under its value, by which he is a gainer; for by his preferable debt he cuts out the other secondary creditor, and by that means draws the whole price of the two sub­jects. The question is, Whether equity will suffer him to retain his gain against the other secondary creditor, who is thus cut out of his security? It cannot indeed be specified here, as in the case of the bonae sidci possessor rei alienae, that money given out by the one is converted to the use of the other: but then the loss and gain are ne­cessarily connected by having a common cause, viz. the purchase made by the catholic creditor. This connection between loss and gain, joined with the personal connections above mentioned, make it the duty of the catholic creditor to communicate his profit, in or­der to make up the loss that the other creditor sustains. And one may with confidence deliver this opinion, when the following cir­cumstance [Page 105] is added, that the loss was occasioned by the catholic cre­ditor, in making a purchase that he was sensible would ruin his fel­low-creditor.

The next case in order, is of two assignees to the same bond, igno­rant of each other. The cedent or assignor contrives to draw the purchase-money from both, and walks off in a state of bankruptcy. The latter assignment, being first intimated, will be preferred. But to what extent? Will it be preferred for the whole sum in the bond, or only for the transacted sum? The circumstances of this case fa­vour the postponed assignee, though they have not the same weight with those in the former: the material difference is, that the assignee preferred made his purchase without knowing of his competitor, and consequently without any thought of distressing him. The personal connection however, joined with the necessary connection between the loss and gain, appears sufficient to deprive the last assignee of his gain, in order to make up the loss sustained by the first. The case would be more doubtful, had the first assignment been first completed; because it may appear hard, that the intervention of a second pur­chaser should deprive the first of a profitable bargain. I leave this point to be ripened by time and mature deliberation. The progress of equity is slow, though constant, toward the more delicate articles of natural justice. If there appear any difficulty about extending equity to this case, the difficulty probably will vanish in course of time.

One thing is certain, that in the English court of chancery there would be no hesitation to apply equity to this case. That court ex­tends its power a great way farther; farther indeed than seems just. A stranger, for example, who purchases a prior incumbrance, can draw no more from the other incumbrancers than the sum he really paid *: and to justify this extraordinary opinion, it is said, ‘"That the taking away one man's gain to make up another's loss, is making them both equal."’ This argument, if it prove any thing, proves too much, being applicable to any two persons indifferently who have not the smallest connection, supposing only the one to have made a profitable, the other a losing bargain. There ought to be some connection to found such a demand: the persons ought to be connected by a common concern; and the loss and gain ought to be connected, so at least as that the one be occasioned by the other. The first connection only is found in this case: a stranger who pur­chases a prior incumbrance is indeed, by a common subject, connect­ed [Page 106] with the other incumbrancers: but this purchase does not harm the other incumbrancers; for when the purchaser claims the debt in its utmost extent, it is no more than what his author was intitled to do. The rule of chancery, in this view, appears a little whimsical: it deprives me of a lucrative bargain, the fruit of my own industry, to bestow it, not upon any person who is hurt by the bargain, but upon those who are in no worse condition than before the bargain was made. Neither am I clear, that this rule can be supported upon a principle of utility: for though it is preventive of hard and unequal bargains; yet as no prudent man will purchase an incumbrance up­on such a condition, it is in effect a prohibition of such purchases, which would prove a great inconveniency to many whose funds are locked up by the bankruptcy of their debtors.

That an heir acquiring an incumbrance should be allowed no more but what he really paid, or, which comes to the same, that he should be bound to communicate eases, is a proposition more agreeable to the principles of equity. This is the law of England *, and it is the law of Scotland with regard to heirs who take the benefit of in­ventory. But the case of an heir is very different from that of a stran­ger. He hath in his hand the fund for payment of the creditors, which he ought faithfully to account for; and therefore he is not permitted to state any article for exhausting that fund beyond what he hath actually expended: if a creditor accept less than his propor­tion, the fund for the other creditors is so much the larger.

A cautioner upon making payment obtaining an ease, must com­municate the same to the principal debtor, upon a plain ground in common law, that being secure of his relief from the principal debt­or, he can have no claim but to be kept indemnis. But supposing the principal debtor bankrupt, I discover no ground other than paction, that can bind one cautioner to communicate eases to another: and yet it is the prevailing, I may say the established, opinion, That a cautioner who obtains an ease must communicate the benefit to his co-cautioner. I am aware of the reason commonly assigned, That cautioners for the same debt are to be considered as in a society, obli­ged to bear the loss equally. But this, I doubt, is arguing in a circle: they resemble a society, because the loss must be equal; and the loss must be equal, because they resemble a society. We must therefore go more accurately to work. In the first place, let us examine whe­ther an obligation for mutual relief ought to be implied. This im­plication, at best doubtful, supposes the cautioners to have subscri­bed [Page 107] in a body. And therefore, to leave no room for an implied ob­ligation, we need but suppose, that two persons, ignorant of each other, become cautioners at different times, and in different deeds. It appears, then, that common law affords not an obligation for mu­tual relief. The matter is still more clear with regard to equity: for the connection between two cautioners can never be so intimate, as to oblige the one who is not a gainer to make up the other's loss; which is the case of the cautioner who obtains an ease, supposing that ease to be less than that proportion of the debt which he stands bound to pay. Upon the whole, my notion is, that if a cautioner, upon ac­count of objections against the debt, or upon account of any circum­stance that regards the principal debtor, obtain an ease, he is bound to communicate that ease to his fellow-cautioner, upon the following rational principle, That both cautioners ought equally to partake of an ease, the motive to which respects them equally. This clearly enough appears to be the ratio decidendi in the case reported by Stair, July 27. 1672, Brodie contra Keith. But if upon prompt payment by one cautioner after the failure of others, or upon any considera­tion personal to the cautioner, an ease be given; equity, I think, ob­liges not the cautioner to communicate the benefit to his fellow-cau­tioners. And this was decreed, Stair, July 8. 1664, Nisbet contra Lessie.

There is one circumstance that, without much connection real or personal, extends to many cases the maxim, Quod nemo debet locuple­tari aliena jactura; and that is fraud, deceit, or any sort of wrong. If by means of a third person's fraud one gains and another loses, a court of equity will interpose to make up the loss out of the gain. And this resolves into a general rule, ‘"That no man, however innocent, ought to take advantage of a tortious act by which another is hurt."’ Take the following example. A second disposition of land, though gratuitous, with the first infeftment, is preferred in common law be­fore the first disposition without infeftment, though for a valuable consideration. But as the gratuitous disponee is thus benefited by a moral wrong done by his author, he ought not, however innocent, to take advantage of that moral wrong to hurt the first disponee. This circumstance makes the rule applicable, Quod non debet locuple­tari alicna jactura; and therefore a court of equity will compel him, either to give up his right to the land, or to repair the loss the first disponee has suffered by being deprived of his purchase.

The following cases rest upon the same principle. A disposition by a merchant of his whole estate to his infant-son, without a reserved [Page 108] liferent or power to burden, was deemed fraudulent, in order to cheat his correspondents, foreign merchants, who had traded with him be­fore the alienation, and continued their dealings with him upon the belief that he was still proprietor; and their claims, though posterior to the disposition, were admitted to affect the estate *.

Where a tutor acting to the best of his skill for the good of his pu­pil, happens, in the ordinary course of administration, to convert a moveable debt into one that is heritable, or an heritable debt into one that is moveable; such an act, after the pupil's death, will have its full effect with respect to the pupil's succession, by preferring his heir or executor, as if the act had been done by a proprietor of full age. But where the tutor acts in this manner unnecessarily, with the sole intention to prefer the heir or the executor, this is a tortious act, con­trary to the duty he owes his pupil, which will affect the heir or ex­ecutor, though they had no accession to the wrong. In common law the succession will take place according to the tutor's act, whether done with a right or a wrong intention; but this will be corrected in equity, upon the principle, That no person ought to take advantage of a tortious act that harms another.

A donation inter virum et uxorem is revocable; but not a donation to the husband or wife's children, or to any other relation. A wife makes a donation of her land-estate to her husband; who afterward, in order to bar revocation, gives up the disposition granted to him, and instead of it takes a disposition to his eldest son. Will this dis­position be revocable? Where a wife out of affection to her husband's eldest son makes a deed in his favour, it is not revocable, be­cause it is not a donatio inter virum et uxorem. But in this case it is clear, that the donation was really intended for the husband, and that the sole purpose of the disposition to the son was to bar revoca­tion; which was an unlawful contrivance to elude the law. It would be wrong therefore in the son, however innocent, to take advantage of his father's tortious act, calculated to deprive the woman of her privilege; and therefore the disposition to him will be revocable in equity, as that to the father was at common law.

ART. II. Connections that intitle a man who is not a loser, to partake of our gain.

FOR the sake of perspicuity, this article shall be divided into two branches: 1st, Where the gain is the operation of the man who [Page 109] claims to partake of it. 2d, Where he has not contributed to the gain.

I introduce the first branch with a case which will be a key to the several matters that come under it. Two heirs-portioners, or in ge­neral two proprietors of a land-estate pro indiviso, get for a farm, having a lake in it, a rent of eighty pounds yearly, with an offer of ten pounds additional rent if they will drain the lake. A is willing; but B refuses, judging it to be impracticable, or at least too expen­sive. A however proceeds at his own risk; and for the sum of L. 100 drains the lake. He cannot specify any loss by this under­taking; because the sum he laid out is more than compensated by the five pound additional rent accruing to him: and therefore the maxim, Quod nemo debet locupletari aliena juctura, is not applicable to his case. But B is a profiter, not only by A's advancing the mo­ney, but at his risk; for if the undertaking had proved abortive, A would have lost both his labour and money. Is it agreeable to the rules of justice, that B should be permitted to lay hold of an addi­tional rent of L. 5, without defraying any part of the expence laid out upon the acquisition? He cannot justify this to his own con­science, nor to any human being. The moral sense dictates, that where expence is laid out in improving or repairing a common sub­ject, no one ought to lay hold of the benefit, without refunding a part of the expence in proportion to the benefit received.

This leads to a general rule, That expence laid out upon a com­mon subject, ought to be a burden upon the benefit procured. And this rule will hold even against the dissent of any of the parties con­cerned; for they cannot in conscience take the benefit without the burden. A dissent cannot have any effect in equity, but only to free the person dissenting from any risk.

The following cases, being of the same kind with that above sta­red, come clearly under the general rule. One of three joint pro­prietors of a mill, having raised a declarator of thirlage, and, not­withstanding a disclamation by the others, having insisted in the pro­cess till he obtained a decree; the others who reaped the profit e­qually with him, were made liable for their share of the expence *. And one of many co-creditors having obtained a judgement against the debtor's relict, finding her liable to pay her husband's debts; the other creditors who shared the benefit were decreed to contribute to the expence . For the same reason, where a tenement destroyed [Page 110] by fire was rebuilt by a liferenter, the proprietor, after the liferenter's death, was made liable for the expence of rebuilding, as far as he was lucratus thereby *. And if rebuilt by the proprietor, the life­renter will be liable for the interest of the sum expended as far as he is lucratus . Action was sustained at the instance of a wadsetter for declaring, that his intended reparation of a harbour in the wadset­lands, would be profitable to the reverser; and that the reverser, up­on redemption, should be bound to repay the expence thereof . Upon the same principle, if a lessee erect any buildings by which the proprietor is evidently lucratus at the end of the lease, there is a claim in equity for the expence of the meliorations. But reparations, though extensive, will scarce be allowed where the lessee is bound to uphold the houses; because a lessee who bestows such reparation without his landlord's consent, is understood to lay out his money in order to fulfil his obligation, without any prospect of retribu­tion . The present minister was found not liable for the meliora­tions of the glebe made by his predecessor **. But what if meliora­tions be made, inclosing, draining, stoning, &c. which are clearly profitable to all future possessors? If the expence of these, in pro­portion to the benefit, be not in some way refunded, glebes will rest in their original state for ever. I do not say, that the minister im­mediately succeeding ought to be liable for the whole of this expence: for as the benefit is supposed to be perpetual, the burden ought to be equally so: which suggests the following opinion, That the sum­total of the expence ought to be converted into a perpetual annuity, to be paid by the ministers of this parish; for the only equitable method is, to make each contribute in proportion to the benefit he receives.

The following case belongs undoubtedly to the maxim of equity under consideration; and yet was judged by common law, neglect­ing the equitable remedy. In a shipwreck, part of the cargo being fished out of the sea and saved, was delivered to the owners for pay­ment of the salvage. The proprietor of the ship claiming the freight of the goods saved, pro rata itineris, the freighters admitted the claim; but insisted, that as the salvage was beneficial to him on account of his freight, as well as to them on account of their goods, he ought [Page 111] to pay a proportion of the salvage. His answer was sustained to free him from any part, viz. That the expence was wholly laid out on recovering the freighter's goods; and therefore that they only ought to be liable *. The answer here sustained resolves into the follow­ing proposition, That he only is liable whose benefit is intended: which is certainly not good in equity; for at that rate, the bona fide possessor, who in meliorating the subject intends his own benefit sole­ly, has no claim against the proprietor. Here the freighters and the proprietor of the ship were connected by a common interest: the re­covering the goods from shipwreck was beneficial to both parties; to the freighters, because it put them again in possession of their goods; and to the proprietor of the ship, because it gave him a claim for freight. The salvage accordingly was truly in rem versum of both; and for that reason ought to be paid by both in proportion to the benefit received. This case may be considered in a different light that will scarce admit a dispute. Suppose that the owners of the cargo, in recovering their goods to the extent of L. 1000, have laid out L. 100 upon salvage: they have in effect saved or recovered but L. 900; and beyond that sum they cannot be liable for the freight: which in numbers will bring out a greater sum than what results from the rule above mentioned.

It will not escape the reader, that equity is further extended in this branch than in the former; and he will also discover a solid reason for the difference. With respect to matters contained in the former branch, the real connection is only, that what is lost by the one is gained by the other; as in the case of a bona fide possessor rei alienae. But the real connection of matters in the present branch is so far more intimate, that every acquisition must benefit all equally, and every loss burden all equally.

It appears, that a benefit accruing to another by my la­bour, occasionally only not necessarily, will not intitle me to a claim where I am not a loser. To make the truth of this observation evi­dent, a few examples will be sufficient. A drain made by me in my own ground for my own behoof, happens to discharge a quanti­ty of water that stagnated in a superior field belonging to a neigh­bour. Justice does not intitle me to claim from this neighbour any share of the expence laid out upon the drain. The drain has an­swered my intention, and overpays the sum bestowed upon it: there­fore my case comes not under the maxim, Quod nemo debet locupletari aliena jactura. Neither can I have any claim upon the rule, That [Page 112] expence laid out upon a common subject ought to be a burden upon the benefit procured; for here there is no common subject, but on­ly another person accidentally or occasionally benefited by an opera­tion intended solely for my own benefit. And Providence has wisely ordered that such a claim should have no support from the moral sense; for as there can be no precise rule for estimating the benefit that each of us receives from the drain, the subjecting my neighbour to a claim would tend to create endless disputes between us. For the same reason, if my neighbour in making an inclosure take advantage of a march-sence built by me, he will not be liable to any part of the expence bestowed by me upon it; because the benefit, as in the former case, is occasional only or consequential.

From the nature of the claim handled in the present branch, it follows, that if the party against whom the claim is laid, renounce the benefit, he cannot be subjected to the burden.

With respect to the branch now handled, the circumstance that the benefit accruing to another was occasioned by my means, is the connection that intitles me to a proportion of the sum I laid out in procuring that benefit. But with respect to the second branch, which we are next to enter upon, it must require some personal relation extremely intimate to intitle me to par­take of another man's profit when I have not contributed to it. And this will be made evident by the following examples.

When land is held ward, and the superior is under age, a gift of his ward is effectual against his vassal as well as against himself. But where the gift of ward was taken for behoof of the superior, it was the opinion of the court, that the vassal also had the benefit thereof upon paying his proportion of the composition *. Against this opinion it was urged, That a vassal must lay his account with be­ing liable to all the casualties arising from the nature of his right; and that there was no reason for limiting the superior's claim, more than that of any other donatar. But it was answered, That the rela­tion between superior and vassal is such, as that the superior cannot bona side take advantage against his vassal of a casualty occasioned by his own minority. The same rule was applied to a gift of marriage taken for behoof of the superior . And it appearing that the supe­rior had obtained this gift for alledged good services, without paying any composition, the benefit was communicated to the vassal without obliging him to pay any sum .

[Page 113] If a purchaser of land, discovering a defect in the title derived to him from his author, secure himself by acquiring the preferable title, the common law will not permit him to found upon this new acqui­red title as a ground of eviction, to make his author, bound in abso­lute warrandice, liable for the value of the subject: for the purcha­ser is not intitled to the value unless the land be actually evicted from him; and, as the case now stands, the purchaser cannot have any claim upon the warrandice beyond the sum he paid for the title. This point is still more clear upon the principle of equity above mentioned. The connection is so intimate between a purchaser, and a vender bound in absolute warrandice, that every transaction made by either, with relation to the subject purchased, is deemed to be for behoof of both.

But now supposing several parcels of land to be comprehended un­der one title-deed. One parcel is sold with absolute warrandice; and the purchaser, discovering the title-deed to be imperfect, acquires from a third party a preferable title to the whole parcels. He is no doubt bound to communicate the benefit of this acquisition to the vender, as far as regards the parcel he purchased. But there is no­thing at common law to bar him from evicting the other parcels from the vender. Whether a relief can be afforded in equity, is doubt­ful. The connection between the parties is pretty intimate: the purchaser is bound to communicate to the vender the benefit of his acquisition with respect to one parcel, and it is natural to extend the same remedy to the whole. One case of this nature occurred in the court of session. A man having right to several subjects contained in an adjudication, sold one of them with absolute warrandice; and the purchaser having acquired a title preferable to his author's adju­dication, claimed the subjects that were not disponed to him. The court restricted the claim to the sum paid for the preferable title *. It is not certain whether this decree was laid upon the principle above mentioned: for what moved some of the judges was the danger of permitting a purchaser acquainted with the title-deeds of his author, to take advantage of his knowledge by picking up preferable titles; and that this, as an unfair practice, ought to be prohibited.

ART. III. Connections that intitle one who is a loser to a recompence from one who is not a gainer.

CASES daily occur, where, by absence, infancy, inadvertence, or other circumstances, effects real and personal are left without proper [Page 114] management, and where ruin must ensue, if no person actuated with the principle of benevolence be moved to interpose. Here friend­ship and good-will have a favourable opportunity to exert themselves, and to do much good, perhaps without any extraordinary labour or great expence. But there can be no management without labour and expence more or less; and when a proprietor is benefited by such acts of friendship or benevolence, justice and gratitude claim from the proprietor a retribution, to the extent at least of the benefit received. Here the maxim Quod nemo debet locupletari aliena jactura, is applicable in the strictest sense. Hence the actio negotiorum gestorum in the Ro­man law, which for the reason given is adopted by all civilized na­tions.

But what if this friendly man, after bestowing his money and la­bour with the utmost precaution, happen to be unsuccessful? What if, after laying out his money profitably upon repairing houses, or purchasing cattle for my use, the benefit be lost to me by the casual destruction of the subject? would it be just that this friend, who had no view but for my interest, should run the risk? As there was no contract between us, a claim will not be sustained at common law for the money expended. But equity pierces deeper into the nature of things, in order to fulfil the rules of justice. Service undertaken by a friend upon an urgent occasion, advances gratitude from a virtue to be a duty; and binds me to recompense my friend as far as he has laid out his own money in order to do me service. The moral sense teaches this lesson; and no person, however partial in his own con­cern, but must perceive this to be the duty of others. Utility also joins with justice in support of this claim of recompence. Men ought to be invited to serve a friend in time of need: but instead of invita­tion, it would be a great discouragement, if the money advanced up­on such service were upon their own risk, even when laid out with the greatest prudence a. This doctrine is laid down by Ulpian in clear terms: ‘"Is autem, qui negotiorum gestorum agit, non solum si effectum habuit negotium quod gessit, actione ita utetur: sed sufficit, si utiliter gessit, etsi effectum non habuit negotium. Et i­deo, [Page 115] si insulam fulsit, vel servum aegrum curavit, etiamsi insula ex­usta est, vel servus obiit, aget negotiorum gestorum. Idque et La­beo probat *."’

From what is said above it is evident, that the man who under­takes my affairs, not to serve me, but to serve himself, is not intitled to the actio negotiorum gestorum. Nor even, supposing me to be bene­fited by his management, is he intitled to have his loss repaired out of my gain: for wrong can never found any claim in equity. Yet Julianus, the most acute of the Roman writers, answers the question in the affirmative. Treating of one who mala side meddles in my af­fairs, he gives the following opinion: ‘"Ipse tamen, si circa res meas aliquid impenderit, non in id quod ei abest, quia improbe ad nego­tia mea accessit, sed in quod ego locupletior factus sum, habet con­tra me actionem ."’ It appears at the same time, from l. ult. C. De negot. gest. that this author was of a different opinion, where the ma­nagement of a man's affairs was continued against his will; for there no action was given. This, in my apprehension, is establishing a dis­tinction without a difference: for no man can hope for my consent to continue the management of my affairs, when he begun that ma­nagement, not to serve me, but with a view to his own interest. A prohibition involved in the nature of the thing, is equivalent to an ex­press prohibition.

The master of a ship, or any other, who ransoms the cargo from a privateer, is, according to the doctrine above laid down, intitled to claim from the owners of the cargo the sum laid out upon their ac­count: they profit by the transaction, and they ought to indemnify him. But what if the cargo be afterward lost in a storm at sea, or by robbery at land? The owners are not now profiters by the ran­som, and therefore they cannot be made liable upon the maxim, Quod nemo debet locupletari aliena jactura. They are however liable upon the principle here explained. The moment the transaction was finished they became debtors to the ransomer for the sum he laid out pro­fitably upon their account. He did not undertake the risk of the [Page 116] cargo ransomed; and therefore the casual loss of the cargo cannot have the effect to deprive him of his claim.

The lex Rhodia de jactu, a celebrated maritime regulation, has pre­vailed among all civilized nations ancient and modern. When in a storm weighty goods of little value are thrown overboard to disburden the ship, the owners of the remaining cargo must contribute to make up the loss. This case, as to the obligation of retribution, is of the same nature with that now mentioned, and depends on the same principle. The throwing overboard weighty goods of little value, is extremely beneficial to the owners of the more precious goods, which by that means are preserved; and, according to the foregoing doc­trine, these owners ought to contribute for making up the loss of the goods thrown into the sea, precisely as if there had been a formal co­venant to that effect. But what if the whole cargo be afterward lost, by which eventually there is no benefit? If lost at sea in the same voyage, the owner of the goods thrown overboard has certainly no claim, because at any rate he would have lost his goods along with the rest of the cargo. But as soon as the cargo is laid upon land, the obligation for retribution is purified; the value of the goods aban­doned to the sea, is or ought to be in the pocket of the owner; and the delay of payment will not afford a defence against him, whatever become of the cargo after it is landed.

It is a question of greater intricacy, Whether the goods saved from the sea ought to contribute according to their weight or according to their value. The latter rule is espoused in the Roman law: ‘"Cum in eadem nave varia mercium genera complures mercatores coegissent, praetereaque multi vectores, servi liberique in ea navigarent, tem­pestate gravi orta, necessario jactura facta erat. Quaesita deinde sunt haec: An omnes jacturam praestare oporteat, et si qui tales merces imposuissent, quibus navis non oneraretur, velut gemmas, margaritas? et quae portio praestanda est? Et an etiam pro liberis capitibus dari oporteat? Et qua actione ea res expediri possit? Pla­cuit, omnes, quorum interfuisset jacturam fieri, conferre oportere, quia id tributum observatae res deberent: itaque dominum etiam navis pro portione obligatum esse. Jacturae summam pro rerum pretio distribui oportet. Corporum liberorum aestimationem nullam fieri posse *."’ This rule is adopted by all the commercial nations in Europe, without a single exception, as far as I can learn. And in pursuance of the rule, a doctrine begins to relish with judges, That the owner of the ship ought to contribute, because' by throwing over­board [Page 117] the goods in question, which prevented a shipwreck, his claim for freight is preserved to him. Thus, if, in stress of weather, or in danger and just fear of an enemy, goods be thrown overboard, in order to save the ship and the rest of the cargo, that which is saved shall contribute to repair that which is lost, and the owners of the ship shall contribute in proportion *.

These authorities notwithstanding, to which, I am sensible, great regard is justly due, it is not in my power to banish an impression I have, That the rule of contribution ought to be weight, not value; and whether, after all, the impression ought to be banished, must be decided by reason, not authority. In every case where a man gives away his money or his goods for behoof of a plurality connected by a common interest, two things are evident: first, That his equitable claim for a recompence cannot ex­ceed the loss he has sustained; and next, That each individual is liable to make up the loss of that part which was given away on his account. When a ransom is paid to a privateer for the ship and car­go, a share of the money is understood to be advanced for each pro­prietor, in proportion to the value of his goods; and that share he must contribute, being laid out upon his account, or for his service. That the same rule is applicable where a ship is saved by abandoning part of its cargo, is far from being clear. Let us examine the matter attentively, step by step. The cargo in a violent storm is found too weighty for the ship, which must be disburdened of part, let us sup­pose the one half. In what manner is this to be done? The answer would be easy, were there leisure and opportunity for a regular ope­ration: each person who has the weight of a pound aboard, ought to throw the half into the sea; for in strict justice one person is not bound to abandon a greater proportion than another. This method, however, is seldom or never practicable; because in a hurry the goods at hand must be heaved over: and were it practicable, it would not be for the common interest, to abandon goods of little weight and great value, along with goods of great weight and little value. Hence it comes to be the common interest, and, without asking questions, the common practice, to abandon goods the value of which bears no proportion to their weight. This, as being done for the common interest, intitles the proprietor of these goods to a recom­pence from those for whose service the goods were abandoned. Now the service done to each proprietor is, instead of his valuable goods, to [Page 118] have others thrown overboard of a meaner quality; and for such ser­vice all the recompence that can be justly claimed is the value of the goods thrown overboard. Let us suppose with respect to any owner in particular, that regularly he was bound to throw overboard twen­ty ounces of his goods: all that he is bound to contribute, is the value of twenty ounces of the goods that in place of his own were actually thrown overboard. In a word, this short-hand way of throwing into the sea the least valuable goods, appears to me in the same light, as if the several owners of the more valuable part of the cargo, had each of them purchased a quantity of the mean goods to be thrown into the sea instead of their own.

I cannot help at the same time observing, that the doctrine of the Roman law appears very uncouth in some of its consequences. Jewels, and I may add bank-bills, are made to contribute to make up the loss, though they contribute not in any degree to the distress; nor is a single ounce thrown overboard upon their account: nay, the ship it­self is made to contribute, though the jactura is made necessary, not by the weight of the ship, but by that of the cargo. On the other hand, passengers are exempted altogether from contributing, for a very whimsical reason, That the value of a free man cannot be estima­ted in money: and yet passengers frequently make a great part of the load. If they contribute to the necessity of disburdening the ship, for what good reason ought they to be exempted from contributing to make up the loss of the goods which were thrown into the sea upon their account?

CHAP. IV. Powers of a court of equity to remedy what is impersect in common law, with respect to deeds and covenants.

WE have seen above, that, abstracting from a positive engagement, the virtue of benevolence is not a duty, except to relieve others from harm. But a man singly is the most helpless of all animals; and unless he could rely upon support from others, he would in vain attempt any operation that requires more than two hands. To per­fect society by securing aid and assistance in time of need, promises and covenants are provided by nature; and to these accordingly may justly be attributed, the progress at least, if not the commencement of every art and manufacture.

[Page 119] Every promise and covenant implies necessarily two persons: one who is bound, termed the obligor; and one to whom the obligation is directed, termed the obligee.

That particular act of the will which binds us whether in promising or in contracting, is termed consent. And it is also that very act which makes a deed effectual; as will thus appear. A deed is of two kinds: one where the granter binds himself, as in a disposition, or in a char­ter; which being in effect a promise, is obviously binding upon him by his consent: the other kind is where the granter declares his will without being bound, as where by a deed he imposes burdens upon his heir: it is the heir's consent which binds him in that case, a con­sent implied from his taking up the succession.

Few persons pass much of their time without having purposes to fulfil and plans to execute, for the accomplishing of which means are employ'd. Among these means deeds and covenants make a capital figure: no man binds himself or others for the sake merely of bind­ing, but in order to bring about a desired event. And therefore eve­ry deed and covenant may justly be considered to be a mean employ'd to bring about some end or event.

Sometimes the desired event is mentioned in the deed or contract, and expresly agreed on or appointed to be performed; in which case performance concludes the transaction, because it brings to a final issue all that was intended by the parties concerned. A bond for bor­rowed money is a proper example: what is stipulated in the bond to be performed is repayment of the money, beyond which the parties have no view; and that end is fully accomplished when the money is paid. A legacy bequeathed in a testament is another example of the same kind: payment of the legacy is the only end in view; and that end is accomplished when the legatee receives the money. But in many deeds and contracts there is a further end in view than merely the performance of what is agreed or appointed. Thus when I buy a horse with a view to propagation, the contract is performed upon delivery of the horse to me. But this performance is not sufficient to fulfil my purpose: I had a further end in view, which was to breed horses; and unless the horse be fit for that end, my purpose in contracting is frustrated. I purchase a hogshead of flax-seed for rai­sing a crop of flax. It is not enough that the seed be delivered to me: if it be rotten, the end I had in view is disappointed.

This suggests a division of deeds and contracts into two kinds. A deed of the first kind is where the performance of what is appointed fulfils the intention of the granter: and of the second kind, where [Page 120] that performance is intended as a mean only to a further end, which in that respect may be termed ultimate. In like manner, a contract of the first kind is where the performance stipulated is ultimate, by fulfilling what was intended by the parties: of the second kind, where that performance is intended as a mean only to an ultimate end. In this last kind, the contract is a mean to bring about the immediate end of performing what was stipulated; and this immediate end is a mean to bring about the ultimate end.

In contracts where the peformance of what is stipulated is a mean only to an ultimate end, there is place for judging how far the means are proportioned to the end: they may be insufficient to bring about the end: they may be more than sufficient: and they may have no tendency to bring about the end. In cases of this nature there is place for the interposition of equity, to vary these means in some cases, so as to proportion them more accurately to the ultimate end; and in other cases to set aside the contract altogether, as insufficient to bring about the ultimate end. Hence it is that such contracts are termed Contracts bonae fidei; that is, contracts in which equity may interpose to correct inequalities, and to adjust all matters according to the ho­nest intention of the parties. With respect to contracts where the performance stipulated is the ultimate end, there is evidently no place for the interposition of equity; for what defence can a man have ei­ther in law or in equity against performing his engagement, when it fulfils all he had in view in contracting? Hence it is, that contracts of this kind are termed Contracts stricti juris.

To the noted distinction between contracts bonae fidei and stricti juris, great attention is given in the Roman law. We are told, that equity may interpose in the former, and that the latter are left to common law. But as to what contracts are bonae fidei, and what stricti juris, we are left in the dark by Roman writers. Some of their commentators indeed give us lists or catalogues; but they pretend not to lay down any rule by which the one kind may be distinguished from the other. I have endeavoured to supply that defect: it belongs to others to judge whether my endeavours have been successful.

To prevent mistakes in the application of the foregoing doctrine, it is necessary to be observed, that the end here understood is not that which may be secretly in view of the one or the other party, but that which is spoke out, or understood by the parties concerned; for a thought retained within the mind, cannot have the effect to quali­fy an obligation more than to create it. The overlooking this distinc­tion [Page 121] has led Puffendorff into a gross error: who puts the case *, That a man, upon a false report of all his horses being destroy'd, makes a contract for a new cargo; and his opinion is, That in equity the purchaser is not bound. This opinion favours too much of a college, and of a man unacquainted with the world and its commerce. Were mistakes of this kind indulged with a remedy, there would be no end of law-suits. At this rate, if I purchase a quantity of body or table linen, ignorant at the time of a legacy left me of such goods, I ought to be relieved in equity against the purchase, having now no occasion for these goods. And for the same reason, if I purchase a horse by commission for a friend, who happens to be dead at the time of the purchase; there must be a relief in equity, though I made the pur­chase in my own name. But there is no foundation for this opinion in equity more than at common law. If a subject answer the pur­pose for which it is purchased, the vender has no farther concern: he is intitled upon delivery to demand the price, without regarding any private or extrinsic motive that might have led his party to make the purchase. In general, a man who exposes his goods to sale must answer for their sufficiency; because there is no obligation in equity to pay a price for goods that answer not the purpose for which they are sold by the one, and bought by the other: but if a purchaser be led into an error or mistake that regards not the subject nor the vender, the consequences must rest upon himself.

I shall only add upon this general head, that the end proposed to be brought about by a deed or covenant ought to be lawful; for to make effectual an unlawful act is inconsistent with the very nature of a court of law. Thus a bond granted by a woman, binding her to pay a sum if she should marry, is unlawful, as tending to bar popula­tion; and therefore will be rejected even by a court of common law. And the same fate will attend every obligation granted ob turpem cau­sam; a bond, for example, granted to a woman as a bribe to commit adultery or fornication. So far there is no occasion for a court of equity.

This chapter, consisting of a multitude of parts, requires many di­visions; and in the divisions that follow perspicuity is studied, which ought to be the chief object in every arrangement.

SECT. I. Where the words expressing will or consent are imperfect.

IN applying the rules of equity to deeds and covenants, what first passes under examination is, Whether the will or consent be ful­ly or fairly taken down in the writing. A man, expressing even his own thoughts, is not always happy in his terms: errors may creep in, which are multiplied when improper words are used in writing. Thus clauses in writings are sometimes ambiguous or obscure, some­times too limited, and sometimes too extensive. As common law af­fords no remedy, the imperfection is supplied by a court of equity. It admits words and writing to be indeed the proper evidence of will; but it does not exclude other evidence. Sensible that words and wri­ting are sometimes erroneous, it endeavours if possible to reach will, which is the only substantial part; and if, from the end and purpose of the engagement, from collateral circumstances, or other satisfying evi­dence, the will can be ascertained, it is justly made the rule of judge­ment. The sole purpose of words is to bear testimony of will; and if their testimony be false, they are justly disregarded. This branch of equitable jurisdiction, which obviously reaches single deeds as well as covenants, is founded on the principle of justice; because every man feels himself bound by the consent he really interposed, without relation to words or writing, which stand for evidence only.

This section may be distinguished into three articles. 1st, Where the words leave us uncertain about will. 2d, Where they fall short of will. And, 3d, Where they go beyond it.

ART. I. Where the words leave us uncertain about will.

THIS imperfection may be occasioned by the fault of the writer in using improper terms; or by the fault of the parties, whether by willing indistinctly, or by expressing their will obscurely. But I pur­posely have neglected this distinction, because in most of the cases that occur, it is extremely doubtful upon whom the imperfection is to be charged. Nor will this breed the least confusion or intricacy; for whatever occasions the quaestio voluntatis, there is but one method for ascertaining it; and that is, from the nature of the deed or cove­nant, [Page 123] and from concomitant circumstances, to form the most ratio­nal conjecture what truly is the will.

A wife gives a security upon her estate to her husband's creditors; but with what intention is not specified. If a donation was intend­ed, she has no claim against her husband: but in dubio, a cautionary engagement must be presumed, which will afford her a claim for re­lief *. Though in general the intention must first be ascertained be­fore it can be pronounced what is to follow from it; yet it is presu­med, that a court of common law would hardly be brought to sustain a claim of this nature, where there is no clause in the deed upon which it can be founded.

Where a man provides a sum to his creditor, without declaring it to be in satisfaction, this sum will be sustained as a separate claim at common law. But as the granter probably intended that sum to be in satisfaction, according to the principle Quod debitor non praesumitur donare, a court of equity, supplying the defect of words, decrees the sum to be in satisfaction. Thus, a man being bound for L. 10 year­ly to his daughter, gave her at her marriage a portion of L. 200. Decreed, That the annuity should be included in the portion . But where a man leaves a legacy to his creditor, this cannot be con­structed as satisfaction; for in that case it would not be a legacy or donation.

Anthony Murray, anno 1738, made a settlement of his estate upon John and Thomas Belscheses, taking them bound, among other lega­cies, to pay L. 300 Sterling to their sister Emilia at her marriage. Anthony altered this settlement anno 1740, in favour of his heir at law; obliging him, however, to pay the legacies contained in the former settlement. In the year 1744, Anthony executed a bond to Emilia upon the narrative of love and favour, binding himself to pay to her in liferent, and to her children nati et nascituri in fee, at the first term after his decease, the sum of L. 1200 Sterling. The doubt was, whether both sums were due to Emilia, or only the latter. It was admitted, that both sums would be due at common law, which looks no farther than the words: but that this was not the intention of the granter, was urged from the following circumstance, That in the bond for the L. 1200 there is no mention made of the former le­gacy, nor of any legacy, which clearly shews that Anthony had for­got [Page 124] the first legacy; and consequently that he intended no more for Emilia but L. 1200 in whole. Which was accordingly decreed *.

ART. II. Where the words fall short of will.

IN England where estates are settled by will, it is the practice to sup­ply any defect in the words, in order to support the will of the devi­sor. But then it is a rule, That the will must be clearly ascertained; for otherwise the court may be in hazard of forfeiting the heir at law, contrary to the will of his ancestor. Thus where a man devises land to his heir after the death of his wife, this is a good devise to the wife for life by necessary implication: for by the words of the will, the heir is not to have it during her life: and if she have it not, none else can; for the executors cannot intermeddle . But if a man devise his land to a stranger after the death of his wife, this does not necessarily in­fer that the wife should have the estate for life: it is but declaring at what time the stranger's estate shall commence; and in the mean time the heir shall have the land.a An executor being named with the usual power of intermeddling with the whole money and effects of the deceased, the following clause subjoined, ‘"And I hereby de­bar and seclude all others from any right or interest in my said executry,"’ was held by the court to import an universal legacy in favour of the executor . A man having two nephews who were his heirs at law, made a settlement in their favour, dividing his parti­cular farms between them, intending probably an equal division. But in the enumeration of the particular lands, a farm was left out by the omission of the clerk, which, as the scrivener swore, was in­tended for the plaintiff. The court considering that the settlement was voluntary or gratuitous, refused to amend the mistake, leaving the farm to descend equally between the nephews **. For here it was not clear that the maker of the deed intended an equal division.

In the cases above mentioned, writing indeed is necessary as evi­dence, but not as an essential solemnity: it is of no consequence what words be used in the settlement of a land-estate, or in the no­mination of an executor, provided the will of the maker be sufficient­ly ascertained. But in several transactions, writing not only stands [Page 125] for evidence, but is beside an indispensable solemnity. Land cannot be convey'd without a procuratory or a precept, which must be in a set form of words. A man may lend his money upon a verbal pac­tion, but he cannot proceed directly to execution, unless he have a formal bond containing a clause of registration authorising execution. Neither can such a bond be convey'd to a purchaser, otherwise than by a formal assignment in writing. Here a new speculation arises, What power a court of equity hath over a writing of this kind. In this writing not less than in others, the words may happen erroneously to be more extensive than the will of the granter; or they may happen to be more limited. Must the words in all cases be the sovereign rule? By no means. Though in certain transactions writ is an essential so­lemnity, it follows not that the words solely must be regarded, with­out relation to will; for to bind a man by words where he hath not interposed his consent, is contradictory to the most obvious prin­ciples of justice. Hence it necessarily follows, that a deed of this kind may, by a court of equity, be limited to a narrower effect than the words naturally import; and that this ought to be done, when from the context, from the intendment of the deed, or from other convincing circumstances, it can be certainly gathered, that the words by mistake go beyond the will. But though in ordinary cases, such as those above mentioned, the defect of words may be supplied, and force given to will, supposing it clearly ascertained, yet this cannot be done in a deed to which writ is essential. The reason is, that to make writ an essential solemnity, is in other words to declare, That action must not be sustained except as far as authorised by writ. However clear therefore will may be, a court of equity hath not au­thority to sustain action upon it, independent of the words where these are made essential; for this, in effect, would be to overturn the law, which is beyond the power of equity. A case that really happened is a notable illustration of this doctrine. A bond of corroboration granted by the debtor with a cautioner was of the following tenor. ‘"And seeing the foresaid principal sum of 1000 merks, and interest since Martinmas 1742, are resting unpaid; and that A the credi­tor is willing to supersede payment till the term after mentioned upon B the debtor's granting the present corroborative security with C his cautioner; therefore B and C bind and oblige them, conjunctly and severally, &c. to content and pay to A in liferent, and to her children in fee, equally among them, and failing any of them by decease, to the survivors, their heirs or assignees, in fee, and that at Whitsunday 1744, with 200 merks of penalty, toge­ther [Page 126] with the due and ordinary annualrent of the said principal sum from the said term of Martinmas 1742,"’ &c. Here the obli­gatory clause is imperfect, as it omits to mention the principal sum corroborated, viz. the 1000 merks, but only the interest, a pure over­sight of the writer. In a suit upon this bond of corroboration a­gainst the heir of the cautioner, it was objected, That upon this bond no action could lie for payment of the principal sum. It was obvious to the court, that the bond in question, though defective in the most essential part, afforded however clear evidence of C's consent to be bound as cautioner. But then it occurred, that a cautionary engage­ment is one of those deeds that require writing, not only in point of evidence, but also in point of solemnity. A formal bond of corro­boration fulfils the law in both points. But a defective bond, like the present, whatever evidence it may afford, is as nothing in point of solemnity: it is still less formal than if it wanted any of the requi­sites of the act 1681. Action accordingly was denied; for action cannot be sustained upon consent alone where a formal deed is essen­tial *.

The following case concerning a registrable bond, or, as termed in England, a bond in judgment, is another instance of refusing to supply a defect in words. A bond for a sum of money bore the fol­lowing clause, with interest and penalty, without specifying any sum in name of penalty. The creditor moved the court to supply the o­mission, by naming the fifth part of the principal sum, being the constant rule as to consensual penalties. There could be no doubt of the granter's intention; and yet the court justly thought that they had not power to supply the defect .

But though a defect in a writ that is essential in point of solemnity, cannot be supplied so as to give it the full effect that law gives to such a deed, it may notwithstanding be regarded by a court of equity in point of evidence. A bond of borrowed money, for example, null by the act 1681, because the writer's name is neglected, may, in con­junction with other evidence, be produced in an action for payment, in order to prove delivery of the money as a loan, and consequently to found a decree for repayment.

Walter Riddel, in his contract of marriage 1694, became bound to secure his whole land estate to the heir-male of the marriage. In the year 1727, purposing to fulfil that obligation, he disponed to his eldest son Robert the lands therein specified, burdened with his debts, [Page 127] reserving to himself only an annuity of 2000 merks. The lands of Stewarton, which came under the said obligation, were left out of the disposition 1727. But that they were omitted by the oversight of the writer without intention, was made evident from the following circumstances. 1mo, That the title-deeds of that farm were delivered to the son along with the other title-deeds of the estate. 2do, That he entered into possession of the whole. 3tio, That a subsequent deed by the father, anno 1733, relative to the former, proceeds upon this nar­rative, ‘"That the whole lands belonging to him were convey'd to his son by the disposition 1727."’ Many years thereafter the father having discovered that Stewarton was not comprehended in the said disposition, ventured to convey them to his second son, who was otherwise competently provided. In this case it was not pretended that Stewarton was actually conveyed to the son, which could not be without a formal disposition. But as there was sufficient evidence of the agreement to convey these lands as part of the estate, which the father remained still bound to fulfil, the court judged this a sufficient foundation to void the gratuitous disposition to the second son *.

ART. III. Where the words go beyond will.

IT is a ruel in daily practice, that however express the words may be, a court of equity gives no force to a deed beyond the will of the granter. This rule is finely illustrated by the following case. John Campbell Provost of Edinburgh, did, in July 1734, make a settlement of the whole effects that should belong to him at the time of his death, to William his eldest son, with the burden of provisions to his other children, Matthew, Daniel, and Margaret. Daniel being at sea in a voyage from the East Indies, made his will May 1739, in which he ‘"gives and bequeaths all his goods, money, and effects, to John Campbell his father; and in case of John's de­cease, to his beloved sister Margaret."’ The testator died at sea in the same month of May; and in June following John the father also died, without hearing of Daniel's death, or of the will made by him. William brought an action against his sister Margaret and her hus­band, concluding, That Daniel's effects being vested in the father, were convey'd to him the pursuer by the father's settlement; and that the substitution in favour of Margaret contained in Daniel's will was thereby altered. It was answered, That nothing more was nor could be intended by the Provost, than to set aside his heirs ab intestato, by [Page 128] settling his proper estate upon his eldest son, and by no means to al­ter the substitution in his son Daniel's testament, of which he was ig­norant: That words are not alone, without intention, sufficient to found a claim; and therefore, that the present action ought not to be sustained. ‘"The court judged, That the general disposition in 1734, granted by John Campbell to his son the pursuer, several years before Daniel's will had a being, does not evacuate the sub­stitution in the said will *."’

The same rule is applicable to general clauses in discharges, sub­missions, assignments, &c. which are limited by equity, when the words evidently appear to be more extensive than the will. Thus a general submission of all matters debatable is not understood to reach land or other heritable rights : and a general clause in a submission was not extended to matters of greater consequence than those expres­sed . A had a judgment of L. 6000 against B. B gave A a legacy of L. 5, and died. A, on receipt of this L. 5, gave the executor of B a release in the following words: ‘"I acknowledge to have received of C five pounds left me as a legacy by B, and do release to him all demands which I against him, as executor of B, can have for any matter whatever."’ It was adjudged, That the generality of the words all demands should be restrained by the particular occasion mentioned in the former part thereof, viz. the receipt of the L. 5 le­gacy, and should not be a discharge of the judgement .

If equity will not sustain a deed where the words go inadvertently beyond the intention of the granter, much less will it sustain a deed where the words go cross to intention. Charles Farquharson writer, being in a sickly condition, and apprehensive of death, executed, in the year 1721, a settlement of all the effects real and personal that he should be possessed of at his death, in favour of his eldest brother Pa­trick Farquharson of Inverey, and his heirs and assignees; reserving a power to alter, and dispensing with the delivery. Charles was at that time a bachelor, and died so. He recovered however his health, and not only survived his brother Patrick, but also his brother's two sons, who successively enjoyed the estate of Inverey. Patrick left daughters; but as the investitures of the estate were taken to heirs­male, Charles succeeded, died in possession of the estate, and trans­mitted the same to the next heir-male. Against this heir-male a pro­cess was brought by the daughters of Patrick, founded upon the [Page 129] above-mentioned settlement 1721; subsuming, That Charles the ma­ker died infeft in the said estate of Inverey; and therefore that this estate, by force of the said settlement, and by the express tenor of it, must go to the pursuers, as being the heirs of Patrick Farquharson. It was answered by the heir-male, That Charles's evident purpose and intention, in making this deed, was to augment the family-estate, by settling his own acquisitions upon Patrick, the head of the family; that this purpose was fulfilled by the coalition of both estates in the defendant, the present head of the family; that the pursuers demand of separating the two estates, and of taking from the representative of the family the family-estate itself, was contradictory to the said purpose: and therefore, supposing the action to be founded on the words of the deed, a court of equity will not sustain an action that tends to give words an effect not only without intention, but even in contradiction to it. ‘"The court judged, That the pursuers had no action upon the deed 1721 to oblige the defendant to denude of the estate of Inverey *."’

A contract of marriage, in which the estate was provided to the heirs male of the marriage, whom failing to the husband's other heirs-male, contained the following clause: ‘"And seeing the earl­dom of Perth is tailzied to heirs-male, so that if there be daughters of the marriage they will be excluded from the succession; there­fore the said James Lord Drummond and his heirs become bound to pay to the said daughters, at their age of eighteen or marriage, the sums following, viz. to an only daughter 40,000 merks,"’ &c. The estate being forfeited for treason committed by the heir-male of the marriage, a claim was entered by the only daughter of the mar­riage; against which it was objected, That the provision not being to younger children in general, but to females only, upon the inductive cause of the estate's being entailed to heirs-male, could only be in­tended to take effect failing issue-male of the marriage; and that here inadvertently the words are more extensive than the will. It carried however by a narrow plurality to sustain the claim : But the judgement was reversed in the House of Lords.

SECT. II. Operation of deeds and covenants beyond what is authorised by declared will.

TO understand a deed or covenant to be no further effectual than as far as will is declared or expressed, is a lame and imperfect notion of these legal acts. Many deeds and many covenants have ef­fects that are not expressly provided for; which will thus appear. Every rational man who wills expressly to bestow a right, wills at the same time, though not expressly, to bestow every accessory or sub­ordinate right that tends to make effectual the principal right; for he that wills the end, must be presumed to will the means proper to ac­complish the end. But whatever a rational man wills, every man is presumed to will. And hence thefoundation of what in law-language is termed implied will; that is, will presumed without being declared. And it is happy for man to be so constituted with respect to the fa­culty that binds him; for if in conscience he were only bound to the articles declared or expressed, deeds and covenants would often fall short of their purposed end; and, still worse, would often be the source of injustice.

Before entering into the particulars that belong to this section, it must be premised in general, that every question concerning implied will is appropriated to a court of equity; because a court of common law regards not any act of will but what is expressed.

Upon the principle mentioned, every lease of land, long or short, must necessarily imply a power to remove tenants, where the granter of the lease does not himself undertake to remove them; for to grant a lease intitling the lessee to enter to possession, and yet to with-hold from him the means of obtaining possession, is an absurdity of which no rational man can be guilty.

A man who becomes bound to dispone a debt, will by implied con­sent be bound to convey every execution done upon it. And suppose he has granted the assignment without mentioning the execution, it is however understood to be convey'd by implied will.

A disposition of an infeftment of annualrent mentioned only the real right, omitting a personal obligation that the debtor was under to pay the debt. The court judging that it was the intention of par­ties to put the disponee in place of the disponer, without any view to [Page 131] benefit the debtor, sustained a personal action against the debtor at the instance of the disponee, in order to fulfil the said intention *. In a reduction ex capite inhibitionis at the instance of the assignee to a bond upon which an inhibition had been led, the court sustained the assignment as a title, though it neither mentioned the inhibition, nor had any general clause that could comprehend it. But it was under­stood to be the intention of the cedent to put the assignee in his place, without any view to relieve the debtor; and therefore his will to convey the inhibition along with the debt was implied . The only scruple here is the conveying an inhibition or a personal obliga­tion without writ. But where the principal subject is convey'd in a formal writ, it is not necessary that every accessory be expressed.

When a man infefts his wife in land for security of her jointure payable in corn, it cannot be his intention, without any benefit to himself, to free his tenants from the obligation they are under to car­ry their farm-victual to the place of sale; and therefore his will is implied to convey to his wife this service of the tenants as a natural accessory to her right .

The nicety in cases of this kind is, to determine from what circum­stances will is to be implied. With respect to this point, peculiar atten­tion ought to be given to the purposed end, and to what would have been the will of the parties had the thing occurred to them. The su­perior of a feu-right, which was voidable propter non solutum canonem, disposes of the superiority for a valuable consideration; and the que­stion is, Has the purchaser a title to insist in a reduction of the feu? It is an accessory of the superiority, but not so connected but that it may be easily disjoined. A reduction of this kind is a severe punish­ment, which every one is not inclined to put in execution; and for that reason the conveyance of the privilege to the purchaser ought to be expressed, for it will not readily be implied . If it would be wrong in a court of equity to imply a conveyance of any right or privilege without any rational presumption of the granter's will, it would be a still greater wrong to decree any thing contradictory to the declared will; which, however, seems to have been done in the following case. The sum of L. 120 was given with an apprentice; and as the master was sick when the articles were drawn, it was provided, that if he died within a year L. 60 should be returned. He having died within [Page 132] three weeks, a bill was brought in chancery to have a greater sum returned. And though an express provision had been made with re­spect to that very event, yet it was decreed that a hundred guineas should be returned *.

Where a discharge is granted of the principal debt, accessories are understood to be comprehended by the implied will of the person who grants the discharge. For example, an agent employ'd to carry on a process, states an account without any article for his pains. He receives payment of the sum in the account, and grants a discharge in full, without reservation of any claim for his pains. Under this discharge will be comprehended the said claim, either as passed from, or as otherwise satisfied. An implied discharge is extended to a still straiter case: an extract of a decree implies a passing from any claim for costs of suit, however litigious the antagonist may have been; for no rational man will extract his decree if he have any view to claim costs of suit.

SECT. III. How far defects in a deed or covenant can be supplied.

BEfore entering upon particulars, it must be premised in general, that a court of common law cannot supply any imperfection ei­ther in a deed or in a covenant. Such extraordinary power is reser­ved for a court of equity, authorised by the principle ‘"That where a right is created it ought to be made effectual."’ Hence a practical rule to guide us through all the mazes of this intricate subject: Where-ever it appears to be the will of the granter of a deed, or of parties engaged in a covenant, to create a right, it is the duty of a court of equity to supply every defect in order to make the right ef­fectual. If there be no right created, a court of equity has not power, more than a court of common law, to supply any defect. For this in effect would be to create a right; or, in other words, to make a will for a man who has made none for himself: a court of equity cannot make a deed for an individual, more than it can make a sta­tute for the whole people.

ART. I. Where essential articles are by oversight omitted.

A MORTGAGE or contract of wadset contains the usual clause of consigning the money in case of refusal. The place of consignation is fixed; but by oversight a consignator is not named. The court of session will supply this defect by naming a consignator. The re­verser is intitled to redeem his land; and it would be inconsistent with justice that he should be forfeited of his right by a mere oversight: a court of equity is authorised to supply the defect, upon the foresaid principle That where there is a right it ought to be made effectual.

A wadset was granted to be held of the superior, and infeftment passed accordingly; but the reverser omitted to provide, that, upon redemption, the wadsetter should surrender the subject in the supe­rior's hands for new infeftment to the reverser; which was necessary to restore him to his former situation. The court supplied this defect, and decreed the wadsetter to grant a procuratory of resignation *.

ART. II. Where the intention is to settle a sum upon a person, less or more in different events; and the event that happens is by oversight omitted.

A MAN believing his wife to be pregnant, left a legacy to a friend in the following terms; ‘"That if a male child was brought forth, the sum should be 4000 merks; if a female, 5000 merks."’ The wife produced no child; and the question is, Whether any sum was due to the legatee, and what that sum should be? In this case it is clear, that the testator intended a legacy to his friend in all events; for if the friend was to have a legacy even in case of a child, much more if there should be no child. The question then is, Whether omission by oversight of the event that really happened, ought to disappoint the testator's will, who in all events intended a legacy? If this were to be the effect, law might justly be accused of harsh­ness and severity. It is one of the useful branches of judicial power, to give the utmost effect to the settlements of those who are no long­er in this world to act for themselves: a man dies in peace, when he trusts that his deeds will be made effectual, fairly and candidly, according to his intention. The court accordingly judged the high­est sum due ex praesumpta voluntate teslatoris . The court could not [Page 134] go further without exerting an act of power altogether arbitrary; be­cause they had no data for determining what further length the testa­tor himself would have gone.

But now in the case proposed, what if the wife had brought forth twins? In that event it is far from being certain, that the testa­tor would have given any legacy to his friend; and if his intention be uncertain, the legatee can have no claim. I venture to urge this even against the opinion of Julianus, the most acute of all the wri­ters upon the Roman law: ‘"Si ita scriptum sit, Si filius mihi natus fuerit, ex besse heres esto, ex reliqua parte uxor mea heres esto; si vero filia mihi nata fuerit, ex triente heres esto, ex reliqua parte uxor heres esto: et filius et filia nati essent, dicendum est, assem distribuen­dum esse in septem partes, ut ex his filius quatuor, uxor duas, filia unam partem habeat: ita enim secundum voluntatem testantis, fi­lius altero tanto amplius habebit quam uxor, item uxor altero tanto amplius quam filia. Licet enim subtili juris regulae conve­niebat, ruptum fieri testamentum, attamen quum ex utroque nato testator voluerit uxorem aliquid habere, ideo ad hujusmodi senten­tiam humanitate suggerente decursum est; quod etiam Juventio Celso apertissime placuit *."’

In a contract of marriage there was the following clause. ‘"And in case there shall happen to be only one daughter, he obliges him to pay the sum of 18,000 merks; if there be two daughters, the sum of 20,000 merks, whereof 11,000 merks to the eldest, and 9000 to the youngest; and if there be three daughters, the sum of 30,000 merks, 12,000 to the eldest, 10,000 to the second, and 8000 to the youngest."’ A fourth daughter having existed of the marriage, the question occurred, Whether she could have any share of the 30,000 merks, upon the presumed will of the father, or be left to insist for her legal provision ab intestato. The court decreed 4500 merks as her proportion of the 30,000 merks; so as to restrict the eldest daughter to 10,500 merks, the second to 8500, and the third to 6500 . Though the existence of a fourth daughter was a casus incogitatus, for which no provision was made; yet as it appear­ed to be the father's intention to provide for all the children of that marriage, there was a right created in the fourth daughter by this intention, which intitled her to a share of the 30,000 merks.

[Page 135] The following case stands upon the same foundation. ‘"Clemens Patronus testamento caverat, ut si sibi filius natus fuisset, heres esset: si duo filii, ex aequis partibus heredes essent: si duae filiae, similiter: si filius et silia, filio duas partes, filiae tertiam dederat. Duobus filiis et filia natis, quaerebatur quemadmodem in proposita specie partes faciemus: cum filii debeant pares, vel etiam singuli duplo plus quam soror accipere. Quinque igitur partes fieri oportet, ut ex his binas masculi, unam foemina accipiat *."’

The estate of Cromarty being entailed in favour of heirs-male, the Earl, in his contract of marriage, anno 1724, ‘"became bound, in case of children of the marriage who shall succeed to and enjoy the estate, to infeft his lady in a liferent-locality of forty chalders victual; and in case there be no children of the marriage who shall succeed to and enjoy the estate, he became bound to make the said locality fifty chalders."’ To which there is added the fol­lowing clause, ‘"That if at the dissolution of the marriage there be children who shall succeed to and enjoy the estate, but who shall afterwards decease during the life of his said spouse, she from that period shall be intitled to fifty chalders, as if the said children had not existed."’ The Earl of Cromarty being forfeited in the year 1745, having issue both male and female, a claim was entered by his lady for her jointure of fifty chalders, to take place after her husband's death. Objected by his Majesty's Advocate, That she is intitled to forty chalders only, there being sons of the mar­riage, who, but for the forfeiture, would succeed to the estate. Ta­king the words of the contract strictly according to the principles of common law, the claim must be restricted to forty chalders; be­cause it cannot be said literally, that there are no children of the marriage who can succeed to and enjoy the estate. But the for­feiture is plainly a casus incogitatus, about which the parties interpo­sed no will; and equity dictates that the lady ought not to suffer by this oversight, but that the same ought to be supplied by the court, provided it can be made evident what would have been the will of the parties had the event been foreseen. About this there can be no doubt; for if the Earl was willing to give a jointure of fifty chalders to his spouse, in case his brother or his nephew should succeed to his estate, multo magis in the case of a forfeiture. The claim accordingly was sustained for fifty chalders .

ART. III. Where a settlement is made in the prospect of one event only, no other being foreseen; and instead of that event another happens.

I GIVE an example that will be a key to the whole. An old ba­chelor, having no prospect of issue because he had no intention to marry, makes a settlement of his estate by disponing the same to a near relation, and to a certain series of heirs, reserving his own life­rent, with a power to alter. He takes a different thought, marries, and dies suddenly, without altering his settlement, leaving his wife pregnant. A male child is born, and claims the estate. The settle­ment will be supported at common law, because the words are clear for the disponee. And as the granter's will is also for him in ex­press terms, it is not obvious upon what principle a court of equity can interpose to overturn this settlement, without making a new will for a man who made none for himself. Yet, on the other hand, it would be a conclusion in law extremely harsh, to exheredate this favourite child, upon no better ground than a mere oversight of his father, and to inforce a settlement in an event which the maker would avoid with horror were he alive. The following argument promises to extricate us from this dilemma. The will of the maker in favour of the disponee, is not absolute to take place in all events; but only upon supposition of what he took for granted, that he was to have no issue. Therefore in the event that has happened the dis­ponee cannot say that the will of the maker is for him: consequent­ly the settlement gives him no right. For the sake of illustration, it may be added, that there is no difference in substance between a limited will, such as that under consideration, and a will that is conditional; for the binding act of the will is equally qualified by both: the difference is with respect to evidence only; the same act of will that is said to be limited when the limitation is left to be gathered from circumstances, being termed conditional when the li­mitation is expressed and not left upon circumstances. For this rea­son, a limited will cannot create a more extensive right than a will that is conditional. This doctrine is by no means new, though put in a new dress; for what else is an implied condition so much talked of in the Roman law, but a limitation of will inferred from circum­stances? Hence it follows, that the settlement under consideration is void in equity, for the same reason that it would be void even at common law, if the condition ‘"failing heirs of the granter's body"’ had been expressed.

[Page 137] Another reason in equity concurs for voiding this settlement. The omission of the condition, ‘"failing heirs of the granter's body,"’ was plainly an oversight; and the disponee ought not in conscience to take advantage of that oversight ad lucrum captandum. This follows from the rule above laid down, That in damno evitando one may take advantage of an error, but not in lucro captando.

But where the child died in a few months, the settlement was sus­tained; because the child was not hurt by the settlement *.

The following case is precisely of the same nature. A man having lent a sum, and taken a bond for the same, payable to himself, and to his children nominatim in fee, equally and proportionally, with this provision, ‘"That in case of the decease of any of the said children, the share of the predeceasing child shall be equally divided among the survivors;"’ and one of the children, a son, having predeceased his father, leaving issue, the question occurred, Whether his share of the bond did not, in terms of the said clause, accrue to the survivors, exclusive of his issue. The court was of opinion, that the granter did not intend to exclude the issue of any of his predeceasing children; that he would have provided for said issue had the event been foreseen; and upon that medium they preferred the issue of the predeceasing son . Papinian, the greatest of the Roman lawyers, gives the same opinion in a similar case: ‘"Cum avus filium, ac nepotem ex altero filio, heredes instituisset, a nepote petiit, ut si intra annum trigesimum moriretur, hereditatem patruo suo restitueret: nepos, liberis relictis, in­tra aetatem suprascriptam vita decessit: fideicommissi conditionem, conjectura pietatis, respondi defecisse, quod minus scriptum, quam dictum fuerat, inveniretur ."’ This opinion is founded on sub­stantial equity; and yet the reason given appears to be slight and pre­carious. Our author supposes, that the testator, declaring his will, had provided for the issue of his grandchild, but that this provision had been casually omitted by the writer; which is cutting the Gor­dian knot instead of untying it. For what if this event was really o­verlooked? Supposing this to be the fact, we are left without a rea­son. The solid foundation of the opinion is, that a deed ought not to be made effectual in equity, when by oversight it extends to an event that was not meant to be comprehended. So much easier it is to judge or perceive what is right, than to give a solid reason for our judgment.

[Page 138] No person can hesitate about the application of this rule to unfore­seen events, which are brought about, not casually, but by the per­son in whose favour the deed is granted. A man having no male is­sue, settled his whole estate, real and personal, upon his eldest daugh­ter, with the following proviso, That she should pay 10,000 merks to her two sisters. The disposition, being granted on deathbed, was challenged by these sisters, and voided as to the land-estate. The question ensued, Whether they who by their challenge got more than the 10,000 merks, had a claim for that sum over and above. They urged their father's express will. But it being answered, That having overturned their father's will, they could not claim upon it; their claim was dismissed *. Here was not only an unexpected event, which would have been guarded against had it been foreseen; but further, the event, repugnant to the will of the granter, was the ope­ration of persons honoured by the deed, whose ingratitude justly bar­red them from taking any benefit by it. The following is a similar case. John Earl of Dundonald, by a bond of entail, made a settle­ment of his land-estate on his heirs-male: at the same time he settled his moveables by will; and also executed bonds of provision in favour of his daughters. These several deeds executed unico contextu, and re­maining with the granter undelivered, made a complete settlement of his estate real and personal; and proved it to be his intention, that his daughters should take nothing from him but their provisions. Af­ter the Earl's death, it being discovered that some of the lands con­tained in his entail had not been vested in him, but still remained in hereditate jacente of a remote predecessor, the daughters as heirs of line laid claim to these lands. It was objected, That they could not also claim their provisions, which were given them as being totally exclu­ded from the succession, and as not otherwise provided; because a deed calculated for one event cannot be effectual in another. ‘"The court judged, That the ladies could not claim their bonds of provi­sion and likewise the lands as heirs of line; but that they might claim one or other at their option ."’

From the doctrine thus illustrated, it may be established as another rule in equity, That a person honoured in a deed, who counteracts the will of the granter declared in the deed, can take no benefit by it.

Reflecting upon the foregoing doctrine, we perceive a remarkable difference between a donation completed by a transference of proper­ty, [Page 139] and a donation incompleted, which requires an action against the donor or his heirs. In the former case, no unforeseen event will be sufficient to restore the property to the donor: there is no principle of law nor of equity upon which such an action can be founded. In the latter case, an unforeseen event makes it the duty of a court of equi­ty to deny action, and consequently to render the donation ineffectual, unless the granter or his heir be so scrupulously moral, as of their own accord to fulfil it.

The same rule holds where the granter is alive, supposing only he have put it out of his power to alter; for so long as the deed is under his own power, he has no occasion for an equitable relief. When an obligation, relative to a certain event expected, is sought to be made effectual in an unexpected event, a court of equity denies its authori­ty. This rule with respect to the living shall be illustrated by several examples. A disposition of land granted by a man to his wife was ratified by the heir, who in the same deed bound himself to purge in­cumbrances affecting the land, ‘"upon the view and in contemplation of succeeding to the rest of the estate,"’ as expressed in the deed of ratification. The heir being charged by the widow to purge incum­brances, the following reason of suspension was sustained, That the heir was excluded by an expired apprising of the whole estate, of which he was ignorant when he granted the ratification; and that this fact must liberate him from his obligation, to grant which he could have no other motive but the prospect of enjoying the estate *. Equity here justly relieved from an obligation that was calculated for an event opposite to that which happened.

Donations mortis causa are regulated by the same principle. A man having a near prospect of death, executes a deed in favour of a rela­tion or friend, without reserving a power of alteration. Contrary to expectation he recovers, and lives several years. The deed is effectual at common law; but the granter is relieved in equity, because the deed was made with a view to an event that did not happen.

SECT. IV. A deed or covenant considered as a mean to an end.

WHere a deed is granted, or a covenant made, in order to bring a­bout some event, the event as the end is chiefly in view, and the deed or contract is not effectual in conscience or in reason farther [Page 140] than as a mean to bring about the end. A deed or covenant calcula­ted with perfect foresight to bring about the desired end, is binding in justice; for in that case there can be no pretext for with-holding performance: but if a deed or covenant, by ignorance or mistake, an­swer not the end for which it was made, a court of equity will not make it effectual. For considering it to be a mean, the objection a­gainst it is invincible, That no mean ought to be regarded but as far as it tends to accomplish the end. To think otherwise is to suppose the performance of the deed or covenant to be the ultimate end, and not the mean to the ultimate end.

ART. I. Where, by mistake, the means provided in the deed or covenant tend not to bring about the desired end.

THE most noted case that comes under this article, is where goods, by some latent insufficiency, answer not the end for which they are bought. Though the vender be in bona fide, yet the purchaser is re­lieved in equity from performance. Thus in purchasing wine for drinking, though I put my mark upon a particular hogshead as the product of a certain vineyard, to be delivered to me at a price named; yet if upon trial it prove sour, and be unfit for drinking, I am not bound to receive it however precise the bargain was.

A large cargo of strong ale was purchased from a brewer in Glas­gow, in order to be exported to New York. In a suit for the price the following defence was sustained, That it was not properly prepared for the heat of that climate; and that accordingly it had bursted the bottles, and was lost. It was not supposed that the brewer had been guilty of any wilful wrong; but this defence was sustained up­on the following rule of equity, That a man who purchases goods for a certain purpose, is not bound to receive them unless they answer that purpose; which holds a fortiori where the vender is himself the ma­nufacturer. And where the insufficiency cannot be known to the pur­chaser but upon trial, the rule holds even tho' the goods be delivered to him. It was also in view, that if the brewer be not answerable for the sufficiency of ale sold by him for the American market, that branch of commerce cannot be carried on *.

An insolvent debtor makes a trust-right in favour of his creditors; and among his other subjects, dispones to the trustees his interest in a company-stock. A stranger, who by furnishing goods to the com­pany became creditor to the bankrupt as one of the company, and [Page 141] likewise was clearly preferable upon the company-stock before the bankrupt's private creditors, being ignorant of his preference, accedes to the trust-right, and consents to an equal distribution of the bank­rupt's effects. Being afterward informed of his preference, he re­tracts, while matters are yet entire. Quaer. Is he bound by his agree­ment? He undoubtedly draws by it all the benefit he had a prospect of; and considering the agreement singly, without relation to the end, he is bound; and so says common law. But equity considers the end and purpose of the agreement; which is, that the stranger shall draw such proportion of the bankrupt's effects as he is intitled to by law. The means concerted, viz. that he shall draw an equal proportion, contribute not to this end, but to one very different, viz. that he shall draw less than what is just, and the other creditors more. Equity re­lieves from an engagement where such is the unexpected result; there being no authority from the intendment of parties to make it obliga­tory where it answers not the purposed end.

Having laid open the foundation in equity for giving relief against a covenant where performance will not answer the end proposed by it, I proceed to examine whether there be any relief in equity after the covenant is fulfilled. I buy, for example, a lame horse unfit for work; but this defect is not discovered till the horse is delivered, and the price paid. If the vender hath engaged to warrant the horse as sufficient, he is liable at common law to fulfil his covenant. But supposing this paction not to have been interposed, it appears to me not at all clear, that there is any foundation in equity for voiding the sale thus completed. The horse is now my property by the purchase, and the price is equally the vender's property. If he knew that the horse was lame, he is guilty of a wrong that ought to subject him to the highest damages: but supposing him in bona side, I see no ground for any claim against him. The ground of equity that relieves me from paying for a horse that can be of no use, turns now against me in favour of the vender; for why should he be bound to take my horse that can be of no use to him, more than I was formerly bound to take his horse that could be of no use to me? The Roman law in­deed gave an actio redhibitoria in this case, obliging the vender to take back the horse and to return the price. But I discover a reason for this practice in a principle of the Roman law, that will not square with our practice, nor with that of any other commercial nation. The principle is That such contracts as are intended to be equal, ought to answer the intention: and therefore in such contracts the Roman Pretor never permitted any considerable inequality. Hence the actio quanti minoris, [Page 142] which was given to a purchaser who by ignorance or error paid more for a subject than it is intrinsically worth: and it follows upon the same plan of equity, that if a subject be purchased which is good for nothing, the actio quanti minoris must resolve into an actio redhibitoria. But equity may be carried so far as to be prejudicial to commerce by encouraging law-suits; and for that reason we admit not the actio quanti minoris: the principle of utility rejects it, experience having demonstrated that it is a great interruption to the free course of commerce. The same principle of utility rejects the actio redhibitoria as far as founded on inequality; and after a sale is completed by deli­very, I have endeavoured to show, that if inequality be laid aside, there is no foundation for the actio redhibitoria. In Scotland, however, though the actio quanti minoris is rejected, the actio redhibitoria is ad­mitted where a latent insufficiency unqualifies the subject for the end with a view to which it was purchased. This practice, as appears to me, is out of all rule. If we adhere strictly to equity without regard­ing utility, we ought to sustain the actio quanti minoris as well as the actio redhibitoria. But if we give way to utility, the great law in com­mercial dealings, we ought to sustain neither. To indulge disputes about the true value of every commercial subject would destroy com­merce: and for that reason, equity, which has no other object but the interest of a single person, must yield to utility, which regards the whole society.

The doctrine above delivered will be finely illustrated by applying it to erroneous payment, or solutio indebiti, which makes a great figure in the Roman law. Of erroneous payment there are two kinds clear­ly distinguishable from each other: one where a debt is erroneously supposed to exist that is extinguished, or perhaps never existed; and one where there is really a debt, but the person who pays is not debtor.

To explain what equity dictates with respect to erroneous payment of the first kind, several cases shall be stated that give light to each other. I begin with the case of a bonded debt, which, after being extinguished by payment, is purchased bona fide for a valuable consi­deration; and the debtor's heir, ignorant of the extinction, grants a bond of corroboration to the assignee. After the granting this bond of corroboration, but before payment, the extinction of the bond corroborated comes to be discovered; and, to make the question of importance, we shall suppose that the cedent or assignor becomes bankrupt after the date of the bond of corroboration. Both parties here are certantes de dammo evitando: if the bond of corroboration be [Page 143] made effectual, the debtor is forc'd to pay a debt that is not due: if on the other hand he be relieved from it, the assignee loses the valu­able consideration he paid to the cedent. What does equity rule in this case? Upon the principle above laid down, it relieves against the bond of corroboration. A corroborative security is not intended to create a new debt, but only to secure the payment of one already due; and therefore no claim can in equity be founded on the bond of corroboration independent of the debt corroborated: if the debt corroborated be imaginary, the bond of corroboration must go for nothing: it possibly may be worded in absolute terms, viz. to pay the sum stipulated at a precise day; but words against or beyond in­tention cannot operate in equity. For this reason I cannot agree to the following opinion: ‘"Si quis indebitam pecuniam, per errorem, jussu mulieris, sponso ejus promisisset, et nuptiae secutae fuissent, ex­ceptione doli mali uti non potest. Maritus enim suum negotium gerit; et nihil dolo facit, nec decipiendus est: quod fit, si cogatur indotatam uxorem habere. Itaque adversus mulierem condictio ei competit, ut aut repetat ab ea quod marito dedit, aut ut liberetur, si nondum solverit *."’ This reasoning is not satisfactory. The husband indeed is not in mala fide to demand what is promised him; but neither is his party in mala fide for refusing to pay a debt a second time: and equity will not compel a man to perform a promise, when performance cannot answer the end for which the promise was made.

Let us next suppose, that the sum contained in the bond of corro­boration is actually paid. Whether in this case is the assignee bound to restore the money, when it is discovered that the debt corrobora­ted was imaginary, and that nothing was due? Neither equity nor common law gives relief in this case. The property of the money paid is transferred to the assignee; and it is an inviolable rule of e­quity as well as of common law. That no man can be forfeited of his property who is guilty of no fault. Neither is the money in his hand sine causa, for the sum he gave to the cedent is a just cause. Comparing this case with the former, the matter turns out as it fre­quently doth in point of equity, quod potior est conditio possidentis. If the sum be promised only, equity relieves from payment: but if it be paid, there is no foundation in equity for depriving the assignee of his property. Thus a creditor, after obtaining a partial payment, assigned the whole sum for security of a debt due by him to the as­signee. The assignee, having got payment of the whole from the [Page 144] debtor, ignorant of the former payment, was, upon discovery of the fact, sued for restitution condictione indebiti. He put his defence upon l. 44. condic. indeb. insisting, that he received no more than what was due to him by the cedent, that suum recepit, and that he was not bound to restore what he got in payment of a just debt. The defence accordingly was sustained *. The following decision is of the same nature. An heir having ignorantly paid a debt to an assignee for a valuable consideration, and several years thereafter having discovered that his ancestor had paid the debt to the cedent, he insisted in a con­dictio indebiti against the assignee, and the defendant was assoilzied . I mention this case the rather, because, along with the general de­fence above mentioned, That a man cannot be deprived of his pro­perty who is not guilty of any fault, a separate defence in equity a­rose from the following circumstance, that after the erroneous pay­ment the cedent became bankrupt. Laying hold of this circumstance, the assignee argued, That, trusting to the payment, he had neglect­ed to secure himself by an action of warrandice, which would have been effectual to him while the cedent continued solvent; and that the cedent's bankruptcy ought not to affect him, but the pursuer, by whose mistake the loss was occasioned. What is said above will clear­ly show, that the following decision is erroneous. An executor-credi­tor having confirmed a debt as due to the deceased, and having upon that title obtained payment from the debtor's heir, was decerned to restore the money, it being afterward discovered, that the debt had been paid to the original creditor .

We proceed to the case where there is really a debt, but where the person who pays is not debtor. This case seems to have divided the writers on the Roman law. To the person who thus pays erroneous­ly, Pomponius affords a condictio indebiti . Panlus does the same **. Yet this same Paulus in another treatise refuses action ††. The solu­tion of this question seems not to be difficult. Supposing the debt to be extinguished by this erroneous payment, a condictio cannot be sus­tained against the creditor; for it would be grossly unjust to deprive him both of his debt, and of the sum he received in payment of it. But the following reasons evince that the debt is not extinguished by the erroneous payment. 1st, If the creditor, upon discovering the mistake, should think proper to restore the money, there is nothing [Page 145] in law to bar such transaction: and if so, it is clear that the debt must remain entire. 2d, The true debtor, notwithstanding the erro­neous payment, is intitled to force a discharge from the creditor, upon offering him payment; which he could not do if he did not still con­tinue debtor. Whence it necessarily follows, that the creditor holds this money sine justa causa; and consequently, that a condictio indebiti against him is well founded.

The legal consequences of payment made knowingly of a debt due by another, are handled book 1. part 3.

ART. II. Where an unforeseen accident renders ineffectual the means pro­vided in the deed or covenant to bring about the desired end.

CONTRACTS shall furnish the first examples. In a bargain of sale, the price is referred to a third party: the referee dies suddenly without determining the price; and there is no performance on either side. There being no remedy here at common law, because the price is not ascertained, can a court of equity supply the defect in order to make the bargain effectual? This question depends upon what the parties intended by the reference. If they intended not to be bound but by the opinion of the referee, it is in effect a conditional bargain, never purified; according to which construction there is no place for equity, because there is no defect in the bargain, nor any right created to either party. But if the parties intended that the sale should in all events be effectual, which will be presumed as the more rational construction, a right upon that supposition is created to each party, intitling the one to the subject and the other to the value; and it is the duty of a court of equity to make these rights ef­fectual, by supplying the defect, and naming a price secundum arbitrium boni viri.

A man having purchased land, gave a backbond obliging him­self to redispone, upon the vender's repaying the price within a time limited. The vender having died before the day named, the land was found legally redeemed, upon the heir's offering the price before elapsing of the term *. It was justly understood to be the intend­ment of the transaction, that in all events the vender should have the full time agreed on for redemption; and to make this right effectual, his heir was admitted in his stead.

A gentleman having given a bond of provision to his sister for [Page 146] 3000 merks, took a backbond from her, importing, ‘"That the sum being rather too great for his circumstances, she consented that the same should be mitigated by friends to be chosen hinc inde, her mother being always one."’ After the mother's decease, the brother's creditors insisting for a mitigation secundum arbitrium boni viri, it was answered, That the condition of the mitigation had failed by the mo­ther's death, and therefore that the bond must subsist in totum. Which accordingly was the result, because the court refused to interpose *. Supposing the backbond to be merely a gratuitous deed, and conditio­nal, the judgement is right. But if the backbond be held to be the counter part of the bond, each of them a branch of a mutual engage­ment, which seems to be the more natural construction, it may be doubted whether the brother was not in all events intitled to a miti­gation.

The next examples shall be from deeds. The minister of Weem, in a deed of mortification, settled his funds upon five trustees and their successors, for the use of the schoolmasters of that parish, de­claring the major part of the trustees to be a quorum. Two only of the trustees having accepted and intermeddled with the funds, a process was brought against them by the representatives of the mi­nister, claiming the funds, which were still in the hands of the tru­stees unapplied, upon the following ground, That the deed of mor­tification is ineffectual, not having been completed by acceptance of a quorum of the trustees. It was answered, That by the deed of mortification assigning the funds to trustees for the use of the school­masters of Weem, a right was vested in these schoolmasters, which the trustees, by not-acceptance, could not defeat; and that suppose the whole of them had refused to accept, an action would lie against them at the instance of the schoolmaster, to denude in favour of o­ther trustees to be named by the court. The deed of mortification was sustained; the court being of opinion, that it would have been effectual though the whole trustees had declined acceptance . I il­lustrate this by an opposite case, where no right was created by the deed. Lady Prestonfield executed a settlement of considerable funds to Sir John Cunninghame, her eldest son, and Anne Cunninghame, her eldest daughter, as trustees for the ends and purposes following. 1mo, The yearly interest to be applied for the education and support of such of the granter's descendants as should happen to be in want, [Page 147] or stand in need thereof, and that at the discretion of the trustees. 2do, Failing descendants, the capital is to return to her nearest heirs. The trustees declining to accept this whimsical settlement, a process for voiding it was brought by the heir at law, in which were called all the existing descendants of the maker. It was urged, That by this settlement there is no right vested in the defendants, nor in any other descendant of the maker; because all is left upon the discre­tion of the trustees, who cannot be compelled by law, supposing their acceptance, to give a penny to any particular descendant; that the settlement is void by the non-acceptance of the trustees; that the funds thereby belong to the pursuer, heir at law; and that there is no equity to deprive the pursuer of his property for the behoof of the defendants, who have in no event a legal claim. The deed was declared void by non-acceptance of the trustees *. Here the court justly refused to supply other means for making the will of the deceased effectual; because, by the whole tenor of the settlement, it appeared to be her will, that all should be left upon the discretion of the trustees named, and no purpose was expressed to give her descend­ants any right independent of these trustees.

Colonel Campbell being bound in his contract of marriage to se­cure the sum of 40,000 merks, and the conquest during the marriage, to himself and spouse in conjunct fee and liferent, and to the chil­dren to be procreated of the marriage in fee, did, by a deathbed­deed, settle all upon his eldest son, burdened with the sum of 30,000 merks to his younger children, to take place in case their mother should give up her claim to the liferent of the conquest, and restrict herself to a less jointure; otherwise these provisions to be void; in which event it was left upon the Duke of Argyle and Earl of Ilay to name such provisions to the children as they should see convenient. The referees having declined to accept the trust reposed in them, the question occurred between the heir and younger children, Whether the powers of the referees were devolved upon the court of session to determine provisions to the younger children secundum arbitrium boni viri; or whether the younger children were to be left to the claim they had by the contract of marriage? The court was of opinion, that the Duke of Argyle and Earl of Ilay having declined to exe­cute the powers vested in them by Colonel Campbell, their powers are not devolved upon this court tanquam boni viri . This judge­ment [Page 148] cannot be justified upon any ground other than that of hold­ing the determination of the Duke of Argyle and Earl of Ilay as a condition, without which the children were not to have a provision. The settlement appears to me in a different light. The Colonel's will to provide his younger children in all events, is clearly expressed. As he was doubtful what the sum should be in case their mother in­sisted upon her jointure, he left it upon the referees to name the sum, not doubting their acceptance. This reference I consider to be the means chosen by the Colonel for accomplishing his purpose of pro­viding his children; but not so as to exclude all other means. His younger children were intitled to a provision by his will; and failing the means chosen by him for ascertaining the extent, justice required that other means should be substituted, in order to make their claim effectual. This case resembles very much that above mentioned concerning a sum settled upon trustees for the use of the schoolma­sters of Weem. The settlement upon trustees was a means only for making the mortification effectual; and the failure of the tru­stees could have no other effect but to make way for supplying other means.

ART. III. Where the means provided in the deed or covenant tend, by an unforeseen accident, to disappoint the desired end.

JAMES THOMSON, in his marriage-contract, provides his estate and conquest to the heirs of the marriage. His eldest son, being idle and profligate, contracted debts, and became bankrupt; which in­duced the old man to make a settlement upon the said son in life­rent, and upon his heirs in fee. The bankrupt's creditors, after the father's death, brought a reduction of this settlement, as in defraud of the marriage-contract. The court assoilzied the defenders upon the following ground, That though the bankrupt was intitled to the fee at common law, yet in a contract intended for the benefit of those who should spring from the marriage, it could not be the in­tention of the contractors to secure the estate to creditors in case of the heir's bankruptcy. The case was put of the heir being forfeited for treason; and it was the opinion of all the judges, that he could in this case be removed from the succession. The governing princi­ple is, That no man is bound to fulfil his obligation when it fails to bring about the end that was intended by it *.

ART. IV. Where the deed or covenant itself is voided by an unforeseen ac­cident, can other means be supplied for accomplishing the desired end?

A GRATUITOUS bond by a minor being voided at the instance of his heir, because a minor cannot bind himself without a valuable consideration, the obligee insisted for an equivalent out of the move­ables left by the minor, upon the following ground, That the bond implied a legacy, which the minor could have granted by making a testament. It was yielded, that if the heir's challenge had been fore­seen, the minor would probably have given a legacy instead of the bond; but that as the minor had not exerted any act of will with re­spect to a legacy, the court could not make a testament for a man who had not made one for himself. The court accordingly refused to transubstantiate the bond into a legacy *. In this case, as it ap­pears to me, the ratio decidendi is taken from common law, not from equity. One thing seems clear, that the minor intended in all events to bestow the sum named upon his friend the obligee; for if he was willing to bind himself personally to pay the sum, he could not have the least hesitation to bind his representatives by bequeathing it as a le­gacy. And if this be admitted, the consequence is fair, that the friend thereby acquired a right, which it was the duty of the court of session to make effectual, by sustaining a claim against the execu­tor in the same manner as if the sum had been a legacy. Considering this matter in a different light, I can discover no good reason why a minor, who can dispose of his moveables by testament, may not do the same in the form of a bond, dropping only the clauses that are more beneficial to the obligee than a legacy would be. So far a bond may be justly considered as a virtual legacy.

A gratuitous disposition of an heritable subject being voided be­cause granted on deathbed, the disponee claimed the value from the executor, presuming that the deceased would have given an equiva­lent had he foreseen the event. Decreed, That the disposition could not affect the executry, either as a debt, or as a legacy . This judgement must be approved; for it is far from being clear that the value of the heritable subject was intended in all events to be made effectual to the disponee. It may be a man's will to alien from his [Page 150] heir an heritable subject, though he would not burden his executors with the value, supposing them to be a number of younger children. This argument goes on the supposition that the disponer knew the subject to be heritable. But what if by mistake he took it to be moveable? This is more doubtful. And yet even upon that suppo­sition it would be bold to give an equivalent; because a man may have motives for bestowing upon his friend a certain subject, who would not be disposed to burden either his heir or executor with an equivalent sum.

The reasoning here coincides with that in the Roman law about a legatum rei alienae. If the testator leave a special legacy of a subject, believed to be his own, which after his death is discovered to belong to a stranger; the heir is not bound to give an equivalent, because here deficit voluntas testatoris. This in other words is saying as above, That it is not clear the testator intended in all events either the lega­cy or its value: the subject legated may be considerable; and possibly the testator would not have left it in legacy had he not considered it as making part of his stock. But if the testator knew that the sub­ject belonged to another, it must have been his will and intention, if he did not mean to play the fool, that it should be purchased by his heir for the legatee; and upon that supposition a right is created in the legatee, which ought to be made effectual by a court of equity.

A man makes a settlement of his estate on his eldest son in tail, with a power, by deed or will under seal, to charge the lands with any sum not exceeding L. 500. He prepares a deed, and gets it in­grossed, by which he appoints the L. 500 to his younger children, but dies before it is signed or sealed; yet this in equity shall amount to a good execution of his power, the substance being performed *. Here there could be no doubt about the man's will creating a right to his younger children. The power he reserved of charging the e­state by deed or will under seal, was not intended to make their right conditional, but to give them the highest security that is known in law. This security was indeed disappointed by the man's sudden death; but he had sufficiently declared his purpose of giving them L. 500, which afforded them a good claim in equity for that sum.

Provost Aberdein inclining to have a country-seat near the town of Aberdeen, and finding that Farquharson of Invercauld was willing to sell the lands of Crabston, within three miles of that town, the par­ties exchanged missive letters, agreeing, That the land should be dis­poned to the Provost in liferent, and to any of his children he should [Page 151] please in fee; and that the price should be L. 3900 Sterling. In pro­secution of this agreement, the title deeds of the estate were delivered to a writer, who, by the Provost's orders, made out a scroll of the dis­position to be granted by Invercauld to the Provost in liferent, and to Alexander, the only son of his second marriage, in fee: which being re­vised by the Provost, a disposition was extended upon the 12th June 1756, and dispatched to Invercauld at his country-seat, inclosed in the fol­lowing letter subscribed by the Provost: ‘"This will come along with the amended disposition, and upon its being delivered to me duly sign­ed, I am to put the bond for the price in the hand of your doer."’ Invercauld not being at home, the packet was delivered to his lady. As soon as he returned home, which was on the 21st of the said month of June, he subscribed the disposition, and sent it with a trusty hand to Aberdeen, to be delivered to the Provost. But the Provost, being taken suddenly ill, died on the 24th of June, a few hours before the express arrived at Aberdeen; by which means it happened, that the disposition was not delivered to him, nor the bond for the price grant­ed by him. This unforeseen accident gave rise to a question between Robert, the Provost's eldest son and heir, and the said Alexander son of the second marriage. For Robert it was pleaded, That to com­plete the said disposition, and to make it an effectual settlement of the lands of Crabston, the Provost's acceptance was requisite; that this act not having been interposed, the disposition remained an undeli­vered evident, not less ineffectual than if it had wanted the subscrip­tion of the granter; and that, laying aside this incompleted deed, the Provost's claim to the lands of Crabston, resting upon the mutual missives, must descend to his heir at law, seeing none of his children is named in these missives. It was answered for Alexander the son of the second marriage, That his father's will being clearly for him, the court of session as a court of equity ought to make that will effectual, however defective the powers of the court may be as a court of com­mon law. The son of the second marriage was accordingly pre­ferred *.

ART. V. Where the means reach inadvertently beyond the desired end.

A COURT of common law makes no other inquiry but what acts of will were really exerted, which are made effectual without the least regard to consequences. A court of equity, more at liberty to follow the dictates of refined justice, considers every deed and covenant in its [Page 152] true light of a mean employ'd to bring about some end; and in this light refuses to give force to it, farther than as conducive to the desi­red end. In all matters whatever, as well as in matters of law, the end is the capital circumstance; and means are regarded as far only as they contribute to the end. For a court then to put a deed or co­venant in execution beyond the purposed end, involves the absurdity of preferring the means to the end, of making that subordinate which is principal, and that principal which is subordinate. Such proceed­ing would be unjust as well as absurd: no man in conscience feels himself bound to perform any promise or covenant, further than as it contributes to the end or event for the accomplishing of which it was made; and it is inconsistent with the very nature of a court of equity, to compel a man to perform any act where he is not antecedently bound in conscience and duty.

A variety of irritancies contrived to secure an entail against acts and deeds of the proprietor, furnish proper examples for illustrating this article. Irritancies directed against the tenant in tail to restrain him from destroying the entail, are in effect resolutive conditions; and if so expressed as to declare the right voidable only, and not void ipso facto, any act of contravention may be purged before challenge, and even at any time before sentence upon a process of declarator. The difficulty arises from clauses declaring the contravener to fall from his right ipso facto upon the first act of contravention. One thing is clear, that the entailer's will must be obey'd; and therefore, if his meaning be truly expressed in an ipso sacto forfeiting clause, no court can restore the tenant in tail against the forfeiture. But suppo­sing the entailer to have only intended by this forfeiting clause to keep his heirs of entail to their duty, which in dubio will always be presumed; it may be doubted whether a court of equity ought not to interpose to relieve the tenant in tail from the forfeiture, upon his freeing the estate from his debts and deeds. On the one hand, we have the entailer's will declaring that an act of contravention shall operate a forfeiture ipso facto. But what weighs on the other hand is, that such irritancies being intended in terrorem only, and to preserve the estate entire to the heirs named in their order, the entailer's ulti­mate intention is fulfilled if the estate be relieved from the debts and deeds of the tenant in tail, and is disappointed if the forfeiture be per­mitted to have its full effect. Here then we have the entailer's will with respect to the means contradicted by his intention with regard to the end, so as that both cannot be obey'd: which, upon the ma­xim That the end ought to be preferred before the means, affords a [Page 153] fair opportunity for a court of equity to confine the operation of these means, so as to produce no effect beyond what is ultimately intended. This resolves into a general proposition, ‘"That where the means con­certed reach inadvertently too far, it belongs to a court of equity to deny any effect to these means beyond what is ultimately purposed."’ And accordingly it is always the practice of the court of session, as a court of equity, to sustain the offer of purging or freeing the estate, in order to relieve from the forfeiture.

The act 1685 concerning tailzies declares, ‘"That if the provisions and irritant clauses are not repeated in the rights and conveyances by which the heirs of tailzie bruik or enjoy the estate, the omission shall import a contravention of the irritant and resolutive clauses against the person and his heirs who shall omit to insert the same, whereby the estate shall ipso facto fall, accresce, and be devolved up­on the next heir of tailzie; but shall not militate against creditors,"’ &c. If the will of the legislature here expressed is to be strictly obey'd, the forfeiture must take place, without admitting the tenant in tail to supply the omission by ingrossing the irritant clauses in his title-deeds: nor would the strongest evidence given on his part of ig­norance or casual omission, relieve him from the forfeiture. But as the clause must be constructed to be only in terrorem, it would contra­dict the ultimate purpose of the legislature, to give it any effect, fur­ther than to oblige the tenant in tail to supply his omission; for we cannot suppose that the legislature intended to be more rigid in secu­ring entails, than entailers themselves commonly are. This sta­tutory irritancy, according to strict order, ought to come in afterward, in treating of equity with respect to statutes; but it appears in a bet­ter light by being joined with the irritancies above mentioned.

The irritancies hitherto mentioned relate to grants and single deeds. I proceed to an example of a conventional irritancy, viz. an irritancy ob non solutum canonem contained in a tack or feu-right. Such a clause expressed so as to make the right voidable only upon failure of pay­ment, is just and equal; because, by a declarator of irritancy, it se­cures to the superior or landlord payment of what is due him, and at the same time affords to the vassal or tenant an opportunity to purge the irritancy by payment. And even supposing the clause so expressed as to make failure of payment an ipso facto forfeiture, it will be held by a court of equity, that the means chosen reach inadvertently beyond the ultimate intention of the parties contracters; and a declarator of irritancy will still be necessary, in order to afford an opportunity of purging the irritancy.

[Page 154] A settlement being made upon a young woman, proviso, that she marry with consent of certain persons named, the consent to be decla­red in writing; a consent by parole was deemed sufficient *. For writing was required in the way of evidence only; and consequently it was not understood to be the will of the maker to exclude other evi­dence that might be equally sufficient; and far less to forfeit a person for the mere want of a form when the substance was preserved.

Conditional bonds and grants afford good examples of limiting means when they exceed just bounds. Conditional bonds and grants are of two kinds. One is where the condition is ultimate; as for example, a bond for money granted to a young woman upon condi­tion of her being married to a man named, or a bond for money to a young man upon condition of his entering into holy orders. The o­ther is where the condition is a means to a certain end; as for ex­ample, a bond for a sum of money to a young woman upon condi­tion of her marrying with consent of certain friends named, the in­tendment of which condition is to prevent an unsuitable match. Conditions of the first kind are taken strictly, and the sum is not due unless the condition be purified. This is requisite in common law; and not less so in equity, because justice requires that a man's will be made effectual. To judge aright of the other kind, we ought to lay the chief weight upon the ultimate purpose of the granter; which, in the case last mentioned, is to confine the young woman to a suit­able match. If she therefore marry suitably, or, suppose, above her rank, though without consulting the friends named, I pronounce that the bond ought to be effectual in equity, though not at common law. The reason that determines my opinion is given above, that weight ought to be laid upon the ultimate purpose, even in opposi­tion to the declared means; and that justice is fulfilled when the granter's ultimate purpose is made effectual. I am aware, that in Scotland we are taught a different doctrine. In bonds of the kind under consideration, a distinction is made between a suspensive con­dition, and one that is resolutive. If the bond to the young woman contain a resolutive condition only, viz. if she marry without consent she shall forfeit the bond, it is admitted, that the forfeiture will not take effect unless she marry unsuitably. But it is held by every one, that a suspensive condition, such as that above mentioned, must be performed in the precise terms of the clause; because, say they, the will of the granter must be the rule; and no court has power to vary a conditional grant, or to transform it into one that is pure and [Page 155] simple. This argument is conclusive where a condition is ultimate, whether suspensive or resolutive; but far otherwise where the condi­tion is a means to an end. It is true, that the will of the granter must be the rule: but it must be his ultimate will or intention, in opposi­tion to his will with respect to disproportioned means. Let us try the force of this reasoning, by bringing it down to common apprehension. Why is a resolutive condition disregarded, where the obligee marries suitably? For what other reason, but that this resolutive condition is considered as a means to an end, and that if the end be accomplish­ed the granter's purpose is fulfilled? Is not this reasoning applicable equally to the suspensive condition under consideration? No man of plain understanding, unacquainted with law, will discover any differ­ence. And accordingly, in the later practice of the English court of chancery, this difference seems to be disregarded. A portion of L. 8000 is given to a woman provided she marry with consent of A; and if she marry without his consent, she shall have but L. 100 year­ly. She was relieved though she married without consent; for the proviso is in terrorem only *.

One having three daughters, devises lands to his eldest, upon con­dition that within six months after his death she pay certain sums to her two sisters; and if she fail, he devises the land to his second daughter on the like condition. The court may enlarge the time for payment, though the premises are devised over. And in all cases where compensation can be made for the delay, the court may dis­pense with the time, though even in the case of a condition prece­dent . This practical rule is evidently derived from the reasoning above stated.

Take another example that comes under the same rule of equity. A claim is transacted, and a less sum accepted, upon condition that the same be paid at a day certain, otherwise the transaction to be void. It is the general opinion, that where the clause is resolutive, equity will relieve against it after the stipulated term is elapsed, pro­vided the transacted sum be paid before process be raised; but it is denied that this will hold where the clause is suspensive. In my ap­prehension, there is an equitable ground for relief in both equally. The form may be different, but the intention is the same in both, viz. to compel payment of the transacted sum; and therefore if pay­ment be offered at any time before a declarator of irritancy, with [Page 156] damages for the delay, the conditional irritancy has had the full effect that was ultimately intended. Equity therefore requires a de­clarator of irritancy, whether the clause be suspensive or resolutive; and the defendant ought to be admitted to purge the failure by offer­ing payment of the transacted sum. The case, I acknowledge, is different where the transacted sum is to be paid in parcels, and at different periods; as for example, where an annuity is transacted for a less yearly sum. A court of equity will scarce interpose in this case, but leave the irritancy to take place ipso facto, by the rules of common law; for if the irritant clause be not in this case permitted to operate ipso facto, it will be altogether ineffectual, and be no com­pulsion to make payment. If a declarator be necessary, the defend­ant must be admitted to purge before sentence; and if it be at all necessary, it must be renewed every term where there is a failure of payment. This would be unjust, because it reduces the creditor to the same difficulties of recovering his transacted sum that he had with respect to his original sum; which, in effect, is to forfeit the creditor for his moderation, instead of forfeiting the debtor for his ingratitude.

The examples above given coincide in the following point, That the acts of contravention are capable of being purged, so as to re­store matters to the same situation as if there had been no contraven­tion. But there are acts incapable of being purged, such as the cutting down trees by a tenant. Now, suppose a lease be granted with a clause of forfeiture in case of felling trees, will equity relieve against this forfeiture in any case? If the act of contravention was done knowingly, and consequently criminally, there can be no equi­ty in giving relief; but if it was done ignorantly and innocently, a court of equity ought to interpose against the forfeiture, upon ma­king up full damages to the landlord. Take the following instance. The plaintiff, tenant for life of a copy-hold estate, felled trees, which, at a court-baron, was found a waste, and consequently a forfeiture. The bill was to be relieved against the forfeiture, offering satisfaction if it appeared to be a waste. The court decreed an issue, to try whe­ther the primary intention in felling the trees was to do waste; de­claring, that in case of a wilful forfeiture it would not relieve *.

SECT. V. Where there is a failure in performance.

ART. I. Where the failure is total.

IN order to distinguish equity from common law upon this sub­ject, we must begin with examining what power a court of common law has to compel persons to fulfil their engagements. That this court has not power to decree specific performance, is an established maxim in England, founded upon the following reason. In every engagement there must be a term specified for performance: before that term there can be no demand for performance, nor any process brought upon that head; and after the term is past, per­formance at that precise term becomes imprestable. A court of com­mon law, confined to the words of a deed or covenant, hath not power to substitute equivalents; and therefore all that can be done by such a court, is to award damages against the party who fails to perform. Even a bond of borrowed money is not an exception; for after the term of payment, the sum is ordered to be paid by a court of common law, not as performance of the obligation, but as da­mage for not performance. This, it must be acknowledged, is a great defect; for the obvious intention of the parties in making a co­venant, is not to have damages, but performance. The defect ought to be supplied; and it is supplied by a court of equity upon a prin­ciple often mentioned, That where there is a right it ought to be made effectual. By every covenant that is not conditional, there is a right acquired to each party: a term specified for performance is a mean to ascertain performance, not a condition; and when that mean fails, it is the duty of a court of equity to supply another mean, that is to name another day.

To illustrate this doctrine, several cases shall be stated with respect to the performance of a covenant. In a minute of sale of land, a term is named for entering the purchaser into possession, and for pay­ment of the price. By some accident, the matter lies over till the term is past, without a demand on either side. At common law the minute of sale is rendered ineffectual; because possession cannot be delivered at the term covenanted, nor the price paid after that term is elapsed: neither can damage be awarded for non-performance, because neither party has been in mora. It belongs then to a [Page 158] court of equity to assign a new term for specific performance, which is fulfilling the purpose of the covenant, and making the rights arising therefrom effectual. At the same time, it ought not to be overlooked, that the naming a new term for performance must vary the articles of the original agreement. The price cannot bear interest from the term named in the minute, because the purchaser was not bound to pay the price until he should get possession: nor is the vender liable to account for the rents from that term, because he could not be bound to yield possession till the price was offered. These several prestations must take place from the new term named by the court of equity.

Supposing now a mora on one side. The purchaser, for example, demands performance of the minute of sale at the term stipulated; and years pass in discussing the vender's defences. These at last are repelled, and the purchaser insists for specific performance. What doth equity suggest in this case? for now, the term of performance being past, the original articles cannot be fulfilled. One thing is e­vident, that the purchaser must not suffer by the vender's failure: and therefore a court of equity, though it must name a new term for per­formance, may, however, if the purchaser insist upon it, appoint an account to be made upon the footing of the original articles. If the rent, for example, exceed the interest of the money, the balance may be justly claimed by the purchaser, because he would have had the benefit of that excess if the vender had performed as he ought to have done. But what if the interest of the price, as usual, exceed the neat rent? The vender will not be intitled to the difference; for the purchaser was not bound to pay the price till possession was offered him, and he could not be liable for interest before the prin­cipal sum was due. In a word, the purchaser has a claim for da­mage in the former case; because, where the rent exceeds the inter­est, he can qualify damage by the delay of performance. But in the latter case, where the interest exceeds the rent, the purchaser, in­stead of losing, gains by the delay, and upon that account has no damage to claim. This at first view may be thought to clash with the maxim Cujus commodum ejus debet esse incommodum: doth it not seem unjust, that the purchaser should have an option to claim the rents from the beginning, or only from the present time, as best suits his interest? It may seem so at first view, but there is no inju­stice in reality: the purchaser's option ariseth justly from the failure of his party; which shows that the foregoing maxim obtains between persons only who are upon an equal footing, not where [Page 159] the one is guilty of a fault respecting the other. I need scarce add, that the same option which is given to the purchaser where the vender is in mora, is given to the vender where the purchaser is in mora.

It frequently happens that specific performance becomes imprest­able; as where I sell the same horse successively to A and B. In this case the performance to A becomes imprestable after the horse is de­livered to B; and therefore, instead of decreeing specific perform­ance, the court of equity must be satisfied, like a court of common law, to decree damages, according to the maxim Quod loco facti im­praestabilis succedit damnum et interesse.

This suggests an enquiry, Whether in awarding damages there be any difference between a court of equity and a court of common law. The obligor being bound to perform what he undertakes, ought from the very nature of his obligation to make up the loss occasioned by his failure; and every failure accordingly will afford a good claim for damages at common law. Thus the purchaser of an estate from an heir-apparent, having, along with the disposition, received a procuratory to serve and infeft his author, employs his own doer to perform that work. By the doer's remissness, the heir-apparent dies without being infeft, which renders the disposition ineffectual to the purchaser. The doer is bound at common law to make up the pur­chaser's loss, though it be lucrum cessans only. In cases of that nature, if skill be professed, unskilfulness will afford no defence. ‘"Proculus ait, si medicus servum imperite secuerit, vel locato vel ex lege Aqui­la competere actionem *. Celsus etiam imperitiam culpae adnume­randam scripsit. Si quis vitulos pascendos vel sarciendum quid po­liendumve conduxit, culpam eum praestare debere; et quod impe­ritia peccavit culpam esse, quippe ut artifex conduxit ."’ Upon this principle the following case was determined. An advocate being indebted a considerable sum to his client, wrote and delivered him a bill of exchange for the sum. Being sued for payment, he objected that the bill was null, as containing a penalty. It is probable that the advocate was ignorant of this nullity when he drew the bill; but he undertook the trust of drawing it, and therefore was bound to make it effectual to his client .

When a prisoner for debt makes an escape, the creditor is hurt in his interest, but sustains no actual damage; for it is not certain that [Page 160] he would have recovered his money by detaining the debtor in pri­son; and it is possible he may yet recover it, notwithstanding the e­scape. But it is undoubtedly a hurt or prejudice to be deprived of his expectation to obtain payment by the imprisonment; and the common law gives reparation by making the negligent jailor liable for the debt, precisely as equity doth in similar cases. A messenger who neglects to put a caption in execution, affords another instance of the same kind. By his negligence he is said litem suam facere, and is subjected to the debt. The undertaking an office implies an agree­ment to fulfil the duty of the office in all its branches; and negligence accordingly is a breach of agreement, which must subject the officer to all the consequences, whether actual damage or any other preju­dice. It ought not to escape observation at the same time, that as neglect merely without intention of mischief is no ground for punish­ment, damages are the only means within the compass of law for compelling a man to be diligent in performing his duty.

Certain covenants unknown in the common law belong to equity. A bill of exchange was of that nature, till it was brought under the common law by act of parliament; and while it continued in its ori­ginal state, damages from failure of performance could not be claim­ed but in a court of equity. A policy of insurance is to this day un­known at common law; and consequently every wrong relative to it must be redressed in a court of equity.

And now as to the rules for estimating damage upon failure to perform a covenant. A failure to perform any duty, whether arising from a covenant or not, is a fault only, not a crime; and therefore, according to what is laid down above *, no consequential damage that is uncertain ought to be claimed. There is the greater reason for this moderation with respect to covenants, where the failure is frequently occasioned by a very slight fault, and sometimes by inabi­lity without any fault. This rule is adopted by the writers on the Roman law: ‘"Cum per venditorem steterit quo minus rem tradat, omnis utilitas emptoris in aestimationem venit: quae modo circa ipsam rem consistit. Neque enim, si potuit ex vino puta negotia­ri, et lucrum facere, id aestimandum est, non magis quam si triti­cum emerit, et ob eam rem quod non sit traditum, familia ejus fame laboraverit: nam pretium tritici, non servorum fame necato­rum, consequitur ."’ ‘"Venditori si emptor in pretio solvendo mo­ram fecerit, usuras duntaxat praestabit, non omne omnino quod [Page 161] venditor, mora non facta, consequi potuit; veluti si negotiator fuit, et pretio soluto, ex mercibus plus quam ex usuris quaerere po­tuit *."’

In comparing the rule laid down in this case for estimating damage, with that mentioned above concerning a jailor and a messenger, there is an appearance as if uncertain damage, rejected in the former, were admitted in the latter; and this may be thought an inconsistency in the rule here laid down for estimating damage. But this difficulty will be removed by a single observation, That uncertain damage is not admitted in either case. The risk a creditor runs upon escape of his prisoner is extremely certain, however uncertain the consequences may be. It is this risk only that is estimated; and it is estimated in the most accurate manner, by relieving the creditor from it, and laying it upon the jailor or messenger.

Upon the whole, with respect to damages from breach of cove­nants, it appears that there is no defect in common law to make the interposition of equity necessary. And this observation, it is presu­med, will hold also with respect to deeds.

ART. II. Where the failure is partial only, not total.

MANY obligations are of such a nature as to admit no medium be­tween complete performance and total failure. As to other obliga­tions, there may be a partial performance, and consequently a failure that is but partial. A bargain and sale of a horse, for a price certain, furnisheth an example of each kind. The vender's performance is indivisible: if he deliver not the horse, his failure is total. The obli­gation upon the purchaser to pay the price, admits a performance by parts: if he have paid any part of the price, his performance is par­tial, and his failure partial.

Many obligations ad facta praestanda admit a medium between com­plete performance and total failure. A waggoner who engages to carry goods from London to Edinburgh, and stops short at Newcastle, has performed his bargain in part, and consequently has failed but in part. The like, where a ship freighted for a voyage is forced by stress of weather to land her cargo before arriving at the destined port.

In cases of this kind the question is, What shall be the legal effect of a partial failure? With respect to common law the answer is easy: taking the bargain strictly, I am not bound to pay the price or wa­ges till my party have performed his part of the bargain, that is, the [Page 162] whole of what he became bound to perform. But in order to answer the question with respect to equity, a culpable failure must be distin­guished from a failure occasioned by accident or misfortune. In the former case a court of equity will give no relief; it being a general rule, That no claim is sustained in equity where the claim is occasion­ed by the fault of the claimant himself. But in the latter case, a claim will be sustained for a part of the price or wages, in proportion to the performance, upon the principle Nemo debet locupletari aliena jac­tura. Thus, if a man undertake to build me a house for a certain price, according to a plan concerted, and die before the house be ful­ly completed, his representatives will in equity be intitled to a part of the price, in proportion to the quantity of work done; for in pro­portion to that quantity I am locupletior aliena jactura. Thus, in the case above mentioned, if the waggoner die at Newcastle, or be pre­vented by other accident from completing his journey, he or his exe­cutors will have a claim against his employer pro rata itineris. And upon the same principle the freight is due pro rata itineris; which was found in the case Lutwidge contra Gray *.

A process was lately brought before the court of session upon the following fact. Mariners were hired at Glasgow to perform a tra­ding voyage to Newfoundland, from thence to Lisbon, and from Lis­bon to Clyde; a certain sum per month for wages, to be paid when the voyage should be completed. The Glasgow cargo was safely landed in Newfoundland; and a cargo of fish, received there, was delivered at Lisbon. In the homeward passage, the ship, with the Lisbon cargo, was taken by a French privateer; and the mariners, when they obtained their liberty, demanded their wages pro rata iti­neris. This cause was compromised; but from what is said, mari­ners stand evidently upon the same footing with a waggoner, or an owner of a freighted ship. And accordingly, it is a common say­ing, That the freight is the mother of the seamens wages; meaning, that if the former be due, the latter must also be due.

SECT. VI. Indirect means used to evade performance.

AMong persons who are sway'd by interest more than by con­science, the employing indirect means to evade the effect of their engagements, is far from being rare. Such conduct, as being incon­sistent with that candor and bona fides which is requisite in contracting, and in performing contracts, is morally wrong; and a court of equi­ty will be watchful to disappoint every attempt of that nature. Thus, if a man, subjected to a thirlage of all the oats growing on his farm that he shall have occasion to grind, sell his own product of oats, and buy meal for the use of his family, with no other view but to disap­point the thirlage, this is a wrong contra bonam fidem contractus, which will subject him to the multure that would have been due for grind­ing the oats of his own farm. The following case is an example of the same kind. A gentleman being abroad, and having no prospect of children, two of his nearest relations agreed privately, that if the estate should be disponed to either, the other was to have a certain share. The gentleman, ignorant of this agreement, settled his estate upon one of them, reserving a power to alter. The disponee sent his son privately to Denmark, where the gentleman resided: upon which the former deed was recalled, and a new settlement made upon the son. In a process after the gentleman's death for performance of the agree­ment, the defence was, That the agreement did not take place, as the disposition was not in favour of the defendant, but of his son. The court found, That the defendant had acted fraudulently, in obtaining an alteration of the settlement in order to evade performance of the agreement; and that no man in conscience can take benefit by his own fraud. For which reason he was decreed to fulfil the engage­ment as if the alteration had not been made *.

Upon the same foundation rests the following rule, That a court of equity will not sustain any objection which is calculated by the ob­jector to evade an obligation he is under to the person against whom the objection is made. This rule will be explained by the following examples. In a ranking, a creditor claimed preference upon the debt­or's escheat, because it had fallen by a denunciation upon his horn­ing. Answered, That there was no escheat, the debtor being relax­ed; [Page 164] and that though the relaxation was informal, yet the credi­tor had consented to it. The court would not permit the creditor to evade the effect of his consent, by insisting upon the informality of the relaxation; and for that reason found him excluded personali ob­jectione from objecting to the relaxation *. In a competition between two annualrenters, the first of whom was bound to the second as cau­tioner; the first claiming preference, it was objected by the other, that it was unjust in the cautioner to use his preferable infeft­ment for excluding a creditor whose debt he was bound to pay. The court refused to sustain this personal objection; leaving the second annualrenter to insist personally against the first as cautioner . This was acting as a court of common law, not as a court of equity: for it was undoubtedly a moral wrong in the first annualrenter to lay hold of any means to evade or even to delay performance of his cautionary obligement; and the court ought to have repressed this moral wrong, by sustaining the personal objection against him. A cautioner for a curator being sued for a sum levied by the curator, curatorio nomine, objected, That the curator had no right by reason of a prior act of cu­ratory standing unreduced. It being against conscience for a man thus to evade performance of his own engagement, the cautioner was repelled personali objectione from pleading the defence . A verbal pro­mise to dispone land is not made effectual in equity; because a court of equity cannot overturn common law, which gives a power of re­pentance unless writ be interposed. But a purchaser insisting for per­formance of a disposition of land granted to him, and the disponer defending himself upon a nullity in the disposition; the court found, That the defendant was barred personali objectione from objecting the nullity, because he had verbally agreed to ratify the disposition .

The first thing considered in a process is the pursuer's title; and where the title is insufficient, it is the province of the judge to refuse process, even though no objection be made by the defendant. Hence it follows, that the defendant cannot be barred personali objectione from objecting to the pursuer's title. Thus, against a poinding of the ground, which cannot proceed but upon an infeftment, it being ob­jected, That the pursuer was not infeft; it was answered, That the defendant, who is the superior, is bound by the feudal contract to infeft the pursuer, and had been charged to that effect; and that he [Page 165] could not move an objection which arose from his own fault. The court judged, That it is pars judicis to refuse to sustain action without a good title; and therefore that no personal objection against the de­fendant can supply the want of a title *.

SECT. VII. Repentance in what contracts permitted, and to whom.

HAve we in Scotland any action similar to what in the Roman law is termed Condictio causa data causa non secuta? Voet, upon the title Condictio causa data, &c. says, That the condictio ex paenitentia is not admitted in modern practice, because every paction is now obli­gatory. It may indeed appear singular, that there should be a cove­nant of such a nature, as to afford to the one party an exception founded on paenitentia merely, or change of mind, and not to the o­ther. I incline however to be of opinion, that this privilege hath an equitable foundation with respect to every covenant that is solely or chiefly beneficial to one of the contractors, and of little or no consequence to the other. For example, I promise a man a sum of money to manumit his slave. This man is not interested to demand performance of the promise, because he gains no more by the money than he loses by the manumission. Therefore, from the nature of the thing, the privilege of repentance ought to be indulged me. The common law however in this case affords me no relief, be­cause it knows no distinction of parties: but it is the province of a court of equity to afford relief where the common law is deficient.

With respect to covenants in which both parties are interested, but the one much, the other little, it appears to me, that the party chief­ly interested may be relieved in equity, if he can show that perform­ance will be prejudicial to him. For example, I bargain with an un­dertaker to build me a dwelling-house for a certain sum, according to a plan concerted. Before the work is begun, the plan is discover­ed to be faulty in many capital articles, and upon the whole to be ill contrived. Am I bound notwithstanding to fulfil my covenant with the undertaker? This would be hard, and scarce agreeable to the be­nevolence of justice. Suppose again, that, upon a more narrow in­spection [Page 166] spection into my affairs, the sum agreed on for building is found to be more than I can afford. Or what if, in the interim, I succeed to an estate, with a good house upon it; or am invited by an employ­ment to settle elsewhere? If I am relieved, the undertaker loses little, being at liberty to accept of employment from others: but if I be ri­gidly tied by my engagement, a great interest on my side is sacrificed to a small interest on his. Covenants, intended for the support of so­ciety, and to connect individuals by mutual good offices, ought not to be stretched to their ruin. The sole difficulty is, to determine in what cases a court of equity should interpose. This is a delicate point; for it will not be thought that it ought to interpose in every covenant that is not strictly equal. It is undoubtedly the safest course to refuse the aid of the court, unless where the circumstances are so strong as to afford a clear conviction of the hardship of per­formance.

Some covenants are of such a nature, and have such important consequences, that to each party there is locus poenitentiae before per­formance. A contract of marriage is one of these; and for that reason, a bond granted by a woman to marry the obligee under the penalty of a certain sum, will not be effectual in equity *. Upon the same principle there is locus poenitentiae to get free from a verbal bargain about land.

SECT. VIII. How far a deed or covenant void at common law can be supported in equity.

A Principle in logics, That will without power cannot operate any effect, is applicable to law-matters; and is expressed as fol­lows, That a deed ultra vires is null and void. The common law adheres rigidly to this principle, without distinguishing whether the deed be totally beyond the power of the maker, or in part only: it is considered as one deed, which must be entirely effectual or en­tirely void. The distinction is reserved to a court of equity, which gives force to every rational deed as far as the maker's power ex­tends.

This doctrine shall be illustrated by proper examples. If one having power to grant a lease for ten years grants it for twenty, the lease is [Page 167] in equity good for ten years *. For here there can be no doubt about will; and justice requires, that the lease stand good as long as will is supported by power. A tack set by a parson for more than three years without consent of the patron, is at common law void totally, but in equity is sustained for the three years . But a college having set a perpetual lease of their teinds for 50 merks yearly, which teinds were yearly worth 200 merks, and the lease being challenged for want of power in the makers, who could not give such a lease without an ade­quate consideration, it was found totally null, and not sustained for any limited time or higher duty . For a court of equity, as well as a court of common law, must act by general rules; and here there was no rule for ascertaining either the endurance of the lease or the extent of the duty. Further, a court of equity may separate a deed into its constituent parts, and support the maker's will as far as he had power: but here the limiting the endurance and augmenting the duty so as to correspond to the power of the makers, would be to frame a new lease, varying in every article from the will of the makers of the lease challenged.

The settlement of an estate by marriage-articles upon the heir of the marriage, is not intended to bar the husband from a second mar­riage; nor consequently to bar him from making rational provisions to the issue of that marriage. Let us suppose that a man thus bound to the heir of his first marriage, makes exorbitant provisions to his chil­dren of the second marriage, such as his whole estate, or the greater part. This settlement is voidable at common law, as a breach of engagement; and it is a matter of delicacy for a court of equity to interpose where they have no general rule for direction. Justice however demands an interposition, that children, to whom the father certainly intended to give all in his power, may not be left entirely destitute: nor would it be consistent with common sense, that chil­dren should suffer as much by excess of affection in their father as by his utter neglect. In this case, therefore, the court of session in­terposes, by restricting the provisions within rational bounds, such as are consistent with the engagement the father came under in his first contract of marriage. The court however never interposes without necessity; and therefore if the common law afford any means for providing the children, these means are preferred. This [Page 168] observation will be put in a clear light by the following case. Colo­nel Campbell, by marriage-articles, being bound to provide to the issue thereof the sum of 40,000 merks, with the conquest, did, by a deathbed-settlement, appoint his eldest son to be heir and executor; and left it upon the Duke of Argyle and Earl of Ilay to name ra­tional provisions to his younger children. The referees having de­clined the trust reposed in them, the younger children insisted to have the settlement voided, as contradictory to the marriage-articles. It was pleaded for the heir, That the Colonel had a power to divide the special sum and conquest, by giving more to one child and less to another; and though the whole happens to be settled on the eldest son by accident, not by intention, yet that this inequality, supposing it to have been intended, is no foundation for voiding the settlement totally, but only to bring in the younger children for a moderate share. The court voided the settlement totally; which intitled the children each of them to an equal share of the subjects provided to them in the marriage-contract *. The court must inter­pose where the rigor of the common law deprives the younger chil­dren of all: but in the present case the settlement was void at com­mon law; and the younger children being sufficiently provided by the contract of marriage, there was no necessity for an equitable interpo­sition.

It being the professed intention of parties entering into a submis­sion, to put an end to all the differences that are submitted, arbiters are chosen to fulfil that intention, who are bound by acceptance to execute the commission given them. Hence an award or decreet-ar­bitral is void at common law, if any article submitted be left unde­cided, because in that case the commission is not executed. This is equitable as well as legal where the submission contains mutual claims, it being grossly partial to ascertain the claims of one of the parties, while the other is left to an action. But where the claims are all on one side, and some of them only determined, equity will support the award, which, as far as it goes, is beneficial to the par­ties; for it is always better to have some of their disputes determined than none of them. This however goes upon the supposition, that no objection in equity lies against the award: for if a deed be null at common law, a court of equity will never support it, except as far as it is just.

When arbiters take upon them to determine articles that are not submitted, the award or decreet-arbitral is at common law void, [Page 169] even with respect to the articles submitted; because it is consider­ed as one entire act, which must be wholly effectual or wholly void. Equity goes more accurately to work: it separates the articles submitted from those not submitted, and sustains the award as far as the arbiters were vested with proper powers. Thus, if two sub­mit all actions subsisting at the date of the submission, and the arbitrators award a release of all actions to the time of the award, the award shall be good for what is in the submission, and void for the residue only *. A decreet-arbitral being challenged, as ultra vires compromissi, with respect to mutual general discharges, which were ordered to be granted, though some particular claims only were submitted; the decreet-arbitral was sustained as far as it rela­ted to the articles submitted, and voided only as to the general dis­charges .

By the act 80. parl. 1579, ‘"all deeds of great importance must be subscribed and sealed by the parties, if they can write; otherwise by two notaries before four witnesses, present at the time, and de­signed by their dwelling-places; and the deeds wanting these for­malities shall make no faith."’ With respect to this statute, it is fixed by the court of session, that a deed is of great importance when what is claimed upon it exceeds in value L. 100. And upon the statute thus constructed, it has often been disputed in the court of session, Whether a bond for a greater sum than L. 100 subscri­bed by one notary only and four witnesses, or two notaries and three witnesses, be void; or whether it ought to be sustained to the extent of L. 100. A court of common law, adhering to the words of the statute, will refuse action upon it. And such was the practice originally of the court of session . But a court of equity, regard­ing the purpose of the legislature, which is to make additional checks against falsehood in matters of importance, will support such deeds to the extent of L. 100: for a deed becomes of small importance when reduced to that sum, and ought to be supported upon the or­dinary checks. And accordingly the court of session, acting in la­ter times as a court of equity, supports such bonds to the extent of L. 100 . But in applying the rules of equity to this case, the bond ought to be for a valuable consideration, or at least be a ratio­nal [Page 170] act. For if irrational, it is not intitled to any support from e­quity.

Oral evidence is not sustained in Scotland to prove a verbal legacy exceeding L. 100; but if it be restricted to that sum, witnesses are ad­mitted *.

In the cases mentioned, there are none who have occasion for the equitable relief but those only who are parties to the transaction. But in many cases third parties happen to be affected, of which take the following example. A younger brother serves heir to his father, and is infeft, the eldest having been so long abroad as to be reputed dead. He comes home, and claims the succession; which ipso facto voids the service and infeftment of his brother; because a service can have no legal effect without a right to be served. In the interim the younger brother has acted bona fide as proprietor: and many have been his transactions with third parties, who were also in bona fide; which transactions, being founded upon his title of property, are null and void, as flowing a non habente potestatem. Is there no relief in equity in a case of this nature, where the hardship on third par­ties is intolerable? One thing is clear, that the bona fides of the young­er brother will secure him against a claim for the rents consumed. On the other hand, it is equally clear, that no sale made by him can be effectual, unless as far as necessary for payment of the family-debts; to which extent a sale may be supported in equity. The only general rule is, That equity will support every act of ordinary ad­ministration; but that acts of extraordinary administration will not be effectual, except such as being prudent and rational are beneficial to the righteous heir. Upon that rule the court proceeded in the fa­mous case of Missinish, who being the only heir in being at the time, was admitted to serve, though there was a nearer heir in possibility, who afterward existed. Missinish, by his service and infeftment, was only a conditional proprietor, his right depending on the exist­ence or non-existence of a nearer heir; and as a nearer heir came in­to existence, Missinish's right was null a principio. But he having sold land for payment of the family-debts while there was yet no prospect of a nearer heir, the sale was supported by the court of ses­sion, upon evidence brought that it was in rem versum of the true heir.

Similar is the case of Count Antonius Leslie, an alien, who was [Page 171] served and infeft in the estate of Balquhain, as next heir of entail; for an alien at that time was thought capable to inherit land in Scot­land. But his title being afterward challenged upon that ground by Peter Leslie-Grant, the next substitute, the reason of reduction was sustained in the court of session, and in the house of Lords. During his possession he had sold many trees come to maturity, the price of which he had received. And he was protected from accounting for articles of this sort that happened while he was in bona fide.

The famous case of Barbarius Philippus* is an instance of the same kind. Being elected a Roman Praetor, he determined many causes, and transacted every sort of business that belonged to the of­fice. At the long run he was discovered to be a slave, which ren­dered all his acts and deeds void at common law; because none but a freeman was capable to be elected a Roman Praetor. With respect to third parties, however, his acts and deeds were held to be good, as if he really had been a Praetor.

SECT. IX. Whether any supervening accident can in equity void or render ineffectual a contract originally unexceptionable.

IN January 1755, Foster and Duncan set to Adamson and William­son a salmon-fishing in the river Tay opposite to Errol, on the north side of a shallow named the Guinea-bank, to endure for five years. The river there is broad; but the current, being narrow, passed at that time along the north side of the said bank, the rest of the river being dead water. As one cannot fish with profit but in the current, the tacksmen made large profits the first two years, and were not lo­sers the third; but the fourth year the current changed, which fre­quently happens in that river, and instead of passing as formerly a­long the north side of the bank, passed along the south side, which was a part of the river set to other tacksmen; by which means the fishing set to Adamson and Williamson became entirely unprofitable the remainder of their lease.

The granters of the tack having brought a process against the tacks­men for L. 36 Sterling, being the tack-duty for the two last years, the defence was a total sterility by the change of the current as aforesaid; [Page 172] and a proof being taken, the facts appeared to be what are above mentioned.

It was admitted for the pursuers, that the extinction of the subject must have the effect even at common law to put an end to the lease; because the lease having a special relation to a subject which is to be possessed for rent, it cannot subsist when there remains no subject that can be possessed; as for example, when land is swallowed up by the sea, or when a river totally changes its course, and never returns to its former channel. The case is different in sterility, whether of land or of fishing; for there the subject remaining in existence, is still ca­pable to be possessed by the lessee; and consequently the lease subsists, and the rent is due, however unprofitable the possession may be. If therefore there be any relief in the case of sterility, it must be upon equitable considerations; and whatever may be thought with respect to a total sterility during the whole years of the lease, or during the remaining years after the lease is offered to be given up, the sterility here was temporary only: for as the stream of the river Tay is ex­tremely changeable, it might have returned to its former place in a month or in a week; and as the tacksmen adhered to the tack, and did not offer to surrender the possession, they certainly were in daily expectation that the current would take its former course. That such a temporary sterility cannot afford a defence in equity against payment of the rent, will appear from the following considerations. Primo, A lease puts the lessee in place of the landlord as to profit and loss; the profit is his without limitation, and so ought the loss: Cujus commodum ejus debet esse incommodum is a rule in equity that holds with the greatest force in a lease where the lessee draws all the profit, if it should be ten times his rent, and on the other hand can never lose more than his rent. Secundo, There can be no equity in the defence after the lease is at an end. For at that rate the tenant has a fine game to play: if the sterility continue to the end of the lease, the tenant takes advantage of the equitable defence to get free of the rent; but if fruit­fulness be restored, he takes advantage of the lease, and makes all the profit he can. The landlord by this means continues bound while the tenant is free, which is repugnant to all the rules of equity as well as of common law. Tertio, At any rate the tenant cannot pick out one or other sterile year to get free of that year's rent: if equity afford him any deduction, it must be upon a calculation of the whole years of the lease; for if he be a gainer upon the whole, which is the present case, he has no claim in equity for any deduction. It was carried, however, by a plurality to sustain the defence of sterility, [Page 173] and to assoilzie the defenders from the rent due for the last two years of the tack.

This judgement seems not better founded in equity than at common law; and it is easy to discover what moved the plurality. In a que­stion between a rich landlord and a poor tenant, the natural bias is in favour of the latter: the subject in controversy may be a trifle to the landlord, and yet be the tenant's all, A case may be put opposite to that under consideration. A widow woman with a numerous fa­mily of children has nothing to subsist on but her liferent of a dwel­ling-house, and of an extensive orchard. These she leases to a man in opulent circumstances, for a rent of L. 15 for the house, and L. 25 for the orchard. He possesses for several years with reasonable profit. The orchard happens to be barren the two last years of the lease, and he claims a deduction upon that account. No man would give this case against the widow. So much do extraneous circum­stances influence the determinations of a court, even where the judges are not sensible of them.

I am not certain but that some of the judges considered this as a rei interitus to afford a defence at common law; a very great mistake, as a thing cannot be understood to be totally destroy'd while we have daily expectation of its being restored to its former condition *.

SECT. X. Where a deed or covenant is occasioned by error.

ERror may be distinguished into two kinds. One prevents consent altogether; as for example, where the purchaser has one sub­ject in view and the vender another. In this case there is no bar­gain; for the parties agree not in the same thing. This can only happen in covenants; and as no obligation can arise where there is no agreement, such a covenant, if it can be called so, is void by the common law; and there is no occasion for the interposition of equi­ty. The other kind is where the error is not such as to prevent con­sent, but is a motive only for entering into an engagement. An er­ror of this kind may happen in single deeds as well as in covenants; and as here will or consent is really interposed, the deed must be ef­fectual at common law; and the question is, Whether, or how far, there ought to be a relief in equity on account of the error?

[Page 174] A maxim above laid down* will pave the way to the solution of this question, viz. That one certans de damno evitando may lawfully take advantage of an error committed by another; but that justice forbids such advantage to be taken in order to make positive gain by it. From the investigation of this maxim in the place cited, it will appear that justice makes no distinction between an error in fact and an error in law. One difference indeed there is, which belongs not to the present head, that an error in law is not so readily presumed as an error in fact.

I shall begin with showing what influence an error has with rela­tion to grants and other single deeds. Some are purely gratuitous, some are founded on an antecedent rational cause. Such cause must in all events support the deed, because justice will not permit the ma­ker to seek restitution against a deed which it was rational to grant. And supposing him to be bound in conscience only, a court of equity will not void an honest deed, though occasioned by an erroneous mo­tive. A rich man, for example, executes a bond in favour of an in­digent relation, moved by an erroneous belief that this relation had behaved gallantly in a battle where he was not even present. Equity will not relieve the granter against this deed, being in itself rational, and which at any rate is a matter of charity. The creditor, it is true, gains by the error: but then it cannot be said that he lays hold of this error to hurt the granter of the bond, because a man cannot be said to be hurt by doing an act of generosity or charity.

Equity therefore relieves not from error, except with relation to deeds purely gratuitous, such as donations, legacies, &c.; nor with relation to these, unless where the sole motive of granting is erroneous. An error the discovery of which would not have totally prevented the deed, cannot at all be regarded; for a gratuitous deed must be sus­tained in whole or voided in whole, there not being here as in cove­nants any measure of equality or inequality. With respect then to a gratuitous deed where the sole motive of granting is erroneous, ju­stice requires that the granter be relieved from performance. He feels himself not bound in conscience; and the grantee's conscience dictates to him, that he ought not to make profit by such error. To this purpose Papinian. ‘"Falsam causam legato non obesse, verius est: quia ratio legandi legato non cohaeret. Sed plerumque doli exceptio locum habebit, si probetur alias legaturus non fuisse ."’

The following texts of the Corpus Juris are proper examples of this rule: ‘"Longe magis legato falsa causa adjecta non nocet: veluti [Page 175] cum quis ita dixerit, Titio, quia me absente negotia mea curavit, Stichum do, lego. Vel ita, Titio, quia patrocinio ejus capitali crimine liberatus sum, Stichum do, lego. Licet enim neque negotia testatoris unquam gesserit Titius, neque patrocinio ejus liberatus sit, legatum tamen valet. Sed si conditionaliter enunciata fuerit causa, aliud juris est: veluti hoc modo, Titio, si negotia mea curaverit, fundum me­um do, lego *."’ Again, ‘"Quod autem juris est in falsa de­monstratione, hoc vel magis est in falsa causa. Veluti ita, Titio fundum do, quia negotia mea curavit. Item, Fundum Titius filius meus praecipito, quia frater ejus ex arca tot aureos sumpsit: licet enim frater hujus pecuniam ex arca non sumpsit, utile legatum est ."’ Here it is far from being clear that the error was the sole impulsive cause of the legacy. But the circumstances of the following case make it evi­dent that the error was the sole impulsive cause, so as to bring it un­der the said exception mentioned by Papinian. ‘"Pactumeius An­drosthenes Pactumeiam Magnam filiam Pactumeii Magni ex asse heredem instituerat: eique patrem ejus substituerat. Pactumeio Magno occiso, et rumore perlato, quasi filia quoque ejus mortua, mutavit testamentum, Noviumque Rufum heredem instituit, hac praefatione: Quia heredes quos volui habere mihi, continere non potui, Novius Rufus heres esto. Pactumeia Magna supplicavit Imperatores nostros; et cognitione suscepta, licet modus institutione continere­tur, quia falsus non solet obesse, tamen ex voluntate testantis puta­vit Imperator ei subveniendum. Igitur pronunciavit, Hereditatem ad Magnam pertinere, sed legata ex posteriore testamento eam praestare de­bere, proinde atque si in posterioribus tabulis ipsa fuisset heres scripta ."’ In this case two separate foundations of an equitable relief appear in a clear light: First, A settlement caused by error; Secondly, A provi­sion made by a settlement for a figured event, not for that which real­ly existed . Justice therefore interposes against such a settlement; because to sustain it would be the same as disinheriting the favourite heir, contrary to the intention of the maker.

With respect to the legacies contained in the latter testament, against which no relief was granted, the opinion delivered appears well founded. For though the testator was determined by an erroneous motive to make the testament as far as concerned Rufus the heir, there was no evidence nor presumption that he was determined by the same error to make the legacies.

[Page 176] With respect to contracts where means are erroneously chosen that answer not the intention of the contractors, an error of this magni­tude will void the contract: as to which, see sect. 4. art. 1. But a­ny error of less importance will not be regarded. I purchase, for ex­ample, a telescope, judging it to be mounted with silver; equity will not relieve me from the bargain though the mounting proves to be of a baser metal. The same of a watch, the case of which I take to be gold, though it be only silver gilt. The ornaments of an instrument or machine have no relation to use; and if the subject purchased an­swer its end, the chief view of the purchaser is obtained. The most that can be made of an error in such a case, is to found a claim in e­quity for abating the price in order to make the bargain strictly e­qual; and this was done by the Roman law, which annulls every sale where the lesion or prejudice is ultra duplum *. But a claim of this nature, as prejudicial to commerce, is opposed by the principle of utility, and for that reason is rejected in most commercial countries.

This affords a good opportunity to illustrate the legal effects of a transaction. A transaction putting an end to any matter in contro­versy or dispute, must be effectual; for a deed will never be presumed to proceed from error, where there is a just or rational motive for making it. On the other hand, if a man be moved to make a trans­action upon supposition of a claim which has no foundation, an er­ror of this kind will undoubtedly entitle him to be relieved in equity. ‘"Si ex falsis instrumentis transactiones vel pactiones initae fuerint, quamvis jusjurandum de his interpositum sit, etiam civiliter falso revelato, eas retractari praecipimus; ita demum, ut si de pluribus causis vel capitulis eaedem pactiones seu transactiones initae fuerint, illa tantummodo causa vel pars retractetur, quae ex falso instrumen­to composito convicta fuerit, aliis capitulis firmis manentibus ."’ For here the motive for making the transaction was erroneous.

One indeed may be moved by error to make an unequal transac­tion, which would be corrected by equity did not utility stand in the way; for to extinguish law-suits and controversies, the great source of idleness and discord, is not advantageous to those only who deal in commerce, but to all. Upon this account no inequality, however great, ought to be regarded in a transaction where there is no other cause for giving relief. An interposition, even in the strongest case, must give encouragement to law-suits; for if one obtain redress, o­thers will hope for it who have not so good a claim. It will have still a worse effect, by making judges arbitrary, who in such a case can have no general rule to direct their decrees.

CHAP. V. Powers of a court of equity to remedy what is imperfect in common law with respect to statutes.

COnsidering the limited nature of a court of common law, there is no reason that it should have more power over statutes than over private deeds. With respect to both it is confined to the words, and must not pretend to pronounce any judgement upon the spirit and meaning in opposition to the words. And yet the words of a statute correspond not always to the will of the legislature; nor are the things enacted proper means always to answer the end in view; fall­ing sometimes short of the end, and sometimes going beyond it. Hence in making statutes effectual, there is the same necessity for the interposition of a court of equity to supply defects and correct excesses, that there is in making deeds and covenants effectual. But in order to form a just notion of the powers of a court of equity with respect to statutes, it is necessary, as a preliminary point, to ascertain how far they come under the powers of a court of common law; and with that point I shall commence the inquiry.

Submission to a regular government is universally acknowledged to be a duty: but the true foundation of this duty seems to lie in obscu­rity, though scarce any other topic has filled more volumes. Many writers derive this duty from an original compact between the sove­reign and his people. Be it so. But then, what binds those who follow in succession? for a compact binds those only who are parties to it; not to mention that governments were established long before contracts were of any considerable authority *. Others, dissatisfied with this narrow foundation, endeavour to assign one more extensive, deriving the foregoing duty from what is termed in the Roman law a quasi-contract. ‘"It is a rule," they say, "in law, and in common sense, That a man who lays hold of a benefit, must take it with its conditions, and submit to its necessary consequences. Thus one who accepts a succession, must pay the ancestor's debts: he is pre­sumed to agree to this condition, and is not less firmly bound than by an explicit engagement. In point of government, protection and submission are reciprocal; and the taking protection from a law­ful [Page 178] government, infers a consent to submit to its laws."’ This ground of submission is not much more extensive than the former; for both proceed upon the supposition, that without consent express'd or imply'd no person owes obedience to government. At this rate, the greater part of those who live under government are left in a state of independency; for seldom is there occasion to afford such peculiar protection to private persons, as necessarily to infer their consent. In fact, the far greater part of those who live in society, are not capable to understand the foregoing reasoning: many of them have not even the slightest notion of what is meant by the terms protection and sub­mission. I am inclined therefore to think, that this important duty has a more solid foundation; and, comparing it with other moral du­ties, I find no reason to doubt, that, like them, it is deeply rooted in human nature *. If a man be a social being, and government essen­tial to society, it is not conformable to the analogy of nature, that we should be left to an argument for investigating the duty we owe our rulers. If justice, veracity, gratitude, and other private duties, be supported and inforc'd by the moral sense, it would be strange that nature should be deficient with respect to the public duty only. But nature is not deficient in any branch of the human constitution: go­vernment is not less necessary to society, than society to man; and by the very frame of our nature we are fitted for government as well as for society. To form originally a state or society under government, there can be no means, it is true, other than compact; but this foun­dation is far from being sufficient to support a state after it is formed, and to preserve it for any course of time. The continuance of a state, and of government over multitudes who never have occasion to pro­mise submission, must depend on a different principle. The moral sense, which binds individuals to be just to each other, binds them equally to submit to the laws of their society; and we have a clear conviction that this is our duty. The strength of this conviction is no where more visible than in a disciplined army. There the duty of submission is exerted every moment at the hazard of life; and fre­quently where the hazard is imminent, and death almost certain. In a word, what reason shows to be necessary in society, is, by the moral sense, made an indispensable duty. We have a sense of fitness and rectitude in submitting to the laws of our society; and we have a sense [Page 179] of wrong, of guilt, and of meriting punishment, when we transgress them a.

Hence it clearly follows, that every voluntary transgression of what is by statute ordered to be done or prohibited, is a moral wrong, and a transgression of the law of nature. This doctrine will be found of great importance in the present inquiry.

Many differences among statutes must be kept in view, in order to ascertain the powers of a court of common law concerning them. Some statutes are compulsory, others prohibitory; some respect indi­viduals, others the public only; of some the transgression occasions damage, of others not; to some a penalty is annexed, others rest up­on authority merely.

I begin with those which rest upon authority merely, without an­nexing any penalty to the transgression. The neglect of a compulso­ry statute of this kind will found an action at common law to those who have interest, ordaining the defendant either to do what the sta­tute requires, or to pay damages. If, again, the transgression of a prohibitory statute of the same kind harm any person, the duty of the court is obvious: The harm must be repaired, by voiding the act where it can be voided, such as an alienation after inhibition; and where the harm is incapable of this remedy, damages must be award­ed. This is fulfilling the will of the legislature, being all that is in­tended by such statutes.

But from disobeying a statute prejudice often ensues, which, not being pecuniary, cannot be repaired by awarding a sum in name of [Page 180] damages. Statutes relating to the public are generally of this nature; and many also in which individuals are immediately concerned a. To clear this point we must distinguish as formerly between compul­sory and prohibitory statutes. The transgression of a prohibitory sta­tute is a direct contempt of legal authority, and consequently a mo­ral wrong, which ought to be redressed; and it must necessarily be the purpose of the legislature to leave the remedy to a court of law, where the prohibition is not enforced by a particular sanction. This is a clear inference, unless we suppose the legislature guilty of an ab­surdity, viz. prohibiting a thing to be done, and yet leaving indivi­duals at liberty to disobey with impunity. To make the will of the legislature effectual in this case, different means must be employ'd ac­cording to the nature of the subject. If an act done prohibente lege can be undone, the most effectual method of redressing the wrong is to void the act. If the act cannot be undone, the only means left is punishment. And accordingly it is a rule in the law of England *, that an offender for contempt of the law, may be fined and impri­soned at the King's suit b.

On the other hand, the transgression of a compulsory statute order­ing a thing to be done, infers not necessarily a contempt of legal au­thority. It may be an act of omission only, which is not criminal; and it will always be constructed to be such, unless, from collateral circumstances, it be made evident that there was a positive intention to contemn the law. Supposing then the transgression to be an act of omission only, and consequently no place for punishment, the question is, What can be done, in order to fulfil the will of the legis­lature? The court has two methods: one is, to order the statute to be fulfilled; and if this order be also disobey'd, a criminal contempt must be the construction of the person's behaviour, to be followed, as in the former case, with a proper punishment. The other is, to [Page 181] order the thing to be done under a penalty. I give an example. The freeholders are by statute bound to convene at Michaelmas, in order to receive upon the roll persons qualified; but no penalty is added to compel obedience. In odium of a freeholder who desires to be put upon the roll, they forbear to meet. What is the remedy here where there is no pecuniary damage? The court of session may appoint them to meet under a penalty. For, in general, if it be the duty of judges to order the end, they must use such means as are in their power. And if this can be done with respect to a private person, it follows, that where a thing is ordered to be done for the good of the public, it belongs to the court of session, upon application of the King's Advocate, to order the thing to be done under a penalty. In a process at the instance of an heritor intitled to a salmon-fishing in a river, against an inferior heritor, for regulating his cruive and cruive-dike, concluding, That he should observe the Saturday's slap; that the hecks of his cruives should be three inches wide, &c. it was decreed, That the defendant should be obliged to observe these regu­lations under the penalty of L. 50 Sterling. It was urged for the de­fendant, That the pursuer must be satisfied with damages upon con­travention; because the law has imposed no penalty, and the court can impose none. Answered, That it is beyond the reach of art to ascertain the damage in this case; and therefore that to inforce these regulations a penalty is necessary. For if this remedy be neglected by the legislature, it must supplied by a court of equity upon the principle, That if there be a right it ought to be made effectual.

What next come under consideration are statutes forbidding things to be done under a penalty; for to the omission of a thing ordered to be done, a penalty is seldom annexed. These are distinguishable into two kinds. The first regard the more noxious evils, which the le­gislature prohibits absolutely; leaving the courts of law to employ all the means in their power for repressing them; but adding a pe­nalty beforehand, because that check is not in the power of courts of law. The second regard slighter evils, to repress which no other means are intended to be applied but a pecuniary penalty only. Both kinds are equally binding in conscience; for in every case it is a moral wrong to disobey the law. But then disobedience to a statute of the second class is attended with no other consequence but payment of the penalty; whereas the penalty in the first class is due, as we say, by and attour performance; and for that reason, a court of law, beside inflicting the penalty, is bound to use all the means in its power to make the will of the legislature effectual, in the same manner as if [Page 182] there were no penalty. And even supposing that the act prohibited is capable of being voided by the sentence of a court, the penalty ought still to be inflicted; for otherwise it will lose its influence as a prohibitory means.

Prohibitory statutes are often so inaccurately expressed, as to leave it doubtful whether the penalty be intended the only means of re­pressing the evil, or one of the means only. This defect occasions in courts of law much conjectural reasoning, and many arbitrary judge­ments. The capital circumstance for ascertaining the difference, ap­pears to be the nature of the evil prohibited. With respect to every evil of a pernicious nature, and of a general bad tendency, it ought to be held the will of the legislature to give no quarter: and conse­quently, beside inflicting the penalty, it is the duty of courts of law to use every other mean to make this will effectual. With respect a­gain to evils of a less pernicious or less extensive nature, it ought to be held the intention of the legislature, to leave no power with judges beyond inflicting the penalty. This doctrine will be illustrated by the following examples. By the act 52. parl. 1587. ‘"He who bargains for greater profit than 10 per cent. shall be punished as an usurer."’ Here is a penalty without declaring such bargains null: and yet it has ever been held the intendment of this act to discharge usury total­ly; and the penalty is deemed to be added as one mean only of ma­king the prohibition effectual. There was accordingly never any difficulty of sustaining action for voiding usurious bargains, nor e­ven of making the lender liable for the sums received by him above the legal interest. This then is held to be a statute of the first class. The following statutes belong to the second class. An exclusive pri­vilege of printing books is given to the authors and their assigns for the term of fourteen years. Any person who within the time limited prints or imports any such book, shall forfeit the same to the proprie­tor, and one penny for every sheet found in his custody; the half to the King, and the other half to whoever shall sue for the same *. With respect to the monopoly granted by this statute, it has been just­ly established, that a court of law is confined to the penalty, and cannot apply other means for making it effectual, not even an action of damages against an interloper . ‘"Members of the college of justice are discharged to buy any lands, teinds, &c. the property of which is controverted in a process, under the certification of lo­sing their office ."’ The evil here being neither so pernicious nor [Page 183] so extensive as usury, it has been always held the sense of the statute, to be satisfied with the penalty, without giving authority to reduce or void such bargains.

But though contracts or deeds contrary to statutory prohibitions of the kind last mentioned, are not subject to reduction, it is a very different point, Whether it be the duty of courts of law to force per­formance of such a contract or deed by sustaining action upon it. And yet this distinction seems to have been overlooked in the court of session: for it is the practice of that court, while they inflict the penalty, to support with their authority that very thing which is pro­hibited under the penalty. Thus a member of the college of justice buying land while the property is controverted in a process, is de­prived of his office; and yet, with the same breath, action is given him to make the minute of sale effectual *. This, in effect, is con­sidering the statute, not as prohibitory of such purchases, but mere­ly as laying a tax upon them, similar to what at present is laid up­on plate, coaches, &c. I must take the liberty to say, that there cannot be a more gross misapprehension of the spirit or intendment of any statute than this construction. Comparing together the sta­tutes contained in both classes, the only difference concerns the means employ'd for making the prohibition effectual; that beside the penal­ty, other means may be employ'd by courts of law to repress the more noxious evils, which cannot be done where the evils are less noxious. But upon cool reflection every one must be of opinion, that with respect to the prohibition both classes coincide; and that it must be the will of the legislature to prohibit both equally, because both in different degrees are hurtful to the society in general, or to part of it. This article is of no slight importance. If I have set in a just light the spirit and intendment of the foregoing statutes, it fol­lows of necessary consequence, that an act prohibited in a statute of the second class ought not to be countenanced with an action more than an act prohibited in a statute of the first class. Courts of law were instituted to inforce the will of the national legislature, as well as of the Great Legislator of the universe, and to put in execution mu­nicipal laws as well as those of nature. What shall we say then of a court that supports an act prohibited by a statute, or authorises any thing contradictory to the will of the legislature? What else can we justly say, but that such proceeding, repugnant to the very de­sign [Page 184] of its institution, is a direct breach of trust, by acting in opposi­tion or defiance of the law? It is a breach of trust of the same na­ture, though not the same in degree, with that of sustaining action for a bribe promised to commit murder or robbery. With regard then to statutes of this kind, though a court is confined to the pe­nalty, and cannot inflict any other punishment, it doth by no means follow, that action ought to be sustained for making the act prohi­bited effectual: on the contrary, to sustain action would be flying in the face of the legislature. The statute, for example, mentioned above, concerning members of the college of justice, is satisfied with the penalty of deprivation, without declaring the bargain null; and therefore to sustain a reduction of the bargain would be to punish beyond the words, and perhaps beyond the intention of the statute. But whether action should be sustained to make the bargain effectual, is a consideration of a very different nature: the refusing action in this case, is made necessary by the very constitution of a court of law; it being inconsistent with the design of its institution, to inforce any contract or any deed prohibited by statute. It follows indeed from these premisses, that it is left optional to the vender to fulfil the contract or not at his pleasure; for if a court of law cannot inter­pose, he is under no legal compulsion. Nor is this a novelty. In many cases beside the present, the rule is applicable Quod potior est con­ditio possidentis, where an action will not be given to compel perform­ance, and yet if performance be made, an action will as little be given to recall it *.

Pondering this subject sedately and attentively, I can never cease wondering to find the practice I have been condemning extended to a much stronger case, where the purpose of the legislature to make an absolute prohibition is clearly expressed. The case I have in view relates to the revenue-laws, prohibiting certain goods to be im­ported into this island, or prohibiting them to be imported from certain places named. To import such goods, or to bargain a­bout their importation, is clearly a contempt of legal authori­ty; and consequently a moral wrong, which the smuggler's con­science ought to check him for, and which it will check him for, if he be not already a hardened sinner. And yet, by mista­king the nature of prohibitory laws, actions in the court of session have been every day sustained for making such smuggling-contracts effectual. ‘"Non dubium est, in legem committere eum, qui verba legis amplexus, contra legis nititur voluntatem. Nec poenas in­sertas legibus evitabit, qui se contra juris sententiam saeva praero­gativa [Page 185] verborum fraudulenter excusat. Nullum enim pactum, nullam conventionem, nullum contractum inter eos videri volumus subsecutum, qui contrahunt lege contrahere prohibente. Quod ad omnes etiam legum interpretationes, tam veteres quam novellas, trahi generaliter imperamus; ut legislatori quod fieri non vult, tan­tum prohibuisse sufficiat: caeteraque, quasi expressa, ex legis liceat voluntate colligere: hoc est, ut ea, quae lege fieri prohibentur, si fuerint facta, non solum inutilia, sed pro infectis etiam habeantur: licet legislator fieri prohibuerit tantum, nec specialiter dixerit inutile esse debere quod factum est *."’

So much upon the powers of a court of common law with respect to statutes. Upon the whole it appears, that this court is confined to the will of the legislature as expressed in the statutory words. It has no power to rectify the words, nor to apply any means for making the purpose of the legislature effectual, other than those directed by the legislature, however defective they may be. This imperfection is remedied by a court of equity, which enjoys, and ought to enjoy, the same powers with respect to statutes that are explained above with respect to deeds and covenants. To give a just notion of these powers concerning the present subject, the following distinction will contribute. Statutes, as far as they regard matter of law, and come under the cognisance of a court of equity, may be divided in­to two classes. First, Those which have justice for their object, by supplying the defects, or correcting the injustice, of common law. Second, Those which have utility for their sole object. Statutes of the first class are intended for no other purpose but to enlarge the ju­risdiction of courts of common law, by impowering them to distri­bute justice where their ordinary powers reach not: such statutes are not necessary to a court of equity, which, by its original constitu­tion, can supply the defects and correct the injustice of law: but they have the effect to limit the jurisdiction of a court of equity; for the remedies afforded by them must be put in execution by the courts of common law, and no longer by a court of equity. All that is left to a court of equity concerning a statute of this kind, is to supply the defects and correct the injustice of common law, as far as the statute is incomplete or imperfect; which, in effect, is supplying the defects of the statute. But it is not a new power bestowed upon a court of equity as to statutes that are imperfect: the court only goes on to exercise its wonted powers with respect to matters of ju­stice that are left with it by the statute, and not bestowed upon courts [Page 186] of common law. I explain myself by an example. When goods are wrongously taken away, the common law of England gave an action for restitution to none but to the proprietor; and therefore when the goods of a monastery were pillaged during a vacancy, the suc­ceeding abbot had no action. This defect in law with respect to ma­terial justice, would probably have been left to the court of chancery, had its powers been evolved when the statute of Marlebirge supplying the defect was made *; but no other remedy occurring, that statute impowers the judges of common law to sustain action. Had the statute never existed, action would undoubtedly have been sus­tained in the court of chancery: all the power that now remains with that court, is to sustain action where the statute is defective. The statute enacts, ‘"That the successor shall have an action a­gainst such transgressor, for restoring the goods of the monaste­ry."’ Attending to the words singly, which a court of common law must do, the remedy is incomplete; for trees cut down and car­ried off are not mentioned. This defect in the statute, is supplied by the court of chancery. And Coke observes, that a statute which gives remedy for a wrong done, shall be taken by equity. After all, it makes no material difference, whether such interposition of a court of equity, be considered as supplying defects in common law, or as supplying defect [...] in statutes. It is still enforcing justice in matters which come not under the powers of a court of common law.

Statutes again that have utility for their object, are of two kinds. First, Those which are calculated for promoting the positive good and happiness of the society in general, or of some of its members in par­ticular. Second, Those which are calculated for preventing mischief solely. Defective statutes of the latter kind may be supplied by a court of equity; because, even independent of a statute, that court hath power to make regulations for preventing mischief. But that court hath not, more than a court of common law, any power to supply defective statutes of the former kind; because it is not impowered ori­ginally to interpose in any matter that hath no other tendency but merely to promote the positive good of the society. But this is only mentioned here to give a general view of the subject: for the powers of a court of equity as directed by utility are the subject of the next book.

Having said so much in general, we are prepared for particulars; which may commodiously be distributed into three sections. First, [Page 187] Where the will of the legislature is not justly expressed in the statute. Second, Where the means enacted fall short of the end purposed by the legislature. Third, Where the means enacted reach unwarily beyond the end purposed by the legislature.

SECT. I. Where the will of the legislature is not justly expressed in the statute.

THis section, for the sake of perspicuity, shall be divided into three articles. First, Where the words are ambiguous. Se­cond, Where they fall short of will. Third, Where they go beyond will.

ART. I. Where the words are ambiguous.

THE following is a proper instance. By the act 250. parliament 1597, ‘"Vassals failing to pay their feu-duties for the space of two years, shall forfeit their feu-rights, in the same manner as if a clause irritant were ingrossed in the infeftment."’ The forfeiting clause here is ambiguous: it may either mean an ipso jure forfeiture upon elapsing of the two years: or it may mean a forfeiture if the feu-duty be not paid after a regular demand in a process. Every ambiguous clause ought to be so interpreted as to support the rules of justice, because such must be constructed the intendment of the le­gislature; and that by this rule the latter sense must be chosen, will appear from the slightest reflection. The remedy here provided a­gainst the obstinacy or negligence of an undutiful vassal, could never be intended a trap for the innocent, by forfeiting those who have failed in payment through ignorance or inability. The construction chosen making the right voidable only, not void ipso jure, obliges the superior to insist in a declarator of irritancy or forfeiture, in order to void the right; which gives the vassal an opportunity to prevent the forfeiture, by paying up all arrears. By this method, it is true, the guilty may escape: but this is far more eligible in common justice, than that the innocent be punished with the guilty.

ART. II. Where the words fall short of will.

IN the act of Charles II. laying a tax on malt-liquors, there are no words directing the tax to be paid, but only a penalty in case of not payment. The exchequer, which, like the session, is a court both of common law and of equity, supplies the defect; and, in or­der to fulfil the intendment of the statute, sustains an action for pay­ment of the tax.

ART. III. Where the words go beyond will.

BY the act 5. parl. 1695, it is enacted, ‘"That hereafter no man binding for and with another conjunctly and severally, in any bond or contract for sums of money, shall be bound longer than seven years after the date of the bond."’ It appearing to the court, from the nature of the thing, and from other clauses in the statute, that the words are too extensive, and that the privilege was intended for none but for cautioners upon whose faith money is lent, they have for that reason been always in use to restrict the words, and to deny the privilege to other cautioners.

The act 24. parl. 1695, for making effectual the debts of heirs who after three years possession die in apparency, is plainly calcu­lated for debts only that are contracted for a valuable consideration. The act however is expressed in such extensive terms, as to compre­hend debts and deeds, gratuitous as well as for a valuable conside­ration. The court therefore, restricting the words to the sense of the statute, never sustains action upon this statute to gratuitous cre­ditors.

The regulations 1695, admitting no objection against a decreet­arbitral but bribery and corruption only, reach unwarily beyond the meaning of the legislature. A decreet-arbitral derives its force from the submission; and for that reason every good objection against a submission must operate against the decreet-arbitral. But a submis­sion is in its nature a mutual contract; and therefore every objection that in its nature is effectual to cut down the submission as a mutual contract, must be equally effectual to cut down the decreet-arbitral founded upon it.

The following is an instance from the Roman law with respect to the hereditatis petitio, of words reaching inadvertently beyond the will of the legislator. ‘"Illud quoque quod in oratione Divi [Page 189] Hadriani est, ut post acceptum judicium id aclori praestetur, quod habi­turus esset, si eo tempore, quo petit, restituta esset hereditas, interdum durum est: quid enim, si post litem contestatam mancipia, aut ju­menta, aut pecora deperierint? Damnari debebit secundum verba orationis: quia potuit petitor, restituta hereditate, distraxisse ea. Et hoc justum esse in specialibus petitionibus Proculo placet. Cassius contra sensit. In praedonis persona Proculus recte existimat: in bo­nae fidei possessoribus Cassius. Nec enim debet possessor aut morta­litatem praestare, aut propter metum hujus periculi temere indefen­sum jus suum relinquere *."’

SECT. II. Where the means enacted fall short of the end purposed by the legis­lature.

THE first instance shall be given of means that afford a complete remedy in some cases, neglecting others ubi par est ratio. In order to fulfil justice, the will of the legislature may be made effectual by a court of equity, whatever defect there may be in the words. Take the following examples. In the Roman law, Ulpian men­tions the following edict. ‘"Si quis id quod, jurisdictionis per­petuae causa, in albo, vel in charta, vel in alia materia proposi­tum erit, dolo malo corruperit; datur in eum quingentorum aureorum judicium, quod populare est."’ Upon this edict Ul­pian gives the following opinion. ‘"Quod si, dum proponitur, vel ante propositionem, quis corruperit; edicti quidem verba cessa­bunt, Pomponius autem ait sententiam edicti porrigendam esse ad haec *."’

"Oratio Imperatorum Antonini et Commodi, quae quasdam nuptias in personam senatorum inhibuit, de sponsalibus nihil locuta est: recte tamen dicitur, etiam sponsalia in his casibus ipso jure nullius esse momenti; ut suppleatur, quod orationi deest ."

"Lex Julia, quae de dotali praedio prospexit, ne id marito liceat 231 [Page 190] obligare, aut alienare, plenius interpretanda est: ut etiam de sponso idem juris sit, quod de marito *."

By the statute of Glocester, ‘"A man shall have a writ of waste against him who holdeth for term of life or of years ."’ This statute, which supplies a defect in the common law, is extended against one who possesses for half a year or a quarter. For (says Coke) a tenant for half a year being within the same mischief shall be within the same remedy, though it be out of the letter of the law .

An heir, whether apparent only, or entered cum beneficio, cannot act more justly with respect to his predecessor's creditors than to bring his predecessor's estate to a judicial sale. The price goes to the credi­tors, which is all they are intitled to in justice; and the surplus, if a­ny be, goes to the heir, without subjecting him to trouble or risk. The act 24. parl. 1695, was accordingly made, impowering the heir-apparent to bring to a roup or public auction his predecessor's estate, whether bankrupt or not. But as there is a solid foundation in ju­stice for extending this privilege to the heir entered cum beneficio, he is understood as omitted per incuriam; and the court of session supplied the defect, by sustaining a process at the instance of the heir cum be­neficio, for selling his predecessor's estate .

By the common law of Scotland, a man's creditors after his death had no preference upon his estate: the property was transferred to his heir, and the heir's creditors came in for their share. This was gross injustice; for the ancestor's creditors, who lent their money upon the faith of the estate, ought in all views to have been preferred. The act 24. parl. 1661, made to redress the injustice of the common law in this particular, declares, ‘"That the creditors of the predecessor do­ing diligence against the apparent heir, and against the real estate which belonged to the defunct, within the space of three years after his death, shall be preferred to the creditors of the apparent heir."’ The remedy here reaching the real estate only, the court of session completed the remedy, by extending it to the personal estate **, and also to a personal bond limited to a substitute named ††. And as be­ing a court of equity it was well authorised to make this extension; for to withdraw from the predecessor's creditors part of his personal estate, is not less unjust than to withdraw from them part of his real estate.

[Page 191] One statute there is, or rather clause in a statute, which affords a plentiful harvest of instances. By the principles of common law an heir is intitled to continue the possession of his ancestor; and formerly if he could colour his possession with any sort of title, however obsolete or defective, he enjoy'd the rents; bestowing commonly a share to prevent the creditors from drawing payment out of the estate *. A­mong many remedies for this flagrant injustice, there is a clause in the act 62. parl. 1661, enacting, ‘"That in case the apparent heir of any debtor shall acquire right to an expired apprising, the same shall be redeemable from him, his heirs and successors, within ten years after acquiring of the same, by the posterior apprisers, upon payment of the purchase-money."’ This remedy has been extended in many particulars, in order to fulfil the end intended by the legisla­ture. For, 1mo, Though the remedy is afforded to apprisers only, it is extended to personal creditors. 2do, It has been extended even to an heir of entail, impowering him to redeem an apprising of his en­tailed lands after it was purchased by the heir of line. 3tio, Though no purchase is mentioned in this clause but what is made by the heir-apparent, the remedy however is extended against a presumptive heir, who cannot be heir-apparent while his ancestor is alive. 4to, It was judged, that an apprising led both against principal and cautioner, and purchased by the heir-apparent of the principal, might be re­deemed by the creditors of the cautioner. This was a stretch, but not beyond the bounds of equity: the cautioner himself, as creditor for relief, could have redeemed this apprising in terms of the statute; and it was thought, that every privilege competent to a debtor ought to be extended to his creditors, in order to make their claims effectual. 5to, The privilege is extended to redeem an apprising during the le­gal, though the statute mentions only an expired apprising. And, lastly, Though the privilege of redemption is limited to ten years af­ter the purchase made by the heir-apparent, it was judged, that the ten years begin not to run but from the time that the purchase is known to the creditors. These decisions all of them are to be found in the Dictionary, vol. 1. p. 359.

It is chiefly to statutes of this kind that the following passage is applicable. ‘"Non possunt omnes articuli singillatim aut legibus aut senatusconsultis comprehendi: sed cum in aliqua causa sententia eorum manifesta est, is, qui jurisdictioni praeest, ad similia proce­dere, atque ita jus dicere debet. Nam, ut ait Pedius, quoties lege aliquid, unum vel alterum introductum est, bona occasio est, caete­ra, [Page 192] quae tendunt ad eandem utilitatem, vel interpretatione vel certe jurisdictione, suppleri *."’

The next branch is of means that are incomplete in every respect, where the very thing in view of the legislature is but imperfectly re­medied. Of this take the following illustrious example, which at the same time furnishes an opportunity to explain the nature and effect of an adjudication after its legal is expired.

An adjudication during the legal is a pignus praetorium: and expiry of the legal is held to transfer the property from the debtor to the creditor; precisely as in a wadset or mortgage, where the redemption is limited within a day certain. Yet the rule which, with relation to a wadset, affords an equity of redemption after the stipulated term of redemption is past , has never been extended, directly at least, to re­lieve against an expired legal. This subject therefore is curious, and merits peculiar attention.

In a poinding of moveables the debtor has not an equity of redemp­tion, because the moveables are transferred to the creditor at a just value. The same being originally the case of an apprising of land, the legal reversion of seven years introduced by the act 36. parl. 1469, was in reality a privilege bestowed upon the debtor, without any foundation in equity; and therefore equity could not support an ex­tension of the reversion one hour beyond the time limited by the sta­tute. But the nature of an apprising was totally reversed by an op­pressive and dishonest practice of attaching land for payment of debt, without preserving any measure between the debt and the value of the land; by which great portions of land were sometimes carried off for payment of inconsiderable sums. An apprising, as originally consti­tuted, was a judicial sale for a just price: but an execution, by which land at random is attached for payment of debt without regarding its value, cannot possibly be a sale for a just price: it ought to have been reprobated as without any foundation in law. But indulging it with the utmost favour, it would be flagrant injustice to hold it for any thing better than a pignus praetorium, a security for payment of debt. Accordingly the act 6. parl. 1621, considers it in that light, enact­ing, ‘"That apprisers shall be accountable for their intromissions with­in the legal, first in extinction of the interest, and thereafter of the capital;"’ which, in effect, is declaring the property to remain with the debtor, as no man is bound to account for rents that are his own. And it is considered in the same light by the act 62. parl. 1661, [Page 193] "ranking pari passu with the first effectual apprising, all other appri­sings led within year and day of it:"’ creditors real or personal may be ranked upon a common subject pari passu, or in what order the le­gislature thinks proper; but such ranking is incompatible with the nature of property a.

An apprising then, according to its later model, or, in place of it, an adjudication, is, during the legal, a pignus praetorium only, or a ju­dicial security for debt; and the question is, Whether, after this alte­ration, it be converted into a title of property upon expiry of the legal? The act 1621 above mentioned goes no further than to make apprisers accountable for their intromission within the legal; and if they be not accountable thereafter, the inference seems fair that upon that account they must be held to be proprietors. This inference, however plausi­ble, amounts not to a certainty: it is consistent with the statute that an apprising may continue a pignus praetorium after the legal as well as before, with the following difference, that like a proper wadsetter the appriser shall not be accountable after the legal. But even supposing the inference to be invincible, it remains to be considered how far a court of equity is bound by it. The statute makes apprisers account­able during the legal; but there it stops short, and does not say that ipso facto, upon expiration of the legal, an apprising, from a pignus praetorium, is converted into a title of property. However clear the in­ference may be, it is only an argument drawn by reasoning, and has no direct authority from the statute: it does not appear that the legis­lature intended this inference, or so much as foresaw it. A court of equity then, though it has no power to overturn express law, is not bound by any argument drawn from a statute, except as far as that argument is supported by the rules of justice. And in that view we proceed to inquire, what are the rules of justice with respect to an ap­prising or an adjudication after expiration of the legal.

According to the original form of an apprising, requiring a strict e­quality between the debt and the value of the land, it was rational and just, that the property of the land should instantly be transferred to the creditor in satisfaction of the debt; but it could no longer be rational or just to transfer the property after it became customary to attach land at random without regarding its extent. The debtor's [Page 194] whole land-estate was apprised, and is now adjudged by every single creditor, however small his debt may be; and therefore to transfer to an appriser or adjudger the property of the land ipso facto, upon the debtor's failure to make payment within the legal, would be a penal irritancy of the severest kind. On the other hand, this supposed ipso facto transference of the property is penal upon the creditor where the land adjudged by him happens to be less in value than his debt: in that case it would be glaring injustice to force the land upon him in payment of his debt. Nay more, it is repugnant to first principles, that a man should be compelled to take land for his debt, however valuable the land may be: it may be his choice to continue possession as creditor after the legal as well as before; and this must be under­stood his choice, if he do no act importing the contrary. To relieve the creditor as well as debtor from the foregoing hardships, equity steers a middle course. It admits not an ipso facto transference of the property, upon expiry of the legal; but only gives the creditor an option, either to continue in his former situation, or to take the land for his debt; which option must be declared in a process, intitled a declarator of expiry of the legal. This removes all hardships: land is not imposed upon the creditor against his will: the debtor, on the other hand, has an opportunity to purge his failure, by making pay­ment; and if he suffer a decree to pass without offering payment, it is just that the property be transferred to the creditor in satisfaction of the debt; for judicial proceedings ought not for ever to be kept in suspense. Thus the law is so constructed as to make the property be transferrable only, and not to be transferred but by the intervention of a declarator. And the declarator here serves the same double pur­pose that it serves in the lex commissoria in pignoribus: it is a declaration of the creditor's will to accept the land for his money; and it relieves the debtor from the forfeiture of a penal irritancy, by admitting him to purge at any time before the declaratory decree pass.

We proceed to examine how far the practice of the court of session concerning apprisings and adjudications is conformable to the prin­ciples of equity above laid down. And I must prepare my reader be­forehand to expect here the same wavering and fluctuation between common law and equity, that, in the course of this work, is discover­ed in many other instances. I observe, in the first place, That though the court, adhering to common law, has not hitherto sustained to the debtor an equity of redemption after expiry of the legal, yet that the same thing in effect is done indirectly, through the influence of equity. Some pretext or other of informality is always embraced to [Page 195] open an expired legal, in order to afford the debtor an opportunity to redeem his land by payment of the debt. And this matter has been carried so far as to open the legal to the effect solely of intitling the debtor to make payment, holding the legal as expired with respect to other effects, such as that of relieving the creditor from accounting for the rents levied by him, unless during the ten years that the legal is current by statute *. Here is a strange jumble between common law and equity: the freeing the creditor from accounting for the rents after the ten years, supposes the property to have been transferred to him ipso facto by the lapse of these years: and yet the admitting pay­ment to be made after the ten years, is supposing that the property is not transferred before a declarator of expiry of the legal; for upon no other supposition can payment be forc'd upon the adjudger after the statutory reversion is expired.

In another particular our practice is still less consistent, if possible, with any just principles. With respect to the adjudger, it is justly held, that the debt due to him cannot be extinguished without his consent; whence it necessarily follows, that, even after the legal is expired, the adjudger must have an option, to adhere to his debt, or to take the land in place of it. This rule is established in our present practice; and what man is so blind as not to perceive what follows from the rule? An adjudger, upon whose will it depends to continue to be a creditor, or to take himself to the land in place of his debt, cannot already be proprietor of that land: before the property can be transferred to him, he must interpose his will, which is done by a declarator; and so far our practice proceeds upon just principles. But whether what is held with respect to the debtor be consistent with that practice, we next inquire. We hold, that the debtor's power of re­demption is confined within the legal; that, by expiry of the legal, he is forfeited ipso facto of his property; and that thereafter he has no power to redeem, or to purge his failure of payment. Here we find one opinion inconsistent with another, and the same inconsistence in different branches of our practice: with respect to the creditor, the property is not his, till he chuse to insist in a declarator of expiry of the legal: with respect to the debtor again, the property without a declarator is lost to him ipso facto, by expiry of the legal. Can any man say who is proprietor in the interim? These notions with respect to the same point cannot be reconciled; but the cause of them may be accounted for. In all our practice we find a strong leaning to cre­ditors [Page 196] in opposition to their debtors. A propensity in favour of cre­ditors hath bestowed upon an appriser the equitable privilege of an option between the debt, and the land upon which it is secured: the rigor, on the other hand, with which debtors are treated, has denied them the equitable privilege of purging an irritant clause at any time before the door be shut against them by a declaratory decree.

SECT. III. Where the means enacted reach unwarily beyond the end purposed by the legislature.

BY the statute 9o Annae, cap. 13. ‘"The person who at one time loses the sum or value of L. 10 Sterling at game, and pays the same, shall be at liberty within three months to sue for and recover the money or goods so lost, with costs of suit. And in case the lo­ser shall not within the time foresaid really and bona fide bring his action, it shall be lawful for any one to sue for the same, and triple value thereof, with costs of suit."’ Here there is no limitation mentioned with respect to the popular action; nor, as far as con­cerns England, is it necessary, because, by the English statute 31st Eliz. cap. 5. ‘"no action shall be sustained upon any penal statute made or to be made, unless within one year of the offence."’ A li­miting clause was necessary with regard to Scotland only, to which the said statute of Elizabeth reacheth not; and therefore, as there is no limitation expressed in the act, a court of common law in Scotland must sustain the popular action for forty years, contrary evidently to the will of the legislature, which never intended a penal statute to be perpetual in Scotland, that in England is circumscribed within a year. It belongs therefore to the court of session to limit this statute, by deny­ing action if not brought within one year after the offence; for it cer­tainly was not the intention of the legislature to distinguish Scotland from England with respect to prescription of penal actions. Hence in the decision January 19. 1737, Murray contra Cowan, where an action was sustained even after the year for recovering money lost at play, with the triple value, it clearly appears, that the court of session act­ed as a court of common law, and not as a court of equity.

The act 6. parl. 1672, requires, ‘"That all executions of summons shall bear expressly the names and designations of the pursuers and defenders."’ This regulation was necessary in order to con­nect [Page 197] the execution with the summons. For as at that period it was common to write an execution upon a paper apart, bearing a refer­ence in general to the summons, in the following manner, ‘"That the parties within expressed were lawfully cited,"’ &c. the execu­tion of one summons might be applied to any other, so as to become legal evidence of a citation that was never given. But as there can be no opportunity for this abuse when an execution is writ upon the back of the summons, it belongs to a court of equity, with respect to a case where the statutory remedy is unnecessary, to relieve so far from the enacting clause; which is done by declaring, that it is not necessary to name the pursuers and defenders when the execution is writ on the back of the summons *.

By the 34th and 35th Henry VIII. cap. 5. § 14. it is declared, That a will or testament made of any manors, lands, &c. by a feme covert, shall not be effectual in law. This could not be intended to render ineffectual a will made by a woman whose husband is banish­ed for life by act of parliament. And accordingly such will was sus­tained .

The statutes introducing the positive and negative prescriptions, have for their object public utility; and the supplying defects in these statutes rests upon the same principle; a subject that belongs to the next book, which contains the proceedings of a court of equity acting upon the principle of utility. But to mitigate these statutes with respect to articles that happen to be oppressive or unjust, is a branch of the present subject; and to examples of that kind I pro­ceed. Common law, which limits not actions within any time, af­fords great opportunity for unjust claims, which, however ill found­ed originally, are brought so late as to be secure against all detection. It is not wrong in common law to sustain an old claim, for a claim may be very old and yet very just: but to sustain claims with­out any limitation of time, gives great scope to fraud and forgery, and for that reason public utility required a limitation. Upon that principle the statutes 1469 and 1474 were made, denying action up­on debts and other claims beyond forty years. A court of common law proceeding upon these statutes, cannot sustain action after forty years, even where a claim is evidently well founded, as where it is proved to be so by referring it to the oath of the defendant. In this case the means enacted go evidently beyond the end purposed by the legislature; which intended only to secure against suspicious and ill­founded 244 [Page 198] claims, not to cut off any just debt; and in this view no­thing farther could be intended than to introduce a presumption a­gainst every claim brought after forty years; reserving to the pur­suer to bring positive evidence of its being a subsisting claim, and justly due. Yet the court of session, acting as a court of common law, did in one case refuse to sustain action after the forty years, though the debt was offered to be proved by the oath of the defend­ant *. In another point they act properly as a court of equity. Per­sons under age are relieved from the effect of these statutes, for an ex­treme good reason, that no presumption can lie against a creditor while under age, for delaying to bring his action.

The same construction in equity is given to the English act of limi­tation concerning personal actions: it is held, That a bare acknow­ledgement of the debt is sufficient to bar the limitation ; importing, that the legislature intended not to extinguish a just debt, but only to introduce a presumption of payment. But with this doctrine I cannot reconcile what seems to be established in the English courts of equity, ‘"That if a man by will or deed subject his land to the pay­ment of his debts, debts barred by the statute of limitations shall be paid; for they are debts in equity, and the statute hath not ex­tinguished the obligation, though it hath taken away the reme­dy ."’ This differs widely from the equitable construction of the statute; for if its intendment be to presume such debts paid, they cannot even in equity be considered as debts, unless the statutory pre­sumption be removed by contrary evidence. The following case pro­ceeds upon the same misapprehension of the statute: ‘"It hath also been ruled in equity, that if a man has a debt due to him by note, or a book-debt, and has made no demand of it for six years, so that he is barred by the statute of limitations; yet if the debtor or his executor, after the six years, puts out an advertisement in the Gazette, or any other news-paper, that all persons who have any debts owing to them may apply to such a place, and that they shall be paid; this, though general, (and therefore might be in­tended of legal subsisting debts only), yet amounts to such an ac­knowledgement of that debt which was barred, as will revive the right, and bring it out of the statute again ."’

To the case first mentioned, of referring a debt to the defendant's oath, a maxim in the law of England is obviously applicable, [Page 199] "That a case out of the mischief, is out of the meaning of the law, though it be within the letter."’ A claim, of whatever age, refer­red to the defendant's oath, is plainly out of the mischief intended to be remedied by the foregoing statutes; and therefore ought not to be regulated by the words, which in this case go beyond the end proposed. Coke* illustrates this maxim by the following example. The common law of England suffered goods taken by distress to be driven where the creditor pleased; which was mischievous, because the tenant, who must give his cattle sustenance, could have no know­ledge where they were. This mischief was remedied by statute 3. Edward I. cap. 16. enacting, ‘"That goods taken by distress shall not be carried out of the shire where they are taken."’ Yet, says our author, if the tenancy be in one county and the manor in ano­ther, the lord may drive the distress to his manor, contrary to the words of the statute; for the tenant, by doing of suit and service to the manor, is presumed to know what is done there.

The act 83. parl. 1579, introducing a triennial prescription of shop-accounts, &c. is directed to the judges, enacting, ‘"That they shall not sustain action after three years,"’ without making any distinction between natives and foreigners. Nor is there reason for making a distinction; because every claimant, native or foreigner, must bring his action for payment in the country where the debtor resides; and for that reason both equally ought to guard against the prescription of that country. When such is the law of prescription in general, and of the act 1579 in particu­lar, I cannot avoid condemning the following decision. ‘"In a pursuit for an account of drugs, furnished from time to time by a London druggist to an Edinburgh apothecary, the court repelled the defence of the triennial prescription, and decreed, That the act of limitation in England, being the locus contractus, must be the rule ."’ This decision is erroneous, not only for the reason above given, but also for a separate reason. The English statute of limitation has no authority with us, otherwise than as inferring a presumption of payment from the delay of bringing an action with­in six years; and this presumption cannot arise where the debtor is abroad, either in Scotland or beyond seas.

If the prescription of the country where the debtor dwells be the rule, which every creditor foreign or domestic ought to have in view, it follows necessarily, that a defendant, to take advantage of the pre­scription [Page 200] of the country where the action is brought against him, must be able to qualify his residence there during the whole course of the prescription. While the debtor resides in England, for exam­ple, or in Holland, the creditor has no reason to be upon his guard against the Scotch triennial prescription: and supposing the action to be brought the next day after the debtor settles in Scotland, it would be absurd that the creditor should be cut out by the trien­nial prescription. I illustrate this doctrine by a plain case. A shop­keeper in London furnishes goods to a man who has his residence there. The creditor, trusting to the English statute of limitation, reckons himself secure if he bring his action within six years; but is forc'd to bring his action in Scotland, to which the debtor re­tires after three years. It would in this case be gross injustice, to sustain the Scotch triennial prescription as a bar to the action. This never could be the intention of our legislature; and in this view the means enacted in the statute 1579 are unwarily too extensive, forbid­ding action after three years, without limiting the defence to the case where the defendant has been all that time in Scotland. The sta­tute therefore ought to be limited to the case now mentioned, which will make it correspond to justice and to the intendment of the le­gislature.

Equity is also applied to mitigate the rigor of statute-law with re­spect to evidence. By the English statute of frauds and perjuries *, it is enacted, ‘"That all leases, estates, interests of freehold or terms of years, made or created by parole and not put in writing, shall have the force and effect of leases or estates at will only."’ In the construction of this statute the following point was resolved, That if there be a parole-agreement for the purchase of land, and that in a bill brought for a specific execution the substance of the agreement be set forth in the bill, and confessed in the defendant's answer, the court will decree a specific execution, because in this case there is no dan­ger of perjury, which was the only thing the statute intended to pre­vent . Again, whatever evidence may be required by law, yet it would be unjust to suffer any man to take advantage of the defect of evidence, when the defect is occasioned by his own fraud. And ac­cordingly there are many instances in the English law-books, where a parole-agreement intended to be reduced in writing, but prevented by fraud, has been decreed in equity, notwithstanding the statute of [Page 201] frauds and perjuries. Thus upon a marriage-treaty, instructions gi­ven by the husband to draw a settlement are by him privately coun­termanded: after which he draws in the woman, upon the faith of the settlement, to marry him. The parole-agreement will be decreed in equity *.

Statutory irritancies in an entail are handled book 1. part 1. chap. 4. sect. 4. art. 5.

CHAP. VI. Powers of a court of equity to remedy what is imperfect in common law with respect to transactions between debtor and creditor.

IN these transactions we find daily instances of oppression, some­times by the creditor, sometimes by the debtor, authorised by one or other general rule of common law, which happens to be unjust when applied to some singular case out of the reason of the rule. In every case of this kind, it is the duty of a court of equity, to in­terpose, and to relieve from the oppression. To trust this power with some court is evidently a matter of necessity, for otherwise wrong would be authorised without remedy. Such oppression appears in different shapes and in different circumstances, which I shall endea­vour to distinguish by arranging them under different heads; begin­ning with the oppression a creditor may commit under protection of common law, and then proceeding to what may be committed by a debtor.

SECT. I. Injustice of common law with respect to compensation.

BY the common law of this land, when a debtor is sued for pay­ment, it will afford no defence that the plaintiff owes him an e­quivalent sum. This sum he may demand in a separate action; but in the mean time, if he make not payment of the sum demanded from him, a decree will issue against him to be followed with execu­tion. Now this is rigorous, or rather unjust. For, with respect to [Page 202] the plaintiff, unless he mean to oppress, he cannot wish better pay­ment than to be discharged of the debt he owes the defendant. And, with respect to the defendant, it is gross injustice to subject him to the most rigorous execution for failing to pay a debt, when possibly the only means he has for payment is that very sum which the plain­tiff detains from him. To that act of injustice, however, the com­mon law lends its authority, by a general rule, impowering every creditor to proceed to execution when his debtor fails to make pay­ment. But that rule, however just in the main, was never intended to take place in the present case; and therefore a court of equity remedies an act of injustice occasioned by a too extensive application of the rule beyond the reason and intention of the law. The remedy is, to order an account in place of payment, and the one debt to be hit off against the other. This is termed the privilege of compensation, which always furnishes a good defence against payment where there is a counter-claim. Compensation accordingly was in old Rome sus­tained before the Praetor; and in England has long been received in courts of equity. In Scotland indeed it has the authority of a sta­tute *; which it seems was thought necessary, because at that period the court of session was probably not understood to be a court of e­quity . But perhaps there was a further view, viz. to introduce compensation as a defence into courts of common law; and with that precise view did compensation lately obtain the authority of a statute in England : the defence of compensation was always ad­mitted in the court of chancery; but by authority of the statute, it is now also admitted in courts of common law.

In applying the foregoing statute introducing compensation, a court of equity hath more extensive powers than a court of common law. A court of common law is tied to the letter of the statute, and has no privilege to inquire into its motive. But the court of session, as a court of equity, may supply its defects and correct its excesses. Yet I know not by what misapprehension, the court of session, with regard to this statute, hath always considered itself as a court of common law, and not as a court of equity; a misapprehension the less excusable, considering the subject of the statute, a matter of e­quity, which the court itself could have introduced had the statute never been made. I shall make this reflection plain, by entering into particulars. The statute authorises compensation to be pleaded [Page 203] in the original process only, by way of exception, and gives no au­thority to plead it whether in the reduction or suspension of a decree. The words are, ‘"That a liquid debt be admitted by way of excep­tion before decreet by all judges, but not in a suspension nor re­duction of the decreet."’ This limitation is proper in two views. The first is, that if a defendant omit or forbear to plead compensa­tion in the original process, the judgement is notwithstanding just; and the forbearing or omitting to use a privilege given by law, is not a good reason for challenging a judgement whether in a suspension or reduction. The other view is, that it would afford too great scope for litigiosity were defendants indulged to reserve their articles of compensation as a ground for suspension or reduction. Attend­ing to these views, a judgement purely in absence ought not to bar compensation, because judgements are often pronounced when the party hath not an opportunity to appear. For that reason, a party who is restored to his defences in a suspension, upon showing that his absence was not contumacious, ought to be at liberty to plead every defence, whether in equity or at common law. And yet our judges constantly reject compensation when pleaded in a suspension of a de­cree in absence, though that case comes not under the reason and motive of the statute. The statute, in my apprehension, admits of still greater latitude; which is, that after a decree in foro is suspend­ed for any good reason, compensation may be received in discussing the suspension; for the statute goes no farther than to prohibit a decree to be suspended merely upon compensation. Nor can it have any bad effect to admit compensation when a cause is brought un­der review by suspension because of iniquity committed in the origi­nal process: on the contrary, it is beneficial to both by preventing a new law-suit.

If the decisions of the court of session upon the different articles of this statute show a slavish dependence on the common law; the deci­sions which regulate cases of compensation not provided for by the statute breathe a freer spirit, being governed by true principles of e­quity. I proceed to these cases. The first that presents itself, is, where one only of the two concurring debts bears interest. What shall be the effect of compensation in that case? Shall the principal and interest be brought down to the time of pleading compensation, and be set off at that period against the other debt which bears not interest? Or shall the accompt be instituted as at the time of the con­course, as if from that period interest were no longer due? Equity evidently concludes for the latter; for it considers, that each had the [Page 204] use of the other's money, and that it is not just the one should have a claim for interest while the other has none: interest is a premium for the use of money, and my creditor in effect gets that premium by having from me the use of an equivalent sum. And accordingly it is the constant practice of the court to stay the course of interest from the time the two debts concur. But this can only hold where the compensation is mutual; for a debtor who cannot retain by compen­sation is supposed to have the money always ready to meet a demand: in which situation it would be unjust to oblige him to pay 5 per cent. premium, or any premium, for money that must lie dead in his hand without being put to any use; and yet this in effect would be done, were this dead sum admitted to operate retro, so as to cut down a debt due to him bearing interest. Example. A tacksman lends a considerable sum to his landlord, agreeing in the bond to suspend the payment during the currency of the tack, but stipulating to himself a power to retain the interest annually out of the tack-duty. The tacks­man makes punctual payment of the surplus tack-duties, so often as demanded: but, by some disorder in the landlord's affairs, a consider­able arrear is allowed to remain in the hands of the tacksman. The landlord endeavouring to make the tack-duties in arrear operate retro against the bonded debt, so as to extinguish some part of the princi­pal annually, the retro operation was not admitted in this case: be­cause, in terms of the contract, the tacksman was bound to keep in his hand the surplus tack-duties ready to be paid on demand; and for that reason it would be unjust to make him pay interest for this sum; or, which comes to the same, it would be unjust to make it o­perate retro, by applying it annually in extinction of the bonded debt bearing interest *.

In applying compensation both claims must be pure; for it is not equitable to delay paying a debt of which the term is past, upon pre­text of a counter-claim that cannot at present be demanded, or that is uncertain as to its extent. But what if in this case the pursuer be bankrupt, or vergens ad inopiam? The common law authorises a bankrupt to insist for payment equally with a person solvent: but it never was the intention of the common law to oblige me to pay what I owe to a bankrupt, and to leave me without remedy as to what he owes me. This therefore is a proper case for the interposition of equity. It cannot authorise compensation in circumstances that afford not place for it; but it can prevent the mischief in the most natural man­ner, by obliging the bankrupt to find security to make good the coun­ter-claim [Page 205] when it shall become due; and this is the constant practice of the court of session.

Compensation would be but an imperfect remedy against the op­pression of the common law, if it could not be applied otherwise than by exception. The statute, it is true, extends the remedy no farther; but the court of session, upon a principle of equity, affords a remedy where the statute is silent. Supposing two mutual debts, of which the one only bears interest, the creditor in the barren debt demands his money; which the debtor pays without pleading compensation, and then demands the debt due to himself with the interest. Or let it be supposed, that payment of the barren debt is offered, which the creditor must accept, however sensible of the hardship. In these cases there is no opportunity to apply the equitable maxim, That both sums should bear interest, or neither. Therefore, to give opportuni­ty for applying that maxim, a process of mutual extinction of the two debts ought to be sustained to the creditor whose sum is barren; to have effect retro from the time of concourse: and this process accor­dingly is always sustained in the court of session.

We next take under consideration the case of an assignee. And the first question is, Whether the process of mutual extinction now men­tioned be competent against an assignee. To prevent mistakes in jud­ging of this question, let it be understood, that an assignment intimated is, by our present practice, a proper cessio in jure, transterring the claim funditus from the assignor or cedent to the assignee. This being taken for granted, it follows, that compensation cannot be pleaded against an assignee: for though one of the claims is now transferred to him, that circumstance subjects him not to the counter-claim; and there­fore there is no mutual concourse of debts between the parties, upon which to found a compensation.

Let us suppose, that the claim bearing interest is that which is as­signed. This claim, principal and interest, must be paid to the assig­nee, because he is not subjected to the counter-claim. Must then the assignee's debtor, after paying the principal and interest, be satisfied to demand from the cedent the sum due to himself which bears not interest? At that rate, the creditor whose claim bears interest, will al­ways take care by an assignment to prevent compensation. This hardship is a sufficient ground for the interposition of a court of equi­ty. If the cedent hath procured an undue advantage to himself, by making a sum bear interest in the name of an assignee, which would not bear interest in his own name; he ought to be deprived of that undue advantage, to make up what his debtor suffers by the assign­ment. [Page 206] And the proper reparation is to oblige him to pay interest ex aequitate, though the claim naturally bears none.

But if the debt assigned be that which bears not interest, a total separation is thereby made between the two debts, so as to bar com­pensation altogether. And what after this can prevent the counter-claim with its interest from being made effectual against the cedent? No objection in equity can arise to him, seeing, with his eyes open, he deprived himself of the opportunity of compensation, the only mean he had to avoid paying interest upon the counter-claim.

In handling compensation as directed by equity, I have hitherto considered what the law ought to be, and have carefully avoided the intricacies of our practice, which in several particulars is grossly er­roneous. To complete the subject, I must take a survey of that practice, the errors of which will be the more easily apprehended af­ter what is already said. By our old law, derived from that of the Romans, and from England, a creditor could not assign his claim: all he could do was to grant a procuratory in rem suam, which did not transfer the jus crediti to the assignee, but only intitled him procu­ratorio nomine to demand payment. From the nature of this title it was thought, that compensation might be pleaded against the as­signee as well as against the cedent: and indeed, considering the title singly, the opinion was right; because the pleading compensation a­gainst a procurator or assignee, is in reality pleading it against the cedent or creditor himself. The opinion however is erroneous, and the error arises from overlooking the capital circumstance, which is the equitable right that the assignee, though considered as a procura­tor only, hath to the claim assigned, by having paid a price for it. Equity will never subject such a procurator or assignee to the cedent's debts, whether in the way of payment or compensation. And as for the statute, it affords not any pretext for sustaining compensation a­gainst an assignee for a valuable consideration: it was made to recti­fy the common law, by bestowing the privilege of compensation as far as just and equitable, that is between two persons who are mu­tually debtors and creditors to each other; but it never could be the intention of the legislature, in defiance of justice, to make compen­sation effectual against an assignee who pays value. Nor must it pass unobserved, that, as our law stands at present, this iniquitous effect given to compensation is still more absurd, if possible, than it was formerly. In our later practice an assignment has changed its na­ture, and is converted into a proper cessio in jure, divesting the cedent funditus, and vesting the assignee. Whence it follows, that, after an [Page 207] assignment is intimated, compensation ought to be barred from the very nature of the assignee's title, even laying aside the objection upon the head of equity. But we begun with sustaining compensation a­gainst an assignee for a valuable consideration, in quality of a procu­rator; not adverting, that though his title did not protect him from compensation, his right as purchaser ought to have had that effect: and by the force of custom we have adhered to the same erroneous practice, even after our law is changed, when now the title of an as­signee protects him from compensation, as well as the nature of his right when he pays value for it.

SECT. II. Injustice of common law with respect to indesinite payment.

NExt of oppression or wrong that may be committed by a debtor, under protection of common law.

Every man who has the administration of his own affairs, may pay his debts in what order he pleases, where his creditors inter­pose not by legal execution. Nor will it make a difference, that se­veral debts are due by him to the same creditor; for the rule of law is, That if full payment be offered of any particular debt, the credi­tor is bound to accept, and to grant a discharge.

But now supposing a sum to be delivered by the debtor to the cre­ditor indefinitely, without applying it to any one debt in particular, the question is, By what rule shall the application be made, when the parties afterward come to state an account? If the debts be all of the same kind, it is of no importance to which of them the sum be applied: otherwise, if the debts be of different kinds, one for exam­ple bearing interest, one barren. The rule in the Roman law is, Quod electio est debitoris; a rule founded on the principles of common law. The sum delivered to the creditor, as aforesaid, cannot indeed be recalled, because it was delivered to him in order for payment; but as there was no agreement about the application, it remains still a sum belonging to the debtor; which consequently intitles him to make the application. But though this is agreeable to the rule of common law, it is not agreeable to the rule of justice; for if the debtor make an undue application, equity will interpose to relieve the creditor from the hardship. Equity indeed cannot force a man to give his money out of his own hand; and therefore, in giving it away, he may name what terms or conditions he thinks proper: up­on [Page 208] which account, though a debtor acts unjustly in applying his mo­ney toward extinction of a debt bearing interest, when he is due to the same creditor a debt bearing none; yet a remedy in this case is beyond the reach of equity. But where the money is already given away, and in the hand of the creditor, the debtor has no longer the same arbitrary power of making the application: equity will inter­pose, and will direct the application. Thus indefinite payment comes under the power of a court of equity.

In order to ascertain the equitable rules for applying an indefinite payment, a few preliminary considerations may be proper. A loan of money is a mutual contract equally for the benefit of the lender and borrower: the debtor has the use of the money he borrows, and for it pays to the creditor a yearly premium. With respect therefore to a sum bearing interest, the debtor is not bound, either in strict law or in equity, to pay the capital until the creditor make a de­mand. A debt not bearing interest is in a very different condition: the debtor has the whole benefit, and the creditor is deprived of the use of his money without a valuable consideration; which binds the debtor, in good conscience, either to pay the sum, or to pay interest. Though this be a matter of duty, it cannot however be inforced by a court of equity in all cases; for it may be the creditor's intention to assist the debtor with the use of money without interest: but up­on the first legal expression of the creditor's will to have his money, a court of equity ought to decree interest.

Another preliminary consideration is, that where a bond is grant­ed with a cautioner, the debtor is in conscience bound to pay the sum at the term covenanted, in order to relieve his cautioner, who has no benefit by the transaction. The case is different where the cau­tioner shews a willingness to continue his credit with the principal debtor.

We are now ripe for entering into particulars; and the first case I shall mention is, where two debts are due by the same debtor to the same creditor, one of which only bears interest. An indefinite pay­ment ought undoubtedly to be applied to the debt not bearing inter­est, because this debt ought in common justice to be first paid; and there is nothing to oblige the debtor to pay the other till it be de­manded. A man of candor will make the application in this man­ner; and were there occasion for a presumption, it will be presumed of every debtor that he intended such application. But the judge has no occasion to lay hold of a presumption: his authority for ma­king the application is derived from a principle of justice. The same [Page 209] rule directs, that where both debts bear interest, the indefinite pay­ment ought first to be applied for extinguishing what is due of inter­est; and thereafter for extinguishing one or other capital indiffe­rently, or for extinguishing both in proportion a.

The second case shall be of two debts bearing interest; one of which only is secured by infeftment or inhibition. It is equal to the debtor which of the debts be first paid: and therefore, the indefinite payment ought to be applied to the debt for which there is the slen­derest security; because such application is for the interest of the cre­ditor. Take another case of the same kind. A tenant in tail owes two debts to the same creditor; one of his own contracting, and one as representing the entailer. Every indefinite payment he makes ought to be ascribed to his proper debt, for payment of which there is no fund but the rents during his life. This, it is true, is against the interest of the substitutes: but their interest cannot be regarded in the application of rents which belong not to them but to the te­nant in tail: and next, as they are certantes de lucro captando, their interest cannot weigh against that of a creditor who is certans de damno evitando.

Third case. A debtor obtains an ease, upon condition of paying at a day certain the transacted sum bearing interest: he is also bound to the same creditor in a separate debt not bearing interest. The que­stion is, To which of these debts ought an indefinite payment to be applied? It is the interest of the debtor that it be applied to the transacted sum: it is the interest of the creditor that it be applied to the separate debt not bearing interest. The judge will not prefer the interest of either, but make the application in the most equitable manner, regarding the interest of both: he will therefore, in the first place, consider which of the two has the greatest interest in the application; and he will so apply the sum as to produce the greatest effect. This consideration will probably lead him to make the application to the transacted sum; for if the transaction be in a­ny degree lucrative, the debtor will lose more by its becoming inef­fectual, than the creditor will by wanting the interim use of the mo­ney due to him without interest. But then the benefit ought not to lie all on one side; and therefore equity rules, that the debtor, who gets the whole benefit of the application, ought to pay interest for the se­parate sum; which brings matters to a perfect equality between [Page 210] them. For the same reason, if the application be made to the debt not bearing interest, the transaction ought to be made effectual, not­withstanding the term appointed for paying the transacted sum be e­lapsed.

Fourth case. Suppose the one debt is secured by adjudication, the legal of which is near expiring, and the other is a debt not bearing interest. And, to adjust the case to the present subject, we shall also suppose, that the legal of an adjudication expires ipso facto without necessity of a declarator. An indefinite payment here ought to be ap­plied for extinguishing the adjudication. And, for the reason given in the preceding case, the separate debt ought to bear interest from the time of the indefinite payment.

Fifth case. An heir of entail owes two debts to the same creditor; the one a debt contracted by the entailer not bearing interest, the other a debt bearing interest contracted by the heir, which may found a declarator of forfeiture against him. An indefinite payment ought to be applied to the first-mentioned debt, because it bears not interest: for with regard to the heir's hazard of forfeiture, the forfeiture, which cannot be made effectual but by a process of declarator, may be prevented by paying the debt. And the difficulty of procuring money for that purpose, is an event too distant and too uncertain to be regarded in forming a rule of equity.

Sixth case. Neither of the debts bears interest; and one of them is guarded by a penal irritancy, feu-duties for example owing more than two years. In this case the feu-duties ought to be extinguished by the indefinite payment; because such application relieves the debtor from a declarator of irritancy, and is indifferent to the creditor as both debts are barren. Nor will it be regarded, that the creditor is cut out of the hope he had of acquiring the subject by the declarator of irritancy; because in equity the rule holds without exception, Quod potior debet esse conditio ejus qui certat de damno evitando, quam ejus qui certat de lucro captando.

Seventh case. If there be a cautioner in one of the debts, and nei­ther debt bear interest, the indefinite payment ought undoubtedly to be applied for relieving the cautioner. Gratitude demands this from the principal debtor, for whose service solely the cautioner gave his cre­dit. It may be more the interest of the creditor to have the applica­tion made to the other debt which is not so well secured: but the debtor's connection with his cautioner is more intimate than with his creditor; and equity respects the more intimate connection as the foundation of a stronger duty.

[Page 211] Eighth case. Of the two debts, the one is barren, the other bears interest, and is secured by a cautioner. The indefinite payment ought to be applied to the debt that bears not interest. The delaying pay­ment of such a debt, where the creditor gets nothing for the use of his money, is a positive act of injustice. On the other hand, there is no positive damage to the cautioner, by delaying payment of the debt in which he stands engaged. There is, it is true, a risk; but seeing the cautioner makes no legal demand to be relieved, it may be presu­med that he willingly submits to the risk.

Ninth case. One of the debts is a transacted sum that must be paid at a day certain, otherwise the transaction to be void: or it is a sum which must be paid without delay, to prevent an irritancy from taking place. The other is a bonded debt with a cautioner, bearing interest. The indefinite payment must be applied to make the transaction effec­tual, or to prevent the irritancy. For, as in the former case, the in­terest of the creditor, being the more substantial, is preferred before that of the cautioner; so, in the present case, the interest of the debtor is for the same reason preferred also before that of the cau­tioner.

Tenth case. An indefinite payment made after insolvency to a cre­ditor in two debts, the one with, the other without a cautioner, ought to be applied proportionally to both debts, whatever the na­ture or circumstances of the debts may be: for here the creditor and cautioner being equally certantes de damno evitando, ought to bear the loss equally. It is true, the debtor is more bound to the cautioner who lent his credit for the debtor's benefit, than to the creditor who lent his money for his own benefit. But circumstances of this na­ture cannot weigh against the more substantial interest of preventing loss and damage.

SECT. III. Injustice of common law with respect to rent levied indefinitely.

BY the common law of this land, a creditor introduced into posses­sion upon a wadset, or upon an assignment to rents, must apply the rent he levies toward payment of the debt which is the title of his possession; because for that very purpose is the right granted. Rent again levied by execution, upon an adjudication for example, must for the same reason be applied to the debt upon which the execution [Page 212] proceeds. Rent thus levied, whether by consent or by execution, cannot be applied by the creditor to any other debt however unexcep­tionable.

But this rule of common law may in some cases be rigorous and materially unjust; to the debtor sometimes, and sometimes to the creditor. If a creditor in possession by virtue of a mortgage or im­proper wadset, purchase or succeed to an adjudication the legal of which is current, it is undoubtedly the debtor's interest that the rents be applied to the adjudication, in order to prevent expiry of the legal, rather than to the wadset which contains no irritancy nor forfeiture upon failure of payment. On the other hand, if the creditor pur­chase or succeed to an infeftment of annualrent, upon which a great sum of interest happens to be due, it is beneficial to him that the rents be ascribed for extinction of that interest, rather than for extinc­tion of the wadset-sum which bears interest. These applications can­not be made, either of them, upon the principles of common law; and yet material justice requires such application, which is fair and equitable, weighing all circumstances. No man of candor in posses­sion of his debtor's land by a mortgage or improper wadset, but must be ashamed to apply the rents he levies to the wadset, when he has an adjudication the legal of which is ready to expire. And no debtor of candor but must be ashamed to extinguish a debt bearing interest, rather than a debt equally unexceptionable that is barren.

Equity therefore steps in to correct the oppression of common law in such cases; and it is lucky that this can be done by general rules, without hazard of making judges arbitrary. These rules are delinea­ted in the section immediately foregoing; and they all resolve into a general principle, which is, ‘"That the judge ought to apply the rents so as to be most equal with respect to both parties, and so as to prevent rigorous and hard consequences on either side."’

But this remedy against the rigor of common law, ought not to be confined to real debts which intitle the creditor to possess. In particular cases, it may be more beneficial to the debtor or to the creditor, without hurting either, to apply the rents for payment even of a personal debt, than for payment of the debt which is the title of possession. What if the personal debt be a bulky claim, that is restricted to a lesser sum upon condition of payment being made at a day certain? It is the debtor's interest that the rents be applied to this debt in the first place; as, on the other hand, it is the creditor's interest that they be applied to a personal debt which is barren. A court of equity, disregarding the rigid principles of common law, [Page 213] and considering matters in the view of material justice, reasons after the following manner. An adjudication is a title of possession, which, upon failure of payment, impowers the creditor to levy the debt out of the rents of his debtor's land: but if the creditor be already in possession, an adjudication is unnecessary: such a title, it is true, is requisite to complete the forms of the common law; but equity dispenses with these forms, when they serve no end but to load the parties concerned with expence. And thus where the question is with the debtor only, equity relieves the creditor in possession from the ceremony or solemnity of leading an adjudication upon the se­parate debts to which he has right. And no person can hesitate a moment about the equity of a rule, that is not less beneficial to the debtor by relieving him from the expence of legal execution, than to the creditor by relieving him from trouble and advance of money. Thus an executor in possession, is by equity relieved from the useless ceremony of taking a decree against himself for pay­ment of debt due to him by the deceased: and for that reason, an executor may pay himself at short-hand. In the same manner, a wadsetter in possession of his debtor's land, has no occasion to attach the rents by legal execution for payment of any separate debt due to him by the proprietor: his possession, by construction of equity, is held a good title; and by that construction the rents are held to be levied indefinitely; which makes way for the question, To which of the debts they ought to be imputed. The same question may occur where possession is attained by legal execution, without consent of the debtor. A creditor, for example, who enters into possession by virtue of an adjudication, acquires or succeeds to per­sonal debts due by the same debtor: these, in every question with the debtor himself, are justly held to be titles of possession, to give oc­casion for the question, To what particular debt the rent should be imputed.

Having said so much in general, the interposition of equity to re­gulate the various cases that belong to the present subject, cannot be attended with any degree of intricacy. The road is in a good mea­sure paved by the labour bestowed in the preceding section; for the rules there laid down with regard to debts of all different kinds, may, with very little variation, be readily accommodated to the sub­ject we are now handling. For the sake, however, of illustrating a subject that is almost totally overlooked by our authors, I shall men­tion a few rules in general, the application of which to particular cases will be extreme easy. Let me only premise, what is hinted a­bove, [Page 214] that the creditor in possession can state no debts for exhausting the rents, but such as are unexceptionably due by the proprietor: for it would be against equity as well as against common law, that any man should be protected in the possession of another's property, du­ring the very time the question is depending, whether he be or be not really a creditor. Let such debts then be the only subject of our spe­culation. And the first rule of equity is, That the imputation be so made, as to prevent on both hands irritancies and forfeitures. A second rule is, That, in pari casu, personal debts ought to be paid before those which are secured by infeftment. And thirdly, with respect to both kinds, That sums not bearing interest be extinguished before sums bearing interest.

It is laid down above, that where the legal of an adjudication is in hazard of expiring, equity demands that the rents be wholly ascri­bed to the adjudication. But it may happen in some instances to be more equitable, that the creditor be privileged to apply the rents to the bygone interest due upon his separate debts: and this privilege will be indulged him, provided he renounce the benefit of an expired legal.

The foregoing rules take place between the creditor and debtor. A fourth rule takes place among creditors. The creditor who attains possession by virtue of a preference decreed to him in a competition with co-creditors, cannot apply the rents to any debt but what is pre­ferable before those debts which by the other creditors were produced in the process of competition: for after using his preferable right to exclude others, it would be unjust to apply the rents to any debt which is not effectual against the creditors who are excluded. This would be taking an undue preference upon debts that have no title to a pre­ference.

It will be remarked, that hitherto I have had nothing in view but the possession of a single fund, and by what rules the rents of that fund shall be applied when the possessor hath claims of different kinds. But, with very little variation, the foregoing rules may be applied to the more involved case of different funds. A creditor, for example, upon an entailed estate, has two debts in his person; one contracted by the entailer, upon which an adjudication is led against the en­tailed estate; another contracted by the tenant in tail, which can only affect the rents during his life. It is the interest of the sub­stitutes, that the rents be imputed toward extinction of the entail­er's debt, because they are not liable for the other. The interest of the creditor in possession upon his adjudication is directly oppo­site: [Page 215] it is his interest that the personal debt be first paid, for which he has no security but the rents during his debtor's life. Here e­quity is clearly on the side of the creditor: he is certans de damno evitando, and the substitutes de lucro captando. And this coincides with the second case stated in the foregoing section of indefinite pay­ment.

CHAP. VII. Powers of a court of equity to remedy what is imperfect in common law with respect to legal execution.

THis chapter is naturally divisible into two sections. First, Where the common law is defective. Second, Where it is oppressive or unjust.

SECT. I. Where the common law is defective.

IT is natural to believe, and it holds in fact, that the different execu­tions for payment of debt founded on common law, relate to those cases only which the most frequently occur in practice. Upon a debtor's failing to make payment, his land is attached by an appri­sing, his moveables by poinding, and the debts due him by arrest­ment and forthcoming. But experience discovered many profitable subjects of a peculiar nature, that cannot be brought under any of the foregoing executions. And even with respect to common sub­jects, several peculiar circumstances were discovered to which the exe­cutions mentioned are not applicable. A court of common law, which cannot in any article exceed the bounds of common law, has not power to supply any of these defects. This power is reserved to a court of equity acting upon a principle of justice often above men­tioned, viz. That where-ever there is a right it ought to be made ef­fectual.

This section comprehends many articles. 1st, Subjects that can­not be attached by the executions of common law. 2d, Circum­stances where even common subjects are withdrawn from these exe­cutions. [Page 216] 3d, These executions are in some cases imperfect. 4th, They serve only to make debts effectual, and give no aid to other claims.

ART. I. Subjects that cannot be attached by the executions of common law.

THE common law is defective with respect to a variety of sub­jects that cannot be attached by any of its executions; a reversion, for example, a bond secluding executors, a sum of money with which a disposition of land is burdened, &c. These are all carried by an adjudication invented by the sovereign court. They could not be carried by an apprising in the form of common law: nor can they be carried by an adjudication put in place of an apprising by the act 1672, which by the act itself is confined to land, and to what rights are properly accessory to land, real servitudes, for example, and such like. But this is not all. There are many other rights and privi­leges, to attach which no execution is provided. A debtor has, for example, a well-founded claim for voiding a deed granted by him in his minority greatly to his hurt and lesion: but he is bankrupt, and perversely declines a process, because the benefit must accrue to his creditors: he will neither convey his privilege to them, nor insist on it himself. A reductíon on the head of deathbed is an example of the same kind. There are many others. If a man fail to purge an irritancy, the common law permits not his creditors to purge in his name; and they cannot in their own, unless the privilege be con­veyed to them. A court of equity steps in to supply these defects of common law; and, without necessity either of a voluntary or judicial conveyance, intitles creditors at short-hand to avail them­selves of such privileges. They are impowered to prosecute the same for their own advantage, in the same manner as if the debtor had done them justice by making a conveyance in their favour.

ART. II. Circumstances where even common subjects are withdrawn from these executions.

I GIVE the following instances. First, The apprisings of common law reach land only, of which the property is vested in the debtor. The apprising a minute of sale of land, and a disposition without in­feftment, was introduced by the sovereign court.

[Page 217] Second, A is creditor to B, and B to C. The debt due by C to B is transferred to A by a decree of forthcoming upon an arrestment laid in the hands of C. But what if before A proceed to execution C die, and no person is found who will represent him? In this case there is no place for an arrestment; and yet A ought not to be disap­pointed of his payment. The court of session must supply the defect, by adjudging to A the debt due by C to B.

Third, Execution for payment of debt proceeding upon authority of the judge, doing for the debtor what he himself ought to have done, supposes always a mora on the debtor's part: and a judge therefore cannot warrantably authorise such execution where there is no mora. This holds even in a process for payment. Nor is there any foundation in equity, more than at common law, for a process before the term of payment. Where the debtor is ready to fulfil his engagement at the term covenanted, and is guilty of no failure, ju­stice will not suffer him to be vexed with a process. But with respect to an annuity, or any sum payable at different terms, if the debtor be once in mora to make a process necessary for payment of a part actually due, a decree may not only be pronounced for payment of that part, but also for what will afterward become due, superseding execution till the debtor be in mora. Equity supports this extension of the com­mon law, which is beneficial to the creditor, by easing him of trouble, and not less so to the debtor, by preventing the costs that he would otherwise be subjected to in case of future mora.

From these principles it appears, that a process for poinding the ground before the term of payment, ought not to be sustained, more than a process against the debtor personally for payment. I observe indeed, that a process of mails and duties has been sustained after the legal term of Martinmas, though Candlemas be the customary term of payment *. But the reason of this singularity is, that originally Martinmas was the conventional term of corn-rent, and for that rea­son was established to be the legal term. It crept in by practice to delay payment till Candlemas, in order to give the tenant time to thresh out his corns. And for some centuries this delay was esteem­ed an indulgence only, not a matter of right. But, now that long custom has become law, and that a tenant is understood not to be bound to pay his corn-rent before Candlemas, a court, whether of common law or of equity, will not readily sustain the process before Candlemas.

[Page 218] A process of forthcoming is in a different condition; for being held necessary to complete the right of the arrester, it may in that view proceed before the term of payment of the debt arrested *. The same holds in a process for poinding the ground, where it be­comes necessary to complete a base infeftment by making it public .

There is one general exception to the foregoing rule, That if a debtor be vergens ad inopiam, execution may in equity proceed against him for security. Thus arrestment in security was sustained where the debtor was in declining circumstances . The defendant's testa­tor gave the plantiff L. 1000, to be paid at the age of twenty-one years. The bill suggested, that the defendant wasted the estate; and pray'd he might give security to pay this legacy when due; which was de­creed accordingly .

Fourth, In the common law of England there is one defect that gives access to the most glaring injustice. When a man dies, his real estate is withdrawn from his personal creditors, and his personal estate from his real creditors. The common law affords not to a per­sonal creditor execution against the land of his deceased debtor, nor to a real creditor execution against the moveables; and by this means a man may die in opulent circumstances, and yet many of his credi­tors be forfeited. Whether the court of chancery interposes in this case, I am uncertain. In the following case it cannot, I am certain, fail to interpose; and that is where a debtor, having a near prospect of death, bestows all his money on land, in order to disappoint his personal creditors. The common law affords not a remedy, because the purchasing land is a lawful act; and the common law looks not beyond the act itself. But the court of chancery is not so circumscri­bed. If the guilt appear from circumstances, the court will relieve against the wrong, by decreeing satisfaction to the personal creditors out of the real estate.

Fifth, The common law reacheth no man but while he continues within the bounds of its jurisdiction. If a debtor therefore be in fo­reign parts, a judgement cannot pass against him, because he cannot be cited to appear in court; and execution cannot be issued against his effects without a judgement. This defect, which interrupts the course of justice, is in Scotland remedied by a citation at the market­cross [Page 219] of Edinburgh, pier and shore of Leith, introduced by the sove­reign court, acting upon the foregoing principle, That where-ever there is a right, it ought to be made effectual. In England, a person abroad cannot be cited to appear even in the court of chancery. This court however affords a remedy. It will not warrant a citation a­gainst any person who is not within the jurisdiction of the court: but it will appoint notice to be given to the debtor; and if he appear not in his own defence, the court will out of his effects decree satisfaction to the creditor. Thus, upon an affidavit that the defendant was gone into Holland to avoid the plaintiff's demand against him, and he ha­ving been arrested on an attachment, and a Cepi corpus returned by the sheriff, the court of chancery granted a sequestration of the real and personal estate *. By virtue of the same power supplying the defects of common law, the court of session gives authority to attach moveables in this country belonging to a foreigner, in order to con­vert them into money for payment of the creditor who applies for the attachment. Where a debtor, lurking somewhere in Scotland, can­not be discovered, the court of session makes no difficulty to order him to be cited at that head borough with which he appears to have the greatest connection.

ART. III. These executions are in some cases imperfect.

THE executions of common law, even where there is sufficiency of effects, fall sometimes short of the end proposed by them, viz. that of operating payment. I give for example the English writ Elegit, that which corresponds the nearest to our adjudication. The chief differ­ence is, that an Elegit is a legal security only, and transfers not the property to the creditor. Hence it follows, that though the interest of the debt exceed the rent of the land, the creditor must be satisfied with the possession; and hath no means by the common law to ob­tain payment of his capital, or in place of it to obtain the property of the land. But as in this case the execution is obviously imperfect, hurting the creditor without benefiting the debtor, the court of chan­cery will supply the defect, by ordering the land to be sold for pay­ment of the debt.

ART. IV. They serve only to make debts effectual, and give no aid to o­ther claims.

BESIDE payment of debt, execution is sometimes necessary for ma­king other claims effectual; and here also the common law is imperfect. To remedy this imperfection, adjudications in implement, declarato­ry adjudications, &c. were in Scotland invented by the sovereign court. The following case shews the necessity of a declaratory adjudi­cation.

Sir Robert Munro, debtor to Andrew Drummond banker, assign­ed to John Gordon, ‘"in trust, and for the use of the said Andrew Drummond,"’ certain subjects, and in particular an adjudication led by him against Mackenzie of Redcastle's estate. After Gordon's death, Andrew Drummond, upon this adjudication, as his title, brought a process of mails and duties against the tenants of Red­castle. And the objection was, That the pursuer having no convey­ance from Gordon, has no title to carry on this process. The judges agreed upon the following propositions: 1st, That the trust being gi­ven to John Gordon only, and not to his heirs, was at an end by his death; for there cannot be a trust without a trustee. 2d, That Sir Robert Munro being divested by the trust-deed, the adjudication returns not to him by the death of the trustee. 3d, That though the person for whom the trust is created may in his own name insist in every personal action flowing from the trust, yet none but the trustee can insist in any real action founded on the adjudication; because the trustee only is vested in it. These points being settled, the diffi­culty was, to find out a legal method for establishing the adjudication in the person of Andrew Drummond; and the judges came all into the following opinion, That Andrew Drummond's only method was, to raise a declaratory adjudication, calling all parties that may ap­pear to have interest, viz. the representatives of John Gordon and of Sir Robert, and concluding that the adjudication thus left in medio should be adjudged to him, in order to make effectual the purposes of the trust. This can be done by the court of session supplying defects in common law. An action was competent to Andrew Drummond against John Gordon himself, to denude of the adjudication; and the declaratory adjudication comes in place of that action *.

The common law is defective with respect to those who are in me­ditatione fugae in order to avoid payment of their debts; but a court [Page 221] of equity lends a helping hand, by granting warrant for seizing the debtor, and incarcerating him, unless he find bail for his appearance. But this is not done rashly, barely upon complaint of the creditor. He is bound first to give evidence of his debt. He is bound next to explain the reasons of his suspicion; and if these be found ground­less, or no sufficient cause of suspicion, the warrant will be refused. 3dly, He is bound to give his oath of credulity, that he verily be­lieves his debtor to be in meditatione fugae. But this is not all: he is bound to give security for damages in case of a wrongous detention *. And damages will be awarded accordingly, if upon trial it be found, either that his claim of debt was groundless, or that he fail to prove the facts alledged by him to justify his suspicion of a meditatio fugae.

SECT. II. Where the common law with respect to execution is oppressive or unjust.

EXecution for payment of debt is the operation of the judge or magistrate, interposing in behalf of a creditor to whom the debtor refuses or neglects to do justice. It is the duty of a debtor to convert his effects into money in order to pay his debts; and if he prove re­fractory or be negligent, it is the duty of the judge to interpose, and in his stead to do what he himself ought to have done . Hence it clearly appears, that the judge ought not to authorise execution a­gainst any subject which the debtor himself is not bound to surren­der to his creditors, nor to sell for their behoof. But a court of com­mon law, confined by general rules, regards no circumstance but one singly, viz. Whether the subject belong to the debtor: if it be his property, execution issues; and it is not considered whether the debtor can justly apply this subject for payment of his debts. This in some cases may prove rigorous and unjust. A man who by fraud or other illegal means has acquired the property of a subject, is not bound to convey that subject to his creditors: on the contrary, he is in conscience bound to restore it to the person injured, in order to re­pair the wrong he has done. And in such a case, the law ought not to interpose in behalf of the creditors, but in behalf of the person injured. A court of equity accordingly, correcting the injustice of common law, will refuse its aid to the creditors; who ought not to [Page 222] demand from their debtor what in conscience he ought to restore to another; and will give its aid to that other for recovering a subject of which he was unjustly deprived.

Having thus given a general view of the subject, I proceed to par­ticulars; and shall first state a case, where a merchant, in immediate prospect of bankruptcy, purchases goods and takes delivery, without any view of paying the price. This is a gross cheat in the mer­chant, which binds him in common justice to restore the goods. A court of common law however, regardless of that circumstance, will authorise the bankrupt's creditors to attach these goods for their pay­ment, as being his property. This act of injustice ought to be re­dressed by a court of equity: if the goods be claimed by the vender, the court of equity, barring execution by the creditors, will decree the goods to be restored to him. Thus, a reduction upon the head of the fraud mentioned, was sustained against the bankrupt's credi­tors arresting the subject purchased in the hands of the person to whom it was delivered for behoof of the purchaser *. Mrs Rolland obtained a cessio bonorum anno 1748, and began again to trade as for­merly. In the year 1749 she purchased a cargo of wine from Main and company in Lisbon. She commissioned another cargo from them May 1750, which was arrested at Leith by one of her creditors against whom she had obtained the cessio bonorum. The venders ap­peared in the forthcoming, and were preferred to the cargo for payment of the price, upon the following medium, That it was fraudulent in Mrs Rolland to commission goods from her foreign cor­respondents, when she must have been conscious that they would not have trusted her had they been informed of the cessio .

The same must hold with respect to land, when purchased fraudu­lently: when a creditor commences his adjudication, the vender will be admitted for his interest, and his objection will be sustained in e­quity, That the land ought not to be adjudged to the creditor, but to him the vender, in order to repair the wrong done him. I put another case. In a process of adjudication, a man who had purcha­sed the land by a minute of sale before the adjudication was com­menced, appears for his interest: ought he not to be preferred? His objection against the adjudger appears good in two respects: it would, in the first place, be unjust in the proprietor to grant to [Page 223] his creditor a security upon that subject; and it is therefore unjust in the creditor to demand the security by legal execution: in the next place, it would be unjust in the court to authorise execution against a subject which the debtor is not bound to surrender to his creditors, but, on the contrary, is strictly bound to convey it in terms of the minute of sale.

I illustrate this doctrine by applying it to a subject of some im­portance that has been frequently canvassed in the court of session. A factor having sold his constituent's goods, took the obligation for the price in his own name, without mentioning his constituent. The factor having died bankrupt, the question arose, Whether the sum in this obligation was to be deemed part of his moveable estate affectable by his creditors; or whether he was to be deemed a nomi­nal creditor only, and a trustee for his constituent. The common law, regarding the words only, considers the obligation as belong­ing to the deceased factor: but equity takes under consideration the circumstances of the case, which prove that the obligation was in­tended to be taken factorio nomine, or ought to have been so intend­ed; and that the factor's creditors are in equity barred from attach­ing a subject which he was bound to convey to his constituent. The constituent was accordingly preferred *. A employs B as his factor to sell cloth. B sells on credit, and before the money is paid dies bankrupt. This money shall be paid to A, and not to the admini­strator of B: for a factor is in effect a trustee only for his princi­pal . Hugh Murray, named executor in Sir James Rochead's testa­ment, appointed a factor to act for him. At clearing accounts there was a balance of L. 268 Sterling in the hands of the factor, for which he granted bill to Murray his constituent, and of the same date obtained from him a discharge of the factory. Murray the exe­cutor having died insolvent, the said bill as belonging to him was confirmed by his creditors. Sir James's next of kin claimed the sum in the bill as part of his executry, or as the produce of it. They urged, That though the bill was taken payable to Murray singly, yet the circumstances of the case evince, that it was taken payable to him in quality of executor, and that he was bound to account for it to Sir James's next of kin. They accordingly were preferred . For the same reason, if an executor, instead of receiving payment, take [Page 224] a new bond from a debtor of the deceased with a cautioner, and dis­charge the original bond, this new bond, being a surrogatum in place of the former, will be considered in equity as part of the effects of the deceased; and will not be affectable by the creditors of the execu­tor *. And if the debt be lost by the bankruptcy of the debtor and his cautioner, equity will not charge the executor with it, but will only decree him to assign the security . Boylstoun having given money to one Makelwood to buy a parcel of linen-cloth for him, she bought the goods, but without mentioning her employer. Her cre­ditors having arrested these goods, Boylstoun appeared for his interest. The vender deposed, that he understood Makelwood to be the pur­chaser for her own behoof. She deposed upon the commission from Boylstoun, and that with his money she bought the cloth for his be­hoof. The court, in respect that the goods being sold to Makel­wood for her own behoof became her property, therefore preferred her creditors the arresters . This was acting as a court of common law. The property no doubt vested in Makelwood, because the goods were sold and delivered to her for her own behoof: but that circumstance is far from being decisive in point of equity. The court ought to have considered, that though the transference of property be ruled by the will of the vender, yet that it depends on the will of the purchaser whether to accept delivery for his own behoof or for behoof of another. Here it clearly appeared that Makelwood bought the goods for behoof of Boylstoun, and that, in effect, she was tru­stee only in the subject: the legal right was indeed in her, but the equitable right clearly in Boylstoun. The court ought to have consi­dered further, that Makelwood having laid out Boylstoun's money in purchasing the cloth, was bound in justice to deliver it to Boylstoun; and therefore that he in equity ought to have been preferred to her creditors, even though she had been guilty of making the purchase for her own behoof.

Such is the relief that by a court of equity is afforded to the person who has the equitable claim, while matters are entire and the subject in medio. But now, supposing the execution to be completed, and the property to be transferred to the creditor ignorant of any claim against his debtor, as for example, by a poinding, or by an adjudi­cation with a decree declaring the legal to be expired, what shall be the operation of equity in this case? In answer to this question, it will hold in general, without a single exception, That a bona side [Page 225] purchaser lies not open to a challenge in equity more than at common law; because no man can be deprived of his property except by his consent or his crime.

I proceed to another branch of the subject. Execution both per­sonal and real for payment of debt is afforded by the law of all coun­tries: but execution intended against the refractory only; is sometimes extended beyond the bounds of humanity; and equity is interposed against rigorous creditors, where it can be done by some rule that is applicable to all cases of the kind. Two rules have been discovered, which judges may safely apply without hazard of becoming arbi­trary. The first governs those cases where there is such a peculiar connection between the debtor and creditor, as to make kindness or benevolence their reciprocal duty. In such cases, if the creditor car­ry his execution to extremity, and deprive the▪debtor of bread, he acts in contradiction to his positive duty, and a court of equity will interpose to prevent the wrong. The rule is, That a competency must be left to the debtor to preserve him from indigence. Thus, in the Roman law, parents have beneficium competentiae against their children, and a patron against his client *. A man against his wife . And the same obtains in an actio pro socio . The rule was applied by the court of session to protect a father against his children, February 21. 1745, Bontein of Mildovan, where two former decisions on the other side were over-ruled. The common law, in affording execution a­gainst a debtor, intends not to indulge the rigor of creditors acting in direct contradiction to their duty. But as in making laws it is im­practicable to foresee every limitation, the rule must be made gene­ral, leaving to a court of equity to make exceptions in singular eases.

The other rule is more general, and still more safe in the applica­tion. Personal execution was contrived to force the debtor, by the terror and hardship of personal restraint, to discover his effects, and to do justice to his creditors. But if the squalor carceris, a species of torture, cannot draw a confession of concealed effects, the unhappy prisoner must be held innocent; and upon that supposition, personal restraint is not less inconsistent with justice than with humanity. Hence the foundation of the Cessio bonorum, by which the debtor, af­ter his innocence is proved by the trial of personal restraint, recovers his liberty, upon conveying to his creditors all his effects. And in Scotland this action is known as far back as we have any written law.


WHen a creditor leads an adjudication for a greater sum than is due, it is held that at common law the adjudication is totally void. The reason given is, That an adjudication, being an indivisible right, cannot subsist in part and fall in part. At the same time it is admit­ted, that where the pluris petitio is occasioned by an innocent error, without any mala fides in the creditor, the adjudication ought to be supported as a security for what is justly due, not only in accounting with the debtor, but even in a competition with co-creditors; and that in fact it receives this support from the court of session acting as a court of equity. If this be the true foundation of the practice, it belongs to the present chapter; being an example of equity correcting the rigor of common law with respect to execution.

But that this practice cannot be founded on equity, appears to me clear from the following considerations. In the first place, it is made evident above, that one certans de damno evitando may take advantage of an error committed by another, and that equity prohibits not such advantage to be taken, except where positive gain is made by it *. This rule is applicable to the present case. A creditor demanding his payment in a competition, is certans de damno evitando; and for that reason, he, in order to obtain preference, may lawfully avail himself of any error committed by a co-creditor; and therefore, to support a void adjudication against him, is not agreeable to any rule of equity. In the next place, an adjudication ex facie null, as proceeding with­out citing the debtor, is not supported to any effect whatever either a­gainst a competing creditor, or even against the debtor himself. Nor is there any support given to an adjudication against an apparent heir, when it proceeds without a special charge, or when the lands are not specified in the special charge. This leads me to reflect upon the dif­ference between intrinsic objections, which render the adjudication void and null, and extrinsic objections, which only tend to restrict it. If the pluris petitio be an objection of the former sort, the adjudica­tion, being void totally at common law, cannot be supported in e­quity, more than an adjudication that proceeds without calling the debtor: if it be an objection of the latter sort, there may possibly be a foundation at common law for supporting the adjudication in part, even against a competing creditor, though there be no foundation in equity. The important question then is, To which class this objec­tion belongs?

[Page 227] Intrinsic objections, generally speaking, resolve into an objection of want of power. A judge, unless the debtor be called into court, can­not adjudge his land to his creditor; and if he proceed without that solemnity, he acts ultra vires, and the adjudication is void. The case is the same, where an adjudication is led against an apparent heir, without charging him to enter to the estate of his ancestor. To de­termine what must be the effect of a pluris petitio, an adjudication shall be considered in two lights; first as a judicial sale, and next as a pignus praetorium. If a man voluntarily give off land to his creditor for satisfaction of L. 1000, understood at the time to be due, though the debt be really but L. 900, the sale is not void; nor is it even void­able. The property is fairly transferred to the creditor, of which he cannot be forfeited when he is guilty of no fault; and all that re­mains is, that the quondam creditor, now proprietor, be bound to make good the difference. A judicial sale of land for payment of debt, stands precisely on the same footing: it cannot be voided upon account of a pluris petitio more than a voluntary sale. I illustrate this doctrine, by comparing an adjudication considered as a judicial sale, with a poinding, which is really a judicial sale. A man poinds his debt­or's moveables for payment of L. 100, and the poinding is completed by a transference of these moveables to the creditor, for satisfaction of the debt. It is afterward discovered that L. 90 only was due. Will this void the execution, and restore the goods to the debtor? No person ever dreamed that an innocent pluris petitio can have such effect with respect to a poinding. By the original form of this execution, the debtor's goods were exposed to public auction, and the price was delivered to the creditor in payment pro tanto: the purchaser surely could not be affected by any dispute about the extent of the debt; and the result must be the same where the goods are adjudged to the creditor for want of a purchaser. With regard to all legal effects he is held the purchaser; and if it shall be found that the execution has proceeded for a greater sum than was really due, this circumstance will found a personal action to the quondam debtor, but by no means a rei vindicatio.

But too much is said upon an adjudication considered as a judicial sale; for during the legal at least, it is undoubtedly not a judicial sale, but a pignus praetorium only; and this I have had occasion to de­monstrate above *. If a man shall grant to his creditor real security for L. 1000, when in reality L. 900 is only due, will this pluris petitio void the infeftment? There is not the least pretext for such a conse­quence: [Page 228] the sum secured will indeed be restricted, but the security will stand firm and unshaken. It will be evident at first glance, that the same must be the case of an adjudication led innocently for a greater sum than is due: a pignus praetorium must, with respect to the present point, be precisely of the same nature with a voluntary pledge.

Hence it clearly appears, that the sustaining an adjudication for what is truly due, notwithstanding a pluris petitio, is not an operation of equity, to have place regularly in the present treatise; but truly an operation of common law, which sustains not a pluris petitio to any other effect than to restrict the sum secured to what is truly due, without impinging upon the security. Nor is this a vain dispute; for beside resting the point upon its true foundation, which always tends to instruction, it will be found to have considerable influence in practice. At present, an adjudication, where there is a pluris petitio, is never supported against competing creditors farther than to be a se­curity for the sums due in equity, striking off all penalties: and this practice is right, supposing such adjudication to be null at common law, and to be supported by equity only. But if a pluris petitio have not the effect at common law to void the adjudication, but only to restrict the sum secured, there is no place for striking off the penalties, more than where there is no pluris petitio. Equity indeed interposes to restrict penalties to the damage that the creditor can justly claim by delay of payment; but this holds in all adjudications equally, not excepting those that are free of all objections.

That it is lawful for one certans de damno evitando to take advantage of another's error, is an universal law of nature. That it has place in covenants is shown in a former chapter: and that it should have place among creditors, is evidently agreeable to the rules of justice, which dictates, that if there must be a loss, it ought to rest upon the creditor who hath been guilty of some error, rather than upon the creditor who hath avoided all error. When matters of law are taken in a train, and every case is reduced to some principle, judges seldom err. What occasions so many erroneous judgments, is the being sway'd by particular circumstances in every new case, without ever thinking of recurring to principles or general rules. By this means we are extremely apt to go astray, carrying equity sometimes too far, and sometimes not far enough. Take the following remarkable in­stance. Among the creditors of the York-building company, a num­ber of annuitants for life, infeft for their security, occupied the first place; and next in order came the Duke of Norfolk, infeft for a very [Page 229] large sum. These annuities were frequently bought and sold; and the purchasers, in some instances, instead of demanding a conveyance of the original bonds secured by infeftment, returned these to the company, and took new personal bonds in their place, not imagi­ning that by this method the real security was unhinged. These new bonds being objected to by the Duke of Norfolk, as merely per­sonal, and incapable to compete with his infeftment, the court pro­nounced the following interlocutor: ‘"In respect that the English pur­chasers, ignorant of the laws of Scotland, had no intention to pass from their real security; and that the Duke of Norfolk, who had suffered no prejudice by the error, ought not to take advantage of it; therefore find the said annuitants preferable as if they had ta­ken assignments to the original bonds, instead of delivering them up to the company."’ This was stretching equity beyond all bounds; and in effect judging that a creditor is barred by equity from taking advantage of any error committed by a co-creditor. Up­on a reclaiming petition accordingly the interlocutor was altered, and the Duke of Norfolk preferred *. And this judgement was affirmed in the House of Lords.

CHAP. VIII. Power of a court of equity to inflict punishment, and to mitigate it.

IT is an inviolable rule in justice as well as in expediency, That no man be allow'd to reap the fruits of his fraud, nor to take benefit by any wrong he has done. If, by the tortious act, another be hurt in his rights or privileges, there is ground for reparation at common law; which subject is handled in the beginning of this work: but wrong may be done without impinging upon any right or privilege of another; and such wrongs can only be redressed in a court of equi­ty, by inflicting punishment in proportion to the offence. In slight offences it is satisfied with forfeiting the wrong-doer of his gain: in grosser offences, it not only forseits the gain, but sometimes inslicts a penalty over and above. I begin with cases of the first kind.

A man having two estates, settles them upon A and B, his two sons; and A discovering accidentally a defect in his father's title to the estate [Page 230] settled upon B, acquires a preferable title, and claims that estate from his brother. This palpable transgression, not only of gratitude, but of filial affection, was never committed by any person with a quiet mind; and yet, upon the principles of common law, this odious man must prevail. But a court of equity will interpose, and bar him from taking any benefit from this immoral act, by limiting his claim to the sum laid out upon the purchase.

If a gratuitous disposition be granted with a proviso that the dispo­nee shall perform a certain fact, his acceptance of the disposition sub­jects him at common law to performance. But let us suppose that a man makes a settlement of his estate, burdening his heir with a lega­cy to a certain person named; and that afterward, in a separate deed, he appoints that person to be tutor to his children. Here the legacy being given without any condition, is due at common law whether the legatee undertake the tutory or not. But every one must be sen­sible, that it is an act of ingratitude in the legatee to decline the trust reposed in him, and that he is in conscience bound either to under­take the tutory or to surrender the legacy. If, therefore, he be so un­just as to claim the legacy without undertaking the trust, a court of equity will punish him with the loss of his legacy *. Many examples of the same kind are found in the Roman law. A libertus claiming a legacy left him by his patron, will be removed personali objectione, or exceptione doli, in the language of the Roman law, if he have been guilty of ingratitude to his patron; even where the act of ingratitude is otherwise laudable, as where after the death of the patron the liber­tus informed against him as a smuggler . But the connection be­tween a master and his manumitted slave was so intimate, as to make a step of this kind be reckoned highly ungrateful. Again, a legatee who conceals a testament in order to disappoint the effect of it, is for his ingratitude to the testator removed personali objectione from claim­ing his legacy . I shall add but one other example: ‘"Meminisse autem oportebit, eum, qui testamentum inofficiosum improbe dixit et non obtinuit, id quod in testamento accepit perdere, et id sisco vindicari quasi indigno oblatum. Sed ei demum aufertur quod te­stamento datum est, qui usque ad sententiam judicium, lite impro­ba, perseveraverit: caeterum, si ante sententiam destitit vel decessit, non ei aufertur quod datum est ."’

[Page 231] When a man is thus forfeited of a good claim, the question is, What becomes of the subject claimed? whether doth it accrue to the fisk, as bona vacantia, or is it left with the person against whom the claim is laid? Ulpian, in the text last cited, gives his opinion for the fisk; thinking probably that the legacy becomes a subject with­out a proprietor; and that if no person can claim, it must go to the fisk. Paulus takes the other side: ‘"Amittere id quod testamento meruit, et eum, placuit, qui tutor datus excusavit se a tutela. Sed hoc legatum, quod tutori denegatur, non ad fiscum transfertur, sed filio relinquitur cujus utilitates desertae sunt *."’ And this seems to be the more solid opinion. The legatee is not guilty of any wrong with respect to the crown, but only with respect to the testa­tor and his heir. At the same time the legacy cannot be ranked inter bona vacantia; for the legatee continues proprietor, and is only bar­red from the use of his property by an exception competent to the heir, and to him alone, not against the legatee's right, but only to defend himself against payment. There is an additional reason for this defence against payment, which is, that the heir should have some compensation as a solatium for that distress of mind he must feel, when treated ill by those who owed gratitude to his father or ancestor. In our law accordingly the legacy is allowed to remain with the heir: equity forfeits the wrong-doer, and bestows the lega­cy on the family that is burdened with it.

But supposing both parties equally criminal, Ulpian's opinion up­on that supposition seems to be well founded. I give for an example an obligation granted ob turpem causam, paid and discharged. Here both parties are equally guilty; and hence the maxim in the Roman law▪ Quod in turpi causa potior est conditio possidentis; meaning that the obligee is barred personali objectione from demanding payment; and that if payment be made, the quondam obligor is equally barred from claiming restitution. This maxim may hold between the parties; but not against the fisk.

Stellionate, which consists in aliening to different persons the same subject, is a crime punishable by statute . I sell my land to A by a minute of sale. I sell it a second time to B, who is first infest. If B was ignorant of my bargain with A, his purchase will stand good in equity as well as at common law; because he made a lawful purchase, and had no intention to hurt A. But supposing B, when he made his purchase, to have been in the knowledge of my bargain [Page 232] with A, the question is, What shall be the effect of this circumstance? It can have no effect at common law, which only considers that B is preferable by his first infeftment, and that A is not more hurt than if his bargain had been unknown to B. But it was a tortious act in B to receive from me what I could not lawfully give him; and he is pu­nished for this tortious act by voiding his purchase. Thus, if A, having notice that lands were contracted to be sold to B, purchase these lands, such purchase will be voided in equity *. Again, in a case of two purchasers of the same land in Yorkshire, where the se­cond purchaser, having notice of the first purchase, and that it was not registered, went on and purchased, and got his purchase regi­stered, it was decreed, that the first purchaser was preferable . A, who purchased land though he knew that the vender was but tenant for life, and that the property was in his son, sold the land afterward to B, who had no notice of the settlement. Upon a bill brought by the son after the death of his father against A and B, it was decreed, That as to B, who was purchaser without notice, the bill should be dismissed; but that A should account for the purchase-money he re­ceived, with interest from the death of the tenant for life a.

Next where a man purchases a subject which he knows to be at­tached by inchoated execution. The disponing a subject thus legally attached is not stellionate, because it comes not under the definition of granting double rights. But the disponer is guilty of a moral wrong, in attempting to disappoint his creditor, by withdrawing the subject from his execution, to which wrong the purchaser is accessory if he had notice of the execution; and for that reason, though the purchaser's title be first completed, he will be postponed to the credi­tor in a court of equity, as a punishment upon him. Thus the por­teur of a bill of exchange, having indorsed the same for ready money after it was attached by an arrestment laid in the hands of the ac­cepter, [Page 233] the arrester was preferred to the onerous indorsee, for the rea­son above mentioned, that the latter when he took the indorsation was in the knowledge of the arrestment *. This opens the foundation of a proposition established in practice, That inchoated execution renders the subject litigious. After an adjudication, for example, is commenced, it is wrong in the debtor to sell the land; and it is wrong for any one to purchase.

We proceed to the case of a creditor, who, for his security, takes a conveyance to a subject which he knows was formerly disponed to another for a valuable consideration. What pleads for this creditor's preference, is the necessity of providing for his security when he can­not otherwise obtain payment. But the debtor is undoubtedly crimi­nal in granting the security: he is guilty of stellionate, and the cre­ditor is accessory to the crime. This circumstance ought to bar him in equity from taking the benefit of his real security against the for­mer disponee; for I hold it to be clear in principles, that the motive of preventing loss is in no case a sufficient excuse for doing an unjust act, or for being accessory to it.

Such is the relief that by equity is afforded in favour of the equi­table claim against a purchase made mala fide. Let us now suppose that a purchase is fairly made without notice, and that the property is transferred to the purchaser. I put a strong case, that a man is guilty of stellionate, by selling his land a second time, and that the second purchaser, ignorant of the other, obtains the first infeftment. To make the question of importance, let it also be supposed, that the price is paid by the first purchaser, and that the common author is now bankrupt. Some circumstances at first view seem to weigh a­gainst the second purchaser: The common author is guilty of stellio­nate; and though the second purchaser is not accessory to the crime, he takes however the benefit of an iniquitous deed; which may be reckoned not altogether fair. But upon mature reflection it will be found, that justice militates not against him. By obtaining the first in­feftment he becomes proprietor: and it only remains to be considered, whether there by any ground in equity or justice to forfeit him of his property. Such forfeiture cannot otherwise be just than as a punish­ment for a crime, and therefore it cannot be applied against the in­nocent. Hence an inviolable rule of justice, That the innocent can­not be deprived of their property unless by their own consent. By this rule, the second purchaser first infeft is secure: he is secure by the common law, because he has the first infeftment; and he is [Page 234] secure by equity, because, having purchased bona fide, he is in­nocent.

A is tenant in tail, remainder to his brother B in tail. A not knowing of the entail, makes a settlement on his wife for life as a jointure, without levying a fine, or suffering a recovery. B, who knew of the entail, ingrosses this settlement, but does not mention any thing of the entail; because, as he confessed in his answer, if he had spoke of it, his brother, by a recovery, might have cut off the remainder, and barred him. B, after the brother's death, recovered an ejectment against the widow by force of the entail. She was re­lieved in chancery; and a perpetual injunction granted for this wrong done by B in concealing the entail; for if the entail had been disclo­sed, the settlement would have been made good by a recovery *. The connection which B had with the parties, partly by blood, and part­ly by being employed to ingross the settlement, made it his duty to inform his brother of the entail. And his wilful transgression of this duty was a moral wrong, which justly deprived him of the benefit he projected to himself by concealing the entail.

In a case that has some analogy to the foregoing, the court of ses­sion, as a court of equity, stretched their powers a great way further; further, I am persuaded, than can be justified. An heiress's infeft­ment upon a service to her predecessor, being, after her death, chal­lenged in a reduction as null and void, with the view to disappoint her husband of his curtesy; the court decreed, That the heiress's in­feftment not having been challenged till after her death, it was suf­ficient to support the curtesy, upon the following ground of equity, That had it been challenged during her life, the nullity might and would have been supplied . One is prone to approve this judge­ment; and yet there appear unsurmountable difficulties. For, first, it is not said that the pursuer of the reduction was in the knowledge of these nullities during the life of his predecessor the heiress. 2dly, What if they had been known to him? Can silence alone be consider­ed as criminal, where there is no other connection but that of prede­cessor and successor?

A man, contrary to conscience, is not suffered to make a defence more than to make a claim. A defendant, sued for his rent, deposed that he had no lease: being afterward sued to remove, he produced a current lease. He was barred personali objectione from founding any [Page 235] defence upon it *. Which in effect was forfeiting him of his lease as a punishment for his perjury.

The following are examples where the wrong-doer is not only for­feited of his gain, but subjected over and above to a penalty. A man, by adding a seal to a note, which is sufficient without a seal, was punished with the loss of his security . And accordingly it is a rule, ‘"That a wrongful manner of executing a thing shall void a matter that might have been executed lawfully ."’ A bond being vitiated in the sum, by a superinduction of pounds for merks, was refused to be sustained for the original sum, but was found null in totum . It is not clear in this case what was the ratio decidendi; whether a penalty was intended for falsifying the bond, or whether the court meant only to refuse action upon a bond that was vitiated; which they might well do, because the word pounds was an evident vitiation, by being superinduced over another word that could not be known to be merks but by conjecture. The trying case would have been a reference to the defender's oath, that he really borrowed the sum originally contained in the bond. Would the court of session have refused to sustain this claim, yea or not? They could not have refused upon any other footing than per modum poenae. The court of session denied action upon a bond that was purposely antedated in order to save it from an** inhibition a.

What is the legal effect of bribery in the election of a member to serve in parliament, or of magistrates to serve in boroughs? Com­mon law, with respect to electors, considers only whether the man was intitled to vote, disregarding the motive that induced him to prefer one candidate before another; and therefore this matter comes under a court of equity. And as good government requires a free­dom and independency in voting, a court of equity will set aside e­very [Page 236] vote obtained by bribery; for the candidate who is guilty of bribery will not be permitted to benefit himself by his crime: and even the candidate's own vote is set aside, though not obtained by bribery, as a punishment justly inflicted upon him for corrupting others.

By the common law of England, the wife's adultery did not de­prive her of her dower, even though a divorce had followed *. Up­on this account the act 13 Edward I. cap. 34. was made, enacting, ‘"That if a wife willingly leave her husband, and continue with her adulterer, she shall be barred for ever of her dower, unless her husband willingly, and without coertion of the church, be recon­ciled to her."’ Elisabeth Clement, after living with her husband for three months, deserted him, and lived in open adultery with an­other man, by whom she had a child. Being cited before the kirk­session of Crieff, she confessed her guilt, and suffered public penance in presence of the congregation. After her husband's decease she claimed from his representatives the third part of his moveables, and the terce of his land. Her claim was sustained, notwithstanding her adultery, which was not denied. What moved the plurality of the judges was, that since there was no divorce, the pursuer's adultery did not deprive her of her quality of relict, nor consequently of her legal provisions. This may be right at common law; but it ought to have been considered, that a woman who hath behaved so unduti­fully as a wife, is justly deprived of the privileges of a wife; and that she ought not to have the aid of a court of equity to make these pri­vileges effectual. The English statute rests obviously upon this equi­table foundation; and now that the principles of equity are ripened, the same ought to obtain with us without a statute .

A penalty cannot be extended beyond the words; but it may be limited within the words upon circumstances that infer innocence. Captain Forbes, who had not a fur of land in the shire of Cromarty, was however by act of parliament appointed commissioner of supply for that shire, under the name and designation of ‘"Captain John Forbes of New, factor upon the annexed estate of Cromarty."’ A complaint being exhibited against him for acting as commissioner of supply without having the qualification of L. 100 valued rent, the court judged that he had no title to act. But in respect he had acted many years without challenge qua factor upon the said estate, as for­mer factors had done, and in respect the objection against him was [Page 237] not clear, and in a similar case had been found by the court to be no objection, his bona fides was sustained to free him from the penalty. And yet upon a reclaiming petition this interlocutor was altered, and he was found liable for the penalty. The judges continued in their former opinion, that he acted bona fide; but the plurality thought that they had no power to mitigate the statutory penalty; which was in effect maintaining a very absurd proposition, That a punishment may be inflicted on an innocent person for an error in judgement merely.

The doctrine of bona fides will only hold in statutory penalties; for in a crime against the law of nature bona fides will never be supposed. And with respect to statutory penalties, many of them are enacted in terms so ambiguous, as to make it extremely doubtful in what cases the penalty is incurred. A man happens to mistake the statute; or rather happens to judge differently from what is afterward found to be the meaning in a court of law: is it consistent with the rules of morality, or of common justice, to subject this innocent person to the penalty?

PART II. Powers of a court of equity to remedy the imperfection of common law with respect to matters of justice that are not pecuniary.

THE goods of fortune, such as admit an estimation in money, are the great source of controversy and debate among private persons. And, for that reason, when civil courts were instituted, it was not thought necessary to extend their jurisdiction beyond pecunia­ry matters: the improvement was indeed so great as to be held alto­gether complete. But time unfolded many interesting articles that are not pecuniary. Some of them, making a figure, are distributed among certain courts: a claim of peerage, for example, is deter­mined in the House of Lords; of bearing arms, in the Lyon court; and of being put upon the roll of freeholders, in the court of Barons. Even after this distribution, there remain many rights established by law, and wrongs committed against law, that are not pecuniary; which being left unappropriated, must be determined in a court of equity: for the great principles so often above mentioned, That where there is a right it ought to be made effectual, and where there is a [Page 238] wrong it ought to be repressed, are equally applicable, whether the interest be pecuniary or not pecuniary.

To collect all the rights established and wrongs committed that are not pecuniary, would be an endless labour: it would be use­less as well as endless; for the remedy is not at all intricate. The only question of difficulty is, In what courts such matters are to be tried; and to this question no general answer can be given, o­ther than that the chancery in England and session in Scotland are the proper courts, where there is no peculiar court established for determining the point in controversy. I shall therefore bring this subject within a narrow compass, by giving a few examples, which, for the reason now mentioned, must be determined in the court of session.

The qualifications of a man claiming to be a freeholder, must be judged by the freeholders of the county, convened at their Michael­mas head-court: but the law has provided no remedy for a wrong that may be committed by the freeholders, viz. their forbearing to meet at the Michaelmas head-court, in order to prevent a man from applying to be put upon the roll; and therefore it is incumbent upon the court of session to redress this wrong, by ordering the freeholders to meet under a penalty.

The next case I shall mention is of great importance, because it comprehends an extensive field of law. It is, Whether and in what cases a covenant or promise for behoof of a person who is absent, can be effectual, either to the contractor who exacts the obligation, or to the absent party. I am aware that the interest which arises to the absent from such a promise or covenant, being generally pecu­niary, ought in strict form to have been handled above. But the interest of the person who exacts the obligation for behoof of the absent, is not pecuniary; and the connection of these different inter­ests, arising both from the same promise or covenant, makes it ne­cessary that they should be handled together.

In treating of this nice subject, I cannot hope to give satisfaction to the reader, without first explaining, more minutely than has hi­therto been necessary, the nature of a promise and of a covenant; particularly how far they are binding in conscience, and how far in law. Promises and covenants are provided by nature for obliging us to be useful to others, beyond the bounds of natural duty. They are perfected by a peculiar act of the will, termed consent, expressed exter­nally by words or by apt signs. And they are binding by the very [Page 239] constitution of our nature, the moral sense dictating that every ra­tional promise ought to be performed.

No circumstance shows more conspicuously our destination for so­ciety, than the obligation we are laid under by our very nature to perform our promises and covenants. And to make our engagements the more extensively useful in the social state, we find ourselves bound in conscience, not only to those with whom we contract, but also to others for whose benefit the contract is made, however igno­rant of the favour intended them. If A exact from me a promise to pay L. 100 to B, I stand bound in conscience to perform my promise. It is true, that the promise being made to A, it is in his power to dis­charge the same; and therefore, if he be silent without requiring me to perform, my obligation is in the mean time suspended, wait­ing the result of his will. But as A's death puts an end to his power of relieving me from my obligation, the suspension is thereby remo­ved, and from that moment it becomes my indispensable duty to pay the L. 100 to B.

The binding quality of a promise goes still farther. If I promise A to educate his children after his death, or to build a monument for him, conscience binds me also in this case: which is wisely order­ed by the author of our nature; for a man dies in peace if he can rely upon the promises made to him of fulfilling his will after his death. And though my friend die without a single heir to represent him, I find myself, however, bound in conscience to execute his will. Here then comes out a singular case, an obligor without an obligee. And if it be demanded what compulsion I am under to perform, when a court of law cannot interpose without an obligee to bring an action; the answer is, that I stand bound in conscience, as men were by a covenant before courts of law were instituted. Nor is this case altogether neglected by law. It is extremely probable, that a court of equity would compel me to execute the will of my deceased friend, upon a complaint brought by any of his relations, though they could not state themselves as obligees.

Such are the binding qualities of a promise, and of a covenant, by the law of our nature. We proceed to show how far these qualities are supported by municipal law.

For a long period after courts of law were instituted, covenants and promises were left upon conscience, and were not inforc'd by any action. This in particular was the case among our Saxon ancestors: they did not give an action even upon buying and selling, though the most necessary of all covenants. The Romans were more liberal; [Page 240] and yet they confined their actions to a few covenants that are neces­sary in commerce. At the same time, the action given to inforce these covenants was confined within the narrowest bounds. In the first place, as only pecuniary interest was regarded, no action was gi­ven upon a covenant, unless the plaintiff could show that it tended to his pecuniary interest *. And accordingly an action was denied upon a contract to pay a sum of money to a third person. In the next place, though that person had a pecuniary interest to have the con­tract performed, yet action was not given him; because, in the Ro­man law, no action was given upon a contract but to those who were parties to it . And hence the famous Roman law maxim, Quod alii per alium non acquiritur obligatio.

But by confining the actions upon a covenant within so narrow bounds, many moral rights and obligations are left unsupported by municipal law. The Roman law, in particular, is signally defective in denying support to any right but what terminates upon pecuniary interest. If I exact a promise in favour of a stranger, action for per­formance is deny'd me, it being held that I am not interested to have it performed. Is the case the same where the promise is in favour of a friend, or of a distant relation? Perhaps it may. Let us then sup­pose the promise to be made in favour of my benefactor, or of my child, perhaps my heir. Have not I to whom the promise was made, an interest to exact performance in this case? No person of feeling can answer with confidence in the negative. Intricate questions of this kind lead to a general doctrine founded on human nature, That the accomplishment of every honest purpose is a man's interest. And accordingly, in the affairs of this world, it is far from being uncom­mon to prefer the interest of ambition, of glory, of learning, of friend­ship, to that of money. This doctrine, by refinement of manners, prevails now universally. In the case stated, that I have an equitable interest to exact the promise in favour of my friend, is acknowled­ged; and a court of equity will accordingly afford me an action to compel performance.

But has my friend an action in case I forbear to interpose? He has no action at common law, because the promise was not made to him; and as little has he an action in equity during my life, for the following reason, that it depends on me to whom the promise was made, whether it shall be performed or not. It is in my power to pass from or discharge the promise made to me; and as this power conti­nues [Page 241] for life, the obligor cannot be bound to pay to my friend, while it remains uncertain whether it may not be my will to discharge the obligation *.

I illustrate this doctrine by the following examples. I give to my servant money to be delivered to my friend as a gift, or to my credi­tor as payment. The money continues mine till delivery; and I have it in my choice to take it back, or to compel delivery. The friend or creditor has no action. He has not a real action, because the pro­perty of the money is not transferred to him: he has not a personal action, while it continues in my power to recall the money. If deli­very be delay'd, he will not naturally think of any remedy other than of making his complaint to me. This reasoning appears so clear and satisfactory, that I am forc'd to give up some decisions of the court of session, teaching a very different doctrine. In a minute of sale of land, the purchaser was taken bound to pay the price to a cre­ditor of the vender's: action was sustained to this creditor for pay­ment to him of the price, though the vender interposed, pleading, That the pursuer not being a party to the minute of sale, no right could arise to him from it, and therefore that the mandate or order he the vender gave to the purchaser about payment of the price, might be recalled by him at his pleasure . But the court afterward deter­mined more justly in the following cases, founded on the same prin­ciple. A proprietor having resigned his estate in favour of his second son and his heirs-male, with a power of redemption to his eldest son, and the heirs-male of his body, did thereafter limit the power of re­demption, that it should not be exerted unless with the consent of certain persons named, and impowering those persons to discharge the reversion altogether if they thought proper, which accordingly they did after the father's death. In a declarator at the instance of the se­cond son to ascertain his right to the estate, it was objected by the el­dest, That, by the settlement, he had a jus quaesitum, which could not be taken from him. The discharge was sustained . Sir Donald Baine of Tulloch disponed his estate to his eldest son John; and took from him bonds of provision in name of his younger children. It was found, that these bonds never being delivered, it was in Sir Do­nald's power to discharge or cancel them at pleasure . The like was found 2d July 1755, Hill contra Hill.

[Page 242] To return to the case figured, of a promise exacted by me in fa­vour of an absent person, my death must make a total change, by gi­ving him an action which he had not during my life. For if the ob­ligor, who formerly was bound at my instance to perform his pro­mise, remain still bound in conscience, as is made evident above, it follows, that the person in whose favour the promise was made, must be intitled to demand performance. This will readily be yielded where the paction is for a valuable consideration: if A give a sum to B, for which B promises to A that he will build a house to C, B cannot both retain the money and refuse performance. But the same must follow though the paction be gratuitous; for B is in conscience bound to perform his promise, and if he be bound, C of course must be intitled to demand performance.

From these premises it follows, that the man who thus makes a contract for the benefit of an absent person, may renounce his power of discharging the contract; which renunciation delivered, will instantly intitle that person to demand performance. Such re­nunciation may also be inferred rebus et factis. As for example, where a man dispones his estate to his eldest son, and takes from him a bond of provision to his younger children by name: while the bond is in the father's custody, it continues under his power; but if he deliver the bond to his children, he is understood to renounce his power, which will intitle them to demand payment *.

In the Roman law, a stipulation in favour of the contractor's heirs was early made effectual, by sustaining an action to the heir . By the Roman law, a son might stipulate in favour of his father, and a slave in favour of his master. In the progress of equity this privi­lege was further extended. Where a man stipulated in favour of his daughter, an utilis actio was given to the daughter, which is an action in equity . Yet a daughter's paction in favour of her mo­ther did not avail the mother . A man's stipulation in favour of his grandchildren profited them **. In general, where there was a rei interventus, an utilis actio was given to the absent person who­ever he was ††. But among the Romans a gratuitous stipulation in favour of a stranger never produced an action to the stran­ger ‡‡.

The foregoing doctrine unfolds the nature of fideicommissary settle­ments [Page 243] among the Romans. Of these settlements Justinian* gives a history which I do not comprehend, viz. That they were a con­trivance to elude the law, rendering certain persons incapable of ta­king benefit by a testament; that it being in vain to settle upon such a person an estate by testament, another person was named heir, to whom it was recommended to settle the estate as intended; and that Augustus Caesar gave here a civil action to make the settle­ment effectual. But did Augustus make effectual a settlement execu­ted in defraud of the law? I can hardly be of that opinion. If the law was inexpedient, why not openly rescind it? Augustus was too wise a prince to set thus a public example of eluding law. Justinian, I suspect, did not understand the nature of these settlements. It was a maxim in the Roman law, derived from the nature of property, That a man cannot name an heir to succeed to his heir . Because this could not be done directly, it was attempted indirectly by a fideicom­missary settlement: I name my heir regularly in my testament, and I order him to make a testament in favour of the person I incline should succeed him. Such settlements did at first depend entirely on the faith of the heir in possession, who upon that account was termed Heres fiduciarius: the person appointed to succeed him, termed Heres fideicommissarius, had not an action at common law to compel per­formance; for the fiduciary heir was not bound to him, but to the testator solely. But here was a rei interventus, a subject in the hands of the fiduciary heir, which, by accepting the testament, he bound himself to settle upon the fideicommissary heir; and he is therefore bound in conscience to settle it accordingly. The fideicommissary heir also has an equitable claim to the subject, founded on the will of the testator. These things considered, it appears to me plain, that Au­gustus Caesar, with respect to such settlements, did no more but sup­ply a defect in common law, by appointing an action to be sustained in equity to the fideicommissary heir.

What is just now said serves to explain the nature of trusts, where a subject is vested in a trustee for behoof of a third party, the chil­dren nascituri of a marriage for example. A trust of this nature, ana­logous to a fideicommissary settlement among the Romans, comes not un­der the cognisance of a court of common law; because the person in whose favour the trust is established, not being a party to the agree­ment, has not at common law an action to oblige the trustee to fulfil [Page 244] his engagement: but he hath an action in equity as above mentioned. And hence it is, that in England such trusts must be made effectual in the court of chancery.

Reviewing what is said above, I am in some pain about an ob­jection that will readily occur against it. A legatee, by the common law of the Romans, had an action against the heir for performance; and yet a legatee is not made a party in the testament; nor is the heir, by accepting the testament, bound to him, but to the testator solely. In order to remove this objection, an account must be given of the different kinds of legacies well known in the Roman law; and by putting this subject in its true light, the objection will vanish. In the first place, where a legacy is left of a corpus, the property is trans­ferred to the legatee ipso facto upon the testator's death, conformable to a general rule in law, That subjects are transferred from the dead to the living without necessity of delivery: for after the proprietor's death, there is no person who can make delivery; and if will alone, in this case, have not the effect to transfer property, it never can be transferred from the dead to the living. Upon that account, a legatee of a corpus has no occasion to sue the heir for delivery: he hath a rei vindicatio at common law. The next kind of legacy I shall men­tion, is where a bond for a sum of money is bequeathed directly to Titius. The subject here, as in the former case, vests in the legatee ipso facto upon the testator's death. The legatee has no occasion for an action against the heir; for in quality of creditor he has at common law an action against the debtor for payment. A third sort of legacy is, where the testator burdens his heir to pay a certain sum to Titius. This is the only sort, resembling a fideicommissary settlement, to which the maxim can be applied Quod alii per alium non acquiritur obligatio. But as an action at common law for making other legacies effectual was familiar, the influence of connection, without making nice dis­tinctions, produced an action at common law for this sort also. There­fore all that can be made of this instance, is to prove what will appear in many instances, that common law and equity are not separated by any accurate boundary.

Our entails upon the common law are, in several respects, similar to the Roman sideicommissary settlements; and so far are governed by the principles above established. I give the following instances. A man makes an entail in favour of his son or other relation, dis­poning the estate to him, substituting a certain series of heirs, and reserving his own liferent. The institute, though fettered with irritant and resolutive clauses, is however vested in the full property [Page 245] of the estate *; and the substitutes, for the reason above given, have not an action at common law to oblige the institute to make the entail effectual in their favour. But the institute resembles pre­cisely a Roman heres siduciarius, and is bound in equity to fulfil the will of the entailer, by permitting the substitutes to succeed in their order.

I give a second instance, in order to clear up a celebrated question often disputed in the court of session, viz. Whether an entail, such as that above mentioned, after being completed by infeftment, can be altered or discharged even by the joint deed of the entailer and institute. Our lawyers have generally leaned to the negative. The institute, they urge, fettered by the entail, has not power to alter or discharge; and the will of the entailer, who is not now proprietor, cannot avail. This reasoning is a mere sophism. The full property is vested in every tenant in tail, not less than in him who inherits a fee-simple. A tenant in tail is indeed limited as to the exercise of his powers of property: he must not alien, and he must not alter the or­der of succession. But these, and such like limitations, proceed not from defect of power qua proprietor, but from being bound personally, by acceptance of the entail, not to exercise these powers . This distinction with respect to the present question is of moment. A man cannot exercise any power beyond the nature of his right: such an act is void; and every person is intitled to object to it. But no per­son, other than the obligee, is intitled to object to the transgression of a covenant or personal obligation. The entailer, in the case sta­ted, is the obligee: it is he who took the institute bound to limit as above the exercise of his property; and he therefore has it in his choice, to keep the heir bound, or to release him from his obliga­tion. To be in a condition to grant such release, it is necessary indeed that he be obligee, but it is not necessary that he be pro­prietor.

Hence it appears, that the substitutes have no title while the en­tailer is alive, to restrain the institute from the free use of his proper­ty. They have no claim personally against the institute, who stands bound to the entailer, not to them: nor have they any other ground for an action, seeing the full property of the estate is vested in the in­stitute, and no part in them. In a word, it depends entirely upon the entailer, during his life, whether the entail shall be effectual or [Page 246] not; and while that continues to be his privilege, the substitutes evi­dently can have no claim. I go farther by asserting, that the entailer cannot deprive himself of this privilege, even though he should express­ly renounce it in the deed of entail. The substitutes are not made parties to the entail, and the renunciation, though in their favour, is not made to them. The renunciation is at best but a gratuitous pro­mise, which none are intitled to lay hold of but that very person to whom it is made.

A great change indeed is produced by the entailer's death. There now exists no longer a person who can loose the fetters of the entail. The institute now must for ever be bound by his own deed, restrain­ing him from the free exercise of his property; and as the substitutes, by the entailer's will, have in their order an equitable claim to the e­state, a court of equity will make this claim effectual.

But here a question may naturally arise, Why ought not the privi­lege which the entailer had to discharge the fetters of the entail, de­scend to his heirs? The solid and satisfactory answer is what follows. No right nor privilege descends to an heir but what is pecuniary, and tends to make him locupletior: but the privilege of discharging the fetters of an entail makes not the heir locupletior, and therefore de­scends not to him.

Similar to the rule above explained Quod alii per alium non acquiritur obligatio, is the following rule Quod alii per alium non acquiritur excep­tio. These rules being governed by the same principle, throw light up­on each other; and ought therefore to be handled together. I obtain from a man a promise to discharge his debtor, the question is, What shall be the effect of that promise? The Roman lawyers answer, that I cannot have an action to compel performance, because I have no interest that performance should be made; and that the debtor can­not have an action to compel performance, because he was not a party to the agreement *.

But the Roman writers were certainly guilty of an oversight in not distinguishing here a pactum liberatorium from a pactum obligatorium. For admitting the latter to be limited as above by the common law of the Romans, it can be made evident from the principles of that very law, that the former cannot be so limited, but that it must be effectual to him for whose behoof it is made, whether the person who ob­tained it be connected with him or not. The difference indeed with respect to the present point between these pactions, arises not from a­ny [Page 247] difference in their nature, but from the nature of a court of law. Courts of law, as above mentioned, were originally circumscribed within narrow bounds; and with respect to the Roman courts in par­ticular, many pacta obligatoria were left upon conscience unsupported by these courts. Such a constitution, indeed, confines courts within too narrow limits with respect to their power of doing good; but then it does not lead them to do any wrong. The case is very different with respect to pacta liberatoria: it is unjust in the creditor to demand payment after he has promised, even gratuitously, to discharge the debt; and a court of law would be accessory to this act of injustice, if it sustained action after such a promise. The court therefore must refuse to sustain action; or rather must sustain the pactum liberatorium as a good exception to the action *. And it makes no difference in this case, whether the person who obtained the promise be dead or a­live. For while the promise subsists, it must bar the creditor from claiming payment, and must bar every court from supporting such claim. It is true, indeed, that while the person who obtained the promise is alive, it is in his power to discharge the promise, and con­sequently to intitle the creditor to an action. But till that discharge be obtained, it would be unjust in any court to sustain action.

Some of the Roman writers, sensible that an action for payment ought not to be sustained to a creditor who has passed from his debt, endeavour to make this opinion consistent with the rule Quod alii per alium non acquiritur exceptio, by a subtilty that goes out of sight. They insist, that the debtor cannot found a defence upon a paction to which he was not a party: but they yield, that the paction, though not effectual to the debtro, is effectual against the creditor; and they make it effectual against him, by sustaining to the debtor an exceptio doli .

Upon the same principle, if a third person who is not bound, pay a debt, and take a discharge in name of the debtor, the debtor, though the discharge be not delivered to him, can defend himself by an exceptio doli against the creditor demanding payment from him. For the creditor who has received payment from the third person, can­not in conscience demand a second payment from the debtor. But though he be barred from demanding a second payment, it does not follow that the debt is extinguished. That it remains a subsisting debt will appear from considering, 1mo, That the transaction be­tween the creditor and the third person may be dissolved as it was e­stablished, [Page 248] viz. by mutual consent, and by cancelling the discharge. 2do, The debtor, notwithstanding the erroneous payment, has it in his power to force a discharge from the creditor upon offering him payment: neither of which could happen, were the debt extin­guished.

It only remains to be observed upon this head, that, when a debt is thus paid by a third person, it is in the debtor's choice to refund the money to the third person, or to pay it to the creditor. But if he chuse to defend himself against the creditor by an exceptio doli, which imports his ratification of the payment, the sustaining this exception hath two effects: 1st, It operates to him a legal extinc­tion of the debt; and, next, It intitles the third person to demand the sum from him.


Powers of a court of equity founded on the prin­ciple of utility.

JUSTICE is concerned in two things equally capital; one to make right effectual, and one to redress wrong. With respect to the former, utility coincides with justice: with respect to the latter, utility goes farther than justice. Wrong must be done before justice can interpose; but utility, having a more extensive view, lays down measures that are preventive of wrong. With respect to mea­sures for the positive good of society, and for making men still more happy in a social state, these are reserved to the legislature a. It is not necessary that such extensive powers be trusted with courts of law: the power of making right effectual, of redressing wrong, and of pre­venting mischief, are sufficient.

As the matters contained in this book come within a narrow com­pass, I shall not have occasion for the multiplied subdivisions necessa­ry in the former. A few chapters will exhaust the whole; beginning with those mischiefs or evils that are the most destructive, and de­scending gradually to those of less consequence. I reserve the last place for the power of a court of equity to supply defects in statutes preventive of harm, whether that harm be of more or less import­ance: it is proper that matters so much connected should be handled together.

CHAP. I. Acts contra bonos mores repressed.

INDIVIDUALS in society are linked together by many different rela­tions, that require each of them a suitable behaviour or conduct; and that we should act according to the relations in which we are en­gaged, appears not only proper, but, by the moral sense, is made our duty. The relations in particular that imply subordination, make the corner-stone of government, and ripen men gradually for beha­ving properly in it. The reciprocal duties that arise from the re­lations of parent and child, of preceptor and scholar, of master and servant, of the high and low, of the rich and poor, &c. pave the way to others that follow, and inure us to the duties both of rulers and of subjects. It is for this reason extremely material, that the reciprocal duties arising from subordination be preserved from incroaching up­on each other: to reverse them would reverse the order of nature, and would tend to the dissolution of government. To suffer, for example, a young man to usurp upon his father, and to assume rule over him, has not only the bad tendency now mentioned, but is directly immo­ral, and a breach of duty. A wrong, however, of this nature not be­ing pecuniary, comes not under the jurisdiction of courts of common law, and therefore must be repressed by a court of equity. It might, as a wrong not pecuniary, have found a place in the foregoing book; but as it makes a greater figure by its poisonous and undermining consequences, I chose it as proper for the front of the present book.

A young man in his contract of marriage having consented to be put under interdiction to his father and father-in-law, and to the eldest son of the marriage in case of their failure; and the two first being dead, the court refused to sustain an interdiction where the fa­ther was to be interdicted, and the son interdictor *. A bond was granted by a man to his wife, bearing, ‘"That by his facility he might be misled to dispose of a liferent he had by her, and there­fore binding himself not to dispone without her consent."’ The court refused to sustain this bond with an inhibition upon it, though equivalent to an interdiction; because the wife being sub potestate viri, cannot be curator to any person, and least of all to her hus­band .

[Page 251] Other deeds tending to or arising from depravation of manners, are also rejected by a court of equity. Thus a man who had fallen out with his mother, settled his mansion-house on his brother, and took a bond from him in his sister's name, that he should not permit his mother to come into the house. The bond was decreed to be set aside *.

A bond that appears from its narrative to be granted as a tempta­tion to commit adultery, or any other crime, will be reprobated even at common law. And though the cause be not mentioned in the bond itself, it will be rejected by a court of equity, if it appear from collateral evidence, that such was the cause of granting the bond. But as it is a duty, not a wrong, to provide for a bastard child, or to provide for a woman that the man has robbed of her chastity, a bond or settlement made for that purpose is effectual both in law and equity . The Marquis of Annandale having for two years had criminal conversation with Harris his house-keeper, and having a child by her that afterward died, gave her a bond of L. 4000 penal­ty, conditioned to pay her L. 2000 within three months after his death. The bond being put in suit after the death of the Marquis, a bill was brought to be relieved against the bond, as being given pro turpi causa. The bill was dismissed, the bond being praemium pu­doris. And this decree was affirmed by the house of Lords. A case was cited, where Mrs Ord, a young lady of about fourteen years of age, and intitled to L. 12,000 fortune, was seduced by Sir William Blacket, who settled on her L. 300 yearly for life; and the young la­dy had a decree for the L. 300 as praemium pudicitiae. A like case happened in the exchequer, where a man having debauched a young woman, and intending afterward to trick her, settled on her L. 30 yearly for life out of an estate that was not his; the court decreed him to make the settlement good out of his own estate .

CHAP. II. Acts and covenants in themselves innocent, prohibited in equity, because of their tendency to hurt society.

THE spirit of mutiny shewed itself some time ago among the workmen in the city of London, and rose to such a height as to require the interposition of the legislature. The same spirit broke [Page 252] out afterward among the journeymen-tailors of Edinburgh, who erected themselves into a club or society, keeping in particular a list of the journeymen out of service, under pretext of accommodating the masters more easily with workmen, but in reality to enable them­selves to get new masters if they differed with those they served. When any of them deserted their service, they entered their names in that list, and were immediately again employed, as other masters were under a necessity to take them or to give up their business. The master-tailors suffered many inconveniencies from this combination, which among other hardships produced increase of wages from time to time. The journeymen, for saving time, had always breakfasted in the houses of their master; but upon a concert among them, they all of them deserted their work about nine in the morning, de­claring their resolution to have the hour between nine and ten to themselves in all time coming. This desertion was the more distress­ing, as it was made when the preparing some cloathing for the army required the utmost dispatch. This occasioned a complaint to the Bailies of Edinburgh; who found, ‘"That the defenders, and other journeymen-tailors of Edinburgh, are not intitled to an hour of recess for breakfast; that the wages of a journeyman-tailor in the said city ought not to exceed one shilling per day; and that if any journeyman-tailor, not retained or employed, shall refuse to work when required by a master on the foresaid terms, unless for some sufficient cause to be allowed by the magistrates, the offender shall upon conviction be punished in terms of law."’

This cause being brought to the court of session by advocation, it was thought of sufficient importance for a hearing in presence; and the result was, to approve of the regulations of the magistrates.

The only difficulty was, whether the foresaid regulations did not incroach upon the liberty of the subject. It was admitted that they did in some measure; but then the court was satisfied of their ne­cessity from the following considerations. Arts and manufactures are of two kinds. Those for luxury and for amusement are subject­ed to no rules, because a society may subsist comfortably without them. But those which are necessary to the well-being of society must be subjected to rules; otherwise it may be in the power of a few individuals to do much mischief. If the bakers should refuse to make bread, or the brewers to make ale, or the colliers to provide coals, without being subjected to any control, they would be ma­sters of the lives of the inhabitants. To remedy such an evil, which is of the first magnitude, there must be a power placed some­where; [Page 253] where; and accordingly this power has been long exercised by magi­strates of boroughs and justices of peace, under review of the sove­reign court. The tailors, by forbearing to work, cannot do mis­chief so suddenly; but people must be clad; and if there be no re­medy against the obstinacy of the tailors, they may compel people to submit to the most exorbitant terms.

Another point debated was the propriety of the foregoing regu­lations. Upon which it was observed, that the regulation of the wages is even admitted by the defenders themselves to be proper, because they have acquiesced in it without complaint. And yet if this article be admitted, the other regulations follow of necessary consequence; for it is to no purpose to fix wages without also fixing the number of working hours; and it is to no purpose to fix either, if the defenders have the privilege to work or not at their pleasure. Their demand of a recess between nine and ten, which they chiefly insist for, is extremely inconvenient, because of the time it con­sumes, especially in a wet day, when they must shift and dry them­selves to avoid sullying the new work they have on hand. And as for health, they will never be denied, either by their masters or by the judge, a whole day at times for exercise *.

The journeymen-woolcombers in Aberdeen did in the year 1755 form themselves into a society, exacting entry-money, inflicting pe­nalties, &c. to be under the management of stewards, chosen every month: and though their seeming view was to provide for their poor, yet under that pretext several regulations were made, cramp­ing trade, and tending to make them independent of their employ­ers. A complaint against the society, by the procurator-fiscal of the bailie-court of Aberdeen, being removed to the court of session by advocation, the following interlocutor was pronounced: ‘"The Lords, having considered the plan upon which the society of woolcombers is erected, the regulations at first enacted, though afterward abrogated, and the rules still subsisting, find, That such combina­tions of artificers, whereby they collect money for a common box, inflict penalties, impose oaths, and make other by-laws, are of dangerous tendency, subversive of peace and order, and against law: therefore they prohibit and discharge the defenders, the woolcombers, to continue to act under such combination or socie­ty for the future, or to enter into any suchlike new society or combination, as they shall be answerable: but allow them, at the sight of the magistrates of Aberdeen, to apply the money already [Page 254] collected, for discharging the debts of the society; the remainder to be distributed among the contributors, in proportion to their respective contributions."’

Upon a reclaiming petition, answers, replies, and duplies, the court adhered to the foregoing interlocutor, so far as it finds the so­ciety complained of to be of dangerous tendency, and consequently contra bonos mores; but they remitted to the Ordinary to hear the par­ties, Whether the woolcombers may not be permitted, under proper regulations, to contribute sums for maintaining their poor *.

The journeymen-weavers in the town of Paisley, emboldened by numbers, begun with mobs and riotous proceedings, in order to ob­tain higher wages. But these overt acts having been suppressed by authority of the court of session, they went more cunningly to work, by contriving a kind of society termed the defence-box; and a writ­ten contract was subscribed by more than six hundred of them, con­taining many innocent and plausible articles, in order to cover their views, but chiefly calculated to bind them not to work under a cer­tain rate, and to support out of their periodical contributions those who by insisting on high wages, might not find employment. Se­ven of the subscribers being charged upon the contract for payment of their stipulated contributions, brought a suspension, in which it was found, That this society was an unlawful combination, under the false colour of carrying on trade; and that the contract was void, as contra utilitatem publicam .

In the year 1722 certain regulations were made by the bailies of Leith, concerning the forms of procedure in the administration of justice, and the qualification of practitioners before that court; a­mong other articles providing, ‘"That when the procurators are not under three in number, none shall be allowed to enter except such as have served the clerk or a procurator for the space of three years as an apprentice, and one year at least thereafter; beside un­dergoing a trial by the procurators of court, named by the magi­strates for that effect."’ Upon this article an objection was made against John Young, craving to be entered a procurator, as having served an apprenticeship to an agent of character before the court of session, and demanding to be put upon trial. The bailies having found the petitioner not qualified in terms of the regulations, the cause was advocated; and the court found the said article void, as contra utilitatem publicam, by establishing a monopoly .

CHAP. III. Certain claims in themselves just, and therefore authorised by common law, rendered ineffectual by equity because of their bad tendency.

SOCIETY cannot flourish by pecuniary commerce merely: laying aside benevolence, the social state would neither be commodious nor comfortable. There are several connections formed chiefly by consent, that are in their nature and intendment altogether disinterest­ed; witness the connection between a guardian and his infant, and in general between a trustee and the person for whose behoof the trust is gratuitously undertaken. In this case, to take a premium for executing any article of the trust, may sometimes be extortion, of which in the former book; and being in every case inconsistent with the trustee's duty, will be discountenanced even at common law. Thus a bond for 500 merks granted to an interdictor by one who pur­chased land from the person interdicted, was voided *. If the sale was a rational measure, it was the interdictor's duty to consent to it without a bribe: if the sale was hurtful to the person interdicted, the interdictor's taking a sum for his consent was taking a bribe to betray his trust.

But equity goes farther, and prohibits a trustee from making any profit by his management directly or indirectly. However inno­cent an act of this nature may be in itself, it is poisonous with re­gard to its consequences; for if any opportunity be given for making profit in this manner, a trustee will lose sight of his duty, and soon learn to direct his management chiefly or solely for his own profit. It is solely upon this foundation that a tutor is barred from making profit, by purchasing debts due by his pupil, or rights affecting his estate. The same hazard of mischief concludes also against a trustee who hath a salary, or is paid for his labour. A pactum de quota litis be­tween an advocate and his client, which tends to corrupt the morals of the former, and to make him swerve from his duty, is discouraged in all civilized countries. A bargain of this kind may be fair, and even beneficial to the client: but if indulged in any instance, it must be indulged without reserve; and therefore utility requires that it be [Page 256] totally prohibited. It is for the same reason that a member of the col­lege of justice is prohibited by statute* from purchasing land the property of which is the subject of a law-suit; and that a factor up­on a bankrupt estate is prohibited from purchasing the bankrupt's debts . The same rule is extended to private factors and agents without an act of sederunt: debts due by their constituents purchased by these gentlemen, will be extinguished as purchased for behoof of the constituents, and no claim will be sustained but for the transacted sum.

A bond given to the defendant to procure in marriage to the plain­tiff a young gentlewoman of L. 2000 fortune, was decreed to be gi­ven up; because the match was unequal, the plaintiff being sixty years of age, and having seven children . It was decreed in chan­oery, that a bond of L. 500 given for the procuring a marriage be­tween persons of equal rank and fortune was good: but on an appeal to the house of Lords, the decree was reversed. For such bonds to match-makers, tending to betray and ruin persons of fortune and quality, ought not to be countenanced in equity; and the counte­nancing such bonds would be of evil example to guardians, trustees, servants, and others, who have the care of persons under age . But if the sum be paid to the broker, neither law nor equity furnishes an action against him for restitution. For even supposing this to be a turpis causa, the rule applies, Quod potior est conditio possidentis. And yet action was sustained in the court of chancery for restoring the money **.

CHAP. IV. Forms of the common law dispensed with in order to abridge law-suits.

RETENTION, which is an equitable exception resembling com­pensation, was introduced by the court of session without au­thority of a statute. The statute 1592, authorising compensation, speaks not of an obligation ad factum praestandum, nor of any obliga­tion other than for payment of money; and yet it is hard, that a [Page 257] man should have the authority of a court to make his claim effec­tual against me, while he refuses or delays to satisfy the claim I have against him. So stands, however, the common law; which is cor­rected by a court of equity for the public good. Supposing parties once in court upon any particular affair, the adjusting, without a new process, all matters between them that can at present be adjusted, is undoubtedly beneficial, because it tends to abridge law-suits. This valuable end is attained, by bestowing on the defendant a privilege to with-hold performance from the pursuer, till the pursuer simul et semel perform to him. This privilege is exercised by pleading it as an ex­ception to the pursuer's demand; and the exception, from its nature, is termed Retention.

Compensation, as we have seen, is founded on the principle of e­quity. And it is also supported by that of utility; because the finish­ing two counter-claims in the same process tends to lessen the number of law-suits. Retention, again, is founded solely on utility, being calculated for no other end but to prevent the multiplication of law-suits. The expedience of retention in this respect, has gained it ad­mittance in all civilized nations. In the English court of chancery particularly, it is a well-known exception, of which I give the follow­ing instance. ‘"If the plaintiff mortgage his estate to the defendant, and afterward borrow money from the defendant upon bond, the redemption ought not to take place unless the bonded debt be paid as well as the mortgage-money *."’

From what is said, every sort of obligation affords, as it would appear, a ground for retention, provided the term of performance be come, and no just cause for with-holding performance. It shall only be added, that for the reasons given with respect to compensation , retention cannot be pleaded against an assignee for a valuable consi­deration.

A directed B to pay to C what sums C should want. C according­ly received two sums (among others) from B, for which he gave re­ceipts as by the order of A. A and C came to account, which being stated, they gave mutual releases. But the two sums not being en­tered in the books of A, were not accounted for by C. B not having received any allowance from A for the two sums, prefers his bill a­gainst C to have the money returned to him. C confessed the receipts, but insisted, that the money was delivered to him by the order of A, and that B being a hand only had no claim. But the court decreed, [Page 258] That the plaintiff had a fair claim against the defendant to avoid cir­cuity of suits: for otherwise it would turn the plaintiff on A, and A again on the defendant in equity to set aside the release, and to have an allowance of these sums. And the decree was affirmed in the House of Lords *.

By the common law of this land, a creditor introduced into posses­sion upon a wadset, upon an assignment to rents, or upon an adjudi­cation, is bound to surrender the possession as soon as the debt is paid by the rents levied. He obtained possession for a certain purpose, viz. to levy the rents for his payment; and therefore, when that pur­pose is fulfilled, his right is at an end, and he is not any longer in­titled to possess. He perhaps is creditor in other debts that may in­title him to apprehend possession de novo: but these will not, at com­mon law, impower him to detain the possession one moment after the debt that was the title of his possession is paid. He must first surren­der possession; and, if he think proper, he may thereafter apply for legal authority to enter again into possession for payment of these se­parate debts. A court of equity views matters in a different light. The debtor's claim to have his land restored to him is certainly not founded on utility, when such claim can serve no other end but to multiply expence, by forcing the creditor to take out execution upon the separate debt, in order to be repossessed. A maxim in the Roman law concludes in this case with its utmost force, Frustra petis quod mox es restituturus; and this maxim accordingly furnisheth to the creditor in possession a defence which is a species of retention. There is, indeed, the same reason for sustaining the exception of retention in this case, that there is in personal debts. The foundation of the exception is in both cases the same, viz. the principle of utility, which is interposed to prevent the multiplying of law-suits, prejudicial to one of the par­ties at least, and beneficial to neither.

But this relief against the strictness of common law, ought not to be confined to real debts which intitle the creditor to possess. It may sometimes happen, as demonstrated above , to be more beneficial to the debtor or to the creditor, without hurting either, that the rents be applied for payment even of a personal debt, than for payment of the debt which is the title of possession. And where-ever the rents may be applied for payment of a personal debt, the creditor must be privileged to hold the possession till that debt be paid.

CHAP. V. Bona fide payment.

IN the course of money-transactions, and the payment of debt, it may happen by mistake that payment is made, not to the person who is really the creditor, but to one understood to be the creditor. However invincible the error may be, payment made to any but to the creditor avails not at common law; because none but the creditor can discharge the debt. What remedy can be afforded by a court of equity where a debt is bona fide paid to another than the true creditor, is the subject of the present chapter.

It is an observation verified by long experience, That no circum­stance tends more to the advancement of commerce, than a free cir­culation of the goods of fortune from hand to hand. In this island, commercial law is so much improved, as that land, moveables, debts, have all of them a free and expedite currency. A bond for borrowed money, in particular, descends to heirs, and is readily transferrable to assignees voluntary or judicial. But that circumstance, beneficial to commerce, proves in many instances hurtful to debtors. Payment made to any but the creditor, frees not the debtor at common law: and yet circumstances may be often such, as to make it impracticable for the debtor to discover that the person who produceth a title, fair in appearance, is not the creditor. Here is a case extremely nice in point of equity. On the one hand, if bona fide payment be not sus­tained, the hardship will be great upon the debtor, who must pay a second time to the true creditor. On the other hand, if the exception of bona fide payment be sustained to protect the debtor from a second payment, the creditor will be often forfeited of his debt without his fault. Here the scales hang even, and equity preponderates not on either side. But the principle of utility affords relief to the debtor, and exerts all its weight in his scale: for if a debtor were not secure by voluntary payment, no man would venture to pay a shilling by any authority less than that of the sovereign court; and how ruinous to credit this would prove, must be obvious without taking a moment for reflection.

To bring this matter nearer the eye, we shall first suppose that the putative creditor proceeds to legal execution, and in that manner re­covers payment. Payment thus made by authority of law, must undoubtedly protect the debtor from a second payment. And this [Page 260] leads to another case, That the debtor, to prevent legal execution which threatens him, makes payment voluntarily. The payment here is made indeed without compulsion, because there is no actual execution: but then it is not made without authority; for, by the supposition, execution is awarded, and nothing prevents it but pay­ment. The third case is of a clear bond, upon which execution must be obtained as soon as demanded; and the debtor pays, knowing of no defence. Why ought not he also to be secure in this case? That he be secure, is beneficial to creditors as well as to debtors, because otherwise there can be no free commerce of debts. This exception then of bona fide payment, is supported by the principle of utility in two different respects: it is beneficial to creditors, by encouraging debtors to make prompt payment; and by removing from them the pretext of insisting upon anxious and scrupulous defences, which, under the co­lour of paying securely, would often be laid hold of to delay pay­ment: it is beneficial to debtors, who can pay with safety without be­ing obliged to suffer execution.

But here the true creditor is not left without a remedy. The sum received by the putative creditor is in his hand sine justa causa, and he is answerable for it to the true creditor. In this view, the operation of bona fide payment is only to substitute one debtor for another, which may as often be beneficial to the true creditor, as detrimental.

An executor under a revoked will, being ignorant of the revocation, pays legacies; and the revocation is afterward proved: he shall be allowed these legacies *.

If, in making payment to the putative creditor, the debtor obtain an ease, the exception of bona fide payment will be sustained for that sum only which was really paid . This rule is founded on equity; for here the true creditor is certans de damno evitando, and the debtor de lucro captando.

CHAP. VI. Interposition of a court of equity in favour even of a single person to prevent mischief.

THIS subject is so fully explained in the introduction as to require very little addition. It exhibits a court of equity in a new light; showing that this court, acting upon the principle of utility, is not [Page 261] confined to what is properly termed jurisdiction, but, in order to pre­vent mischief even to a single person, can assume magisterial powers. It is by such power that the court of session names factors to manage the estates of those who are in foreign parts, and of infants who are destitute of tutors. The authority interposed for selling the land-estate of a person under age, is properly of the same nature: for the inqui­ry made about the debts, and about the rationality of a sale, though in the form of a process, is an expiscation merely.

By the Roman law, a sale made by a tutor of his pupil's land­estate without authority of a judge, was void ipso jure, as ultra vires. This seems not to have been followed in Scotland. Maitland re­ports a case *, where it was decreed, that such a sale sine decreto is not void, but that it is good if profitable to the infant. And I must ap­prove this decision as agreeable to principles and the nature of the thing. The interposition of a court beforehand, is not to bestow new powers upon a tutor, but to certify the necessity of a sale, in order to encourage purchasers by rendering them secure. But if, without authority of a court, a purchaser be found who pays a full price, and if the sale be necessary, where can the objection lie? So far indeed a court may justly go, as to presume lesion from a sale sine decreto, until the tutor justify the sale as rational, and profitable to the infant.

CHAP. VII. Statutes preventive of wrong or mischief extended by a court of equity.

STATUTES, as hinted above , that have utility for their object, are of two kinds: First, Statutes directed for promoting the posi­tive good of the whole society, or of some part: Second, Statutes di­rected to prevent mischief only. Defective statutes of the latter kind may be supplied by a court of equity; because, independent of a sta­tute, it is impowered to prevent mischief. But that court has not, more than a court of common law, any power to supply defective statutes of the former kind; because it belongs to the legislature only to make laws or regulations for promoting good positively.

[Page 262] Usury is in itself innocent, but to prevent oppression it is prohi­bited by statute. Gaming is prohibited by statute; as also the pur­chasing law-suits by members of the college of justice. These in themselves are not unjust; but they tend to corrupt the morals, and prove often ruinous to individuals. Such statutes, preventive of wrong and mischief, may be extended by a court of equity, in order to complete the remedy intended by the legislature. It is chiefly with relation to statutes of this kind that Bacon delivers an opinion with great elegance: ‘"Bonum publicum insigne rapit ad se casus o­missos. Quamobrem, quando lex aliqua reipublicae commoda notabiliter et majorem in modum intuetur et procurat, interpreta­tio ejus extensiva esto et amplians †."’

In this class, as appears to me, our statute 1617 introducing the positive prescription ought to be placed. For it has not, like the Ro­man usucapio, the penal effect of forfeiting a proprietor for his negli­gence, and of transferring his property to another: it is calculated, on the contrary, to secure every man in his land-property, by deny­ing action upon old obsolete claims, which, by the common law, are perpetual. A claim may be very old and yet very just; and it is not therefore wrong in the common law to sustain such a claim. But then the consequences ought to be considered: if a claim be sustained beyond forty or fifty years because it may be just, every claim must be sustained however old; and experience discovered, that this opens a wide door to falsehood. To prevent wrong and mischief, it was necessary that land-property should by lapse of time be secured against all claims; and as with respect to antiquated claims there is no infallible criterion to distinguish good from bad, it was necessary to bar them altogether by the lump. The passage quoted from Bacon is appli­cable in the strictest manner to this statute, considered in the light now mentioned; and it hath accordingly been extended in order to complete the remedy afforded by the legislature. To secure land-pro­perty against obsolete claims, it must be qualified, that the proprietor has possessed peaceably forty years by virtue of a charter and seisin. So says the statute; and if the statute be taken strictly, no property is protected from obsolete claims but where infeftment is the title of possession. But the court of session, preferring the end to the means, and consulting its own powers as a court of equity to prevent mis­chief, secures by prescription every subject possessed upon a good title, a right to tithes for example, a long lease of land, or of tithes, which are titles that admit not infeftment 347.

[Page 263] As the foregoing statute was made to secure land from obsolete and unjust claims, so the statutes 1469 and 1474, introducing the ne­gative prescription of obligations, were made to secure individuals personally from claims of the same kind. As these statutes all of them are preventive of mischief, they may all of them be extended by a court of equity to complete the remedy. The statutes accordingly now mentioned have been extended to mutual contracts, to decrees in foro contradictorio, and to reductions of deeds granted on death­bed a.

Considering the instances above mentioned, it must, I imagine, oc­casion some surprise, to find a proposition cherished by our lawyers, That correctory statutes, as they are termed, ought never to be ex­tended. We have already seen this proposition contradicted, not only by solid principles, but even by the court of session in many instan­ces. With relation to statutes, in particular, correctory of injustice or of wrong, no man can seriously doubt that a court of equity is impowered to extend such statutes, in order to complete the remedy prescribed by the legislature: and the same is equally clear with re­lation to statutes supplying defects in common law. As to the sta­tutes under consideration, calculated to prevent mischief, it might, I own, have once been more doubtful whether these could be extend­ed; for of all the powers assumed by a court of equity, it is pro­bable that the power of preventing mischief was the latest. But in England this power has been long established in the court of chance­ry, and experience has proved it to be a salutary power. Why then should we stop short in the middle of our progress? No other excuse can be given for such hesitation, but that our law, considered as a regular system, is of a much later date than that of England.

The foregoing are instances where the court of session, without hesitation, have supplied defects in statutes made to prevent mischief. But to show how desultory and fluctuating the practice of the court is in that particular, I shall confine myself to a single case on the o­ther side, which makes a figure in our law. In the transmission of land-property, by succession as well as by sale, we require infeft­ment. [Page 264] An heir however, without completing his right by infeft­ment, is intitled to continue the possession of his ancestor *. In this situation, behaving as proprietor, he contracts debts, and unless he be reduced to the necessity of borrowing large sums, those he deals with are seldom so scrupulous as to inquire into his title. By the common law however, the debtor's death before infeftment is, as to the real estate, a forfeiture of all his personal creditors. This is a mischief which well deserved the interposition of the legislature; and a remedy was provided by act 24. parl. 1695, enacting, ‘"That if an apparent heir have been in possession for three years, the next heir, who by service or adjudication connects with the predecessor last infeft, shall be liable to the apparent heir's debts in valorem of the heritage."’ It cannot be doubted, that a complete remedy was here intended, to give a reasonable security that those who deal with heirs-apparent shall obtain payment of their debts. And yet, if we regard the words only, the remedy is imperfect; for what if the next heir-apparent, purposely to evade the statute, shall content him­self with the possession and enjoyment of the heritage, without ma­king up titles by service or adjudication? Upon this strict construc­tion of the statute, the creditors will reap little benefit. For if the debts be considerable, no heir will subject himself by completing his titles, when he is admitted to the possession, and has the full enjoy­ment of the rents, without any title. Formerly the heir-apparent in possession had no interest to forbear the completing his titles: his ne­glect must have been ascribed to indolence or to inattention. But if the remedy intended by the statute reach not the heir-apparent in possession, a strong motive of interest arises to make him forbear the completing his titles. In this view, the statute, if confined to the words, must appear extremely absurd. Here is indeed a remedy provided for a legal wrong: but what sort of remedy? A remedy so strangely contrived, as to depend entirely upon that very person a­gainst whom it is directed: for it is always in the power of the heir, by satisfying himself with a possessory title, to disappoint the credi­tors of their remedy; and as by this possessory title he has the full en­joyment of the estate, he will always disappoint them, if he regard his own interest. The legislature in this case undoubtedly intended a complete remedy; and the consideration now mentioned, peculiar to this case, is a strong additional motive for the interposition of a court of equity to fulfil the intendment of the legislature. And yet, misled by the notion that correctory laws ought not to be extended, [Page 265] the court of session hath constantly denied action to the creditors of an heir who dies in apparency, against the next heir in possession who has not completed his title to the estate by service or adjudication.

There is another palpable defect in this statute which ought also to be supplied in equity. A predecessor may have a good title to his e­state without being infeft; and yet regarding the words only, the heir-apparent is not liable upon this statute, unless where he connects with a predecessor infeft. I put the following case. A purchases an estate, takes a disposition with procuratory and precept, but dies without being seised. B, his heir-apparent, enters into possession without making up titles, and contracts debt after being in possession three years. After his death, C, the next heir-apparent, makes up his titles by a general service. This case comes not under the words of the statute; but as it undoubtedly comes under the mischief which the legislature intended to remedy, it is the duty of a court of equity to complete the remedy.

In one case the court, from a due sense of their equitable powers, ventured upon a remedy where this statute was defective. Some acres and houses having been disponed for a valuable consideration by an heir-apparent three years in possession, the next heir-apparent foresee­ing that he would be barred by the act 1695 from objecting to this alienation if he should enter heir, bethought himself of a different method. He sold the subject for twenty guineas, and granted bond to the purchaser, who led an adjudication against the estate, and up­on that title brought a reduction of the disposition in his own name. But the court decreed, that this case fell under the meaning of the statute, though not under the words; and therefore that the pur­suer was barred from challenging the disposition *.

What if the heir forbearing to enter, in order to evade the act 1695, shall contract debt to the value of the subject, upon which ad­judications are led contra hereditatem jacentem? Here the estate is ap­plied for payment of the heir's debts, and consequently converted to his use as much as if he were entered. Would the court of session give no relief in this case to the creditors of the interjected heir-ap­parent? Would they suffer the purpose of the statute to be so grossly eluded?

A word or two upon statutes to which the power of a court of e­quity reacheth not in any degree. Monopolies or personal privileges cannot be extended by a court of equity ; because that court may [Page 266] prevent mischief, but has no power to do any act for enriching any person, or making him locupletior, as termed in the Roman law. As to penal statutes again, it is clear in the first place, that to augment a penalty beyond that directed by a statute is acting in contradiction to the statute, which enacts that precise penalty and not a greater. In the next place, to extend the penalty in a statute to a case not men­tioned, is a power not trusted with any court, because the trust is not necessary. A penalty is generally added to a statutory prohibition. A court of equity may extend the prohibition to similar cases, and e­ven punish the transgression of their own prohibition *; but it is a prerogative peculiar to the legislature to annex beforehand a penal sanction to a prohibition.


THE principle of justice, though more extensive in its influence than that of utility, is in its nature more simple: it never looks beyond the parties engaged in the suit. The principle of utility, on the contrary, not only regards the parties engaged in the suit, but also the society in general; and comprehends many circumstances concerning both. Being thus in its nature and application more in­tricate than justice, I thought it not amiss to close this book with a few thoughts upon it. In the introduction there was occasion to hint, that utility co-operates sometimes with justice, and in opposi­tion prevails over it. This proposition is verified in the first book by several instances, which I propose to bring under one view, in order to give a distinct notion of the co-operation and opposition of these principles.

It is scarce necessary to be premised, that in opposing private utility to justice, the latter ought always to prevail. A man is not bound to prosecute what is beneficial to him: he is not even bound to de­mand reparation for wrong done him. But he is strictly bound to do his duty; and for that reason he himself must be conscious, that in opposition to duty interest ought to have no weight. It is beside of great importance to society that justice have a free course; and accor­dingly public utility unites with justice to inforce right against inter­est. Private interest therefore, or private utility, may, in the present speculation, be laid entirely aside; and it is barely mentioned to pro­vent mistakes.

[Page 267] Another limitation is necessary. It is not every sort of public uti­lity that can outbalance justice: it is that sort only which is preventive of mischief affecting the whole or bulk of the society. To prevent mischief to an individual coincides with private interest; and as to public utility, so far as it concerns a positive additional good to the society, it is a subject that comes not within the sphere of a court of equity.

Confining our view then to public utility directed to prevent mis­chief, I venture to lay down the following proposition, That where­ever it is at variance with justice, a court of equity ought not to in­force the latter, nor suffer it to be inforced by a court of common law. In order to evince this proposition, which I shall endeavour to do by induction, the proper method will be, to give a table of cases, beginning with those where the two principles are in strict u­nion, and proceeding orderly to those where they are in declared op­position.

In general, these principles for the most part are good friends. The great end of establishing a court of equity is, to have justice accurate­ly distributed, even in the most delicate circumstances; and nothing contributes more to peace and union in society than that this great end be steadily prosecuted and completely fulfilled. As this branch therefore of utility is inseparable from justice, it will not be necessary hereafter to make any express mention of it. It must be always un­derstood when we talk of justice.

We proceed to other branches of utility, which are not so strictly at­tached to justice, but sometimes coincide with it, and sometimes rise in opposition. One of these is the benefit accruing to the society by abridging law-suits. In the case of compensation, utility unites with justice to make compensation a strong plea in every court of equity. Retention again depends entirely upon the utility of abridging law-suits. But if it have no support from justice, neither is it opposed by justice.

In the case of bona fide payment the utility is different. It is the benefit accruing to a mercantile society by giving a free course to money-transactions, which would be obstructed if debtors, by run­ning any risk in making payment, were encouraged to state anxious or frivolous defences. The exception of bona fide payment is sustain­ed upon no other ground but that of preventing the mischief here described. Justice weighs equally on both sides; for if the exception be not sustained, the honest debtor bears the hazard of losing his [Page 268] money: if it be sustained, the hazard is transferred upon the cre­ditor.

But there are cases where justice and utility take opposite sides: which, in particular, is the case where a transaction extremely unequal is occasioned by error. Here the justice of affording relief is obvious: but then a transaction by putting an end to strife is a favourite of law; and it is against the interest of the public to weigh a transaction in the nice balance of grains and scruples. A man, by care and atten­tion in making a transaction, may avoid error; but the bad conse­quences of opening transactions upon every ground of equity cannot be avoided. Justice therefore must in this case yield to utility; and a transaction will be supported against errors that may be sufficient to overturn other agreements. I give another example. In the Roman law laesio ultra duplum was sustained to void a bargain: but in Britain we refuse to listen to equity in this case; for if complaints of inequa­lity were indulged, law-suits would be multiplied, to the great detri­ment of commerce.

If the discouraging law-suits be sufficient to with-hold relief in equity, the hazard of making judges arbitrary is a much stronger motive for with-holding that relief. However clear a just claim or defence may be, a court of equity ought not to interpose, unless the case can be brought under a general rule. No sort of oppression is more intolerable than what is done under the colour of law: and for that reason, judges ought to be confined to general rules, the only method invented to prevent legal oppression. Here the refusing to do justice to a single person makes no figure, when set in opposition to an important interest that concerns deeply the whole society. And in­deed it seems to follow, from the very nature of a court of equity, that it ought to adhere to general rules, even at the expence of for­bearing to do justice. It is the declared purpose of a court of equity, to promote the good of society by an accurate distribution of justice: but the means ought to be subordinate to the end; and therefore, if in any case justice cannot be done but by using means that tend to the hurt of society, a court of equity ought not to interpose. To be active in such a case, involves the absurdity of preferring the means to the end.

Thus we may gather by induction, that in every case where it is the interest of the public to with-hold justice from an individual, it becomes the duty of a court of equity in that circumstance, not only to abstain from inforcing the just claim or defence, but also to prevent [Page 269] its being inforced at common law. But the influence of public utili­ty stops here, and never authorises a court of equity to inforce any po­sitive act of injustice *. For, first, I cannot discover that it ever can be the interest of the public to require the doing an unjust action. And, next, if even self-preservation will not justify any wrong done by a private person , much less will public utility, supposing it in­terested, be able to justify any wrong done or inforced by a court of e­quity. It is inconsistent with the very constitution of this court to do injustice, or to inforce it.


HITHERTO our plan has been, to set forth the different powers of a court of equity; and to illustrate these powers by apt examples selected from various subjects where they could be best found. Our plan in the present book is, to show the applica­tion of these powers to various subjects, handled each as an entire whole: and the subjects chosen are such as cannot easily be split into parts to be distributed under the different heads formerly explained. Beside, as the various powers of a court of equity have been sufficiently illustrated, as well as the principles on which they are founded, I thought it would be pleasant as well as instructive to vary the me­thod, by connecting together these powers and principles in their co­operation upon particular subjects. Thus the distribution of the whole appears in the following light: the first and second books may be considered as theoretical, containing the powers of a court of equi­ty, and the principles on which these powers are founded; the pre­sent book is practical, containing the application of these powers and principles to several important subjects.

CHAP. I. What equity rules with respect to rents levied upon an er­roneous title of property.

WITH respect to land possessed upon an erroneous title of proper­ty, it is a rule established in the Roman law, and among mo­dern nations, That the true proprietor asserting his right to the land, has not a claim for the rents levied by the bona fide possessor, and con­sumed. But though this subject is handled at large both by the Ro­man lawyers, and by their commentators, we are left in the dark as to the reason of the rule, and of the principle upon which it is found­ed. Perhaps it was thought, that the proprietor has not an action at common law for the value of the product consumed by the bona fide possessor; or perhaps, that the action, as rigorous and unjust, is ren­dered ineffectual by equity. And indeed, as no title of property can absolutely be relied on, sad would be the condition of land-holders, [Page 271] could they be made liable forty years back, for rents which they had reason to believe their own, and which without scruple they bestow'd upon the necessaries and conveniencies of life.

Though, in all views, the bona fide possessor is secure against restitu­tion, it is however of importance to ascertain the precise principle that affords him security; for upon that preliminary point several im­portant questions depend. We shall therefore without further pre­face enter upon the inquiry.

The possessor, as observed, must, for his security, be indebted ei­ther to the common law or to equity. If common law afford to the proprietor a claim for the value of his rents consumed, it must be e­quity correcting the rigor of common law that protects the possessor from this claim: but if the proprietor have not a claim at common law, the possessor has no occasion for equity. The matter then is re­solvable into the following question, Whether there be or be not a claim at common law. And to this question, which is subtile, we must lend attention.

Searching for materials to reason upon, what first occurs is the dif­ference between natural and industrial fruits. The former, owing their existence not to man but to the land solely, will readily be thought an accessory that must follow the property of the land. The latter will be viewed in a different light; for industrial fruits owe their existence to labour and industry, more than to the land. Up­on this very circumstance does Justinian found the right of the bona fide possessor: ‘"Si quis a non domino quem dominum esse credide­rit, bona fide fundum emerit, vel ex donatione, aliave qualibet justa causa, aeque bona fide acceperit; naturalirationi placuit, fructus, quos percepit, ejus esse pro cultura et cura. Et ideo, si postea dominus supervenerit, et fundum vindicet, de fructibus ab eo consumptis agere non potest *."’ And upon this foundation Pomponius pro­nounces, that the bona fide possessor acquires right to the industrial fruits only: ‘"Fructus percipiendo, uxor vel vir, ex re donata, suos facit: illos tamen quos suis operis adquisierit, veluti serendo. Nam si pomum decerpserit, vel ex sylva cedit, non fit ejus: sicuti nec cujuslibet bonae fidei possessoris, quia non ex facto ejus fructus nascitur ."’ Paulus goes farther. He admits not any distinction between natural and industrial fruits; but is positive, that both kinds equally, as soon as separated from the ground, belong to the bona fide possessor: ‘"Bonae fidei emptor non dubie percipiendo fructus, etiam [Page 272] ex aliena re, suos interim facit, non tantum eos qui diligentia et opera ejus pervenerunt, sed omnes; quia quod ad fructus attinet, loco domini pene est. Denique etiam, priusquam percipiat, statim ubi a solo separati sunt, bonae fidei emptoris fiunt *."’

But now, after drawing so nigh in appearance to a conclusion, we stumble upon an unexpected obstruction. Is the foregoing doctrine consistent with the principle Quod satum solo cedit solo? If corns while growing make part of the ground, and consequently belong to the proprietor of the ground, the act of separation merely, cannot have the effect to transfer the property from him to another. And if this hold as to fruits that are industrial, the argument concludes with greater force if possible as to natural fruits. What then shall be thought of the opinions delivered above by the Roman writers? Their authority is great I confess, and yet no authority will justify us in de­viating from clear principles. The fruits, industrial as well as natu­ral, after separation as well as before, belong to the proprietor of the land. He has undoubtedly an action at common law to vindicate the fruits while extant: and if so, has he not also a claim for the va­lue after consumption?

However prone we may be to answer the foregoing question in the affirmative, let us however suspend our judgement till the question be fairly canvassed. It is indeed clear, that the fruits while extant, the percepti as well as pendentes, belong to the proprietor of the land, and can be claimed by a rei vindicatio a. But is it equally clear, that the bona fide possessor who consumes the fruits is liable for their value? Upon what medium is this claim founded? The fruits are indeed consumed by the possessor, and the proprietor is thereby de­prived of his property: but it cannot be subsumed, that he is depri­ved of it by the fault of the possessor; for, by the supposition, the possessor was in bona fide to consume, and was not guilty of the slight­est fault. Let us endeavour to gather light from a similar case. A man buys a horse bona side from one who is not proprietor: upon ur­gent business he makes a very severe journey, and the horse, unable to support the fatigue, dies. Is the purchaser answerable for the value of the horse? There is no principle of law upon which that claim can be founded. In general, a proprietor deprived of his goods by the fact of another, cannot claim the value upon any footing but that of reparation: but it is a rule established both in the law of nature [Page 273] and in municipal law, That a man free from fault or blame, is not liable to repair any hurt done by him: one in all respects innocent, is not subjected to reparation more than to punishment *. And thus it comes out clear, that there is no action at common law a­gainst the bona fide possessor for the value of the fruits he consumes: such an action must resolve into a claim of damages, to which the innocent cannot be subjected.

And if bona fides protect the possessor when he himself consumes the fruits, it will equally protect his tenants. A man who takes a lease from one who is held to be proprietor of the land, is in bona fide as well as his landlord. The fruits, therefore, that the tenant consumes or disposes of, will not subject him to a claim of damages; and if the proprietor have no claim for their value, he can as little claim the rent paid for them.

As the common law affords not an action in this case, equity is still more averse to such action. The proprietor no doubt is a loser; and, which is a more material circumstance, what he loses is converted to the use of the bona fide possessor. But then, though the proprietor be a loser, the bona fide possessor is not a gainer: the fruits or rents are consumed upon living, and not a vestige of them remains a. Thus equity rules even where the claim is brought recently. But where it is brought at a distance of time, for the rents of many years, against a possessor who regularly consumed his annual income, and had no reason to dread or suspect a claim, the hardship is so great, and the claim itself in these circumstances so unjust, that were it founded on common law, the bona fide possessor would undoubtedly be relieved against it by equity.

What is now said suggests another case. Suppose the bona fide pos­sessor to be locupletior by the rents he has levied. It is in most cir­cumstances difficult to ascertain this point: but circumstances may be supposed to make it clear. The rents, for example, are assigned by the bona fide possessor for payment of his proper debts: the creditors continue in possession till their claims are wholly extinguished; and then the true proprietor discovering his right, enters upon the stage. Here it can be qualified, that the bona side possessor is locupletior, and that he has gained precisely the amount of the debts now satisfied and paid. Admitting then the fact, that the bona side possessor is en­riched by his possession, the question is, Whether this circumstance [Page 274] will support any action against him? None at common law, for the reason above given, that there is nothing to found an action of repa­ration or damages in this case, more than where the rents are consu­med upon living. But that equity affords an action is clear; for the maxim Quod nemo debet locupletari aliena jactura is applicable to this case in the strictest sense: the effects of the proprietor are converted to the use of the bona fide possessor: what is lost by the one, is gained by the other; and therefore, equity lays hold of that gain to make up the loss. This point is so evidently founded on equity, that even af­ter repeated instances of wandering from justice in other points, I cannot help testifying some surprise, that the celebrated Vinnius, not to mention Voet and other commentators, should reject the proprie­tor's claim even in this case. And I am the more surprised, that in this opinion they make a step not less bold than uncommon, which is, to desert their guides who pass for being infallible, I mean the Roman writers, who justly maintain that the bona fide possessor is liable quatenus locupletior. ‘"Consuluit senatus bonae fidei possessori­bus, ne in totum damno adficiantur, sed in id duntaxat teneantur in quo locupletiores facti sunt. Quemcunque igitur sumptum fe­cerint ex hereditate, si quid dilapidaverunt, perdiderunt, dum re sua se abuti putant, non praestabunt: nec si donaverint, locuple­tiores facti videbuntur, quamvis ad remunerandum sibi aliquem na­turaliter obligaverunt *."’

When the bona fide possessor becomes locupletior by extreme frugality and parsimony, it may be more doubtful whether a claim can lie a­gainst him. It must appear hard, that his starving himself and his family, or his extraordinary anxiety to lay up a stock for his children, should subject him to a claim which his prodigality would free him from; and yet I cannot see that this consideration will prevent the o­peration of the maxim Quod nemo debet locupletari aliena jactura.

The foregoing disquisition is not only curious but useful. Among other things, it serves to determine an important question, viz. Whe­ther bona fides, which relieves the possessor from accounting for the rents, will at the same time prevent the imputation of these rents toward extinction of a real debt belonging to him. A man, for example, who has claims upon an estate by infeftments of annualrent, adjudi­cations, or such like, enters into possession upon a title of property which he believes to be unexceptionable. When the lameness of his title is discovered, his bona fides will secure him from accounting for the rents to the true proprietor; but will it also preserve his debts [Page 275] alive, and save them from being extinguished by his possession of the rents? The answer to this question depends upon the point discussed above. If the proprietor have, at common law though not in equity, a claim for the value of the rents consumed by the bona fide possessor, this value, as appears to me, must go in extinction of the debts af­fecting the subject. For when the proprietor, instead of demanding the money to be paid to himself, insists only, that it shall be apply'd to extinguish the real incumbrances; equity interposeth not against this demand, which is neither rigorous nor unjust: and if equity in­terpose not, the extinction must take place. If, on the other hand, there be no claim at common law for the value of the rents consumed, I cannot perceive any foundation for extinguishing the real debts be­longing to the possessor; unless the following proposition can be main­tained, That the very act of levying the rents extinguishes ipso facto these debts, without necessity of applying to a judge for his interposi­tion. This proposition holds true where a real debt is the title for le­vying the rents; as, for example, where they are levied upon a poind­ing of the ground, or upon an adjudication completed by a decree of mails and duties. But it cannot hold in the case under consideration; because, by the very supposition, the rents are levied upon a title of property, and not by virtue of the real debts.

I illustrate this point by stating the following case. An adjud­ger infeft enters into possession of the land adjudged after the legal is expired, considering his adjudication to be a right of property. After many years possession, the person against whom the adjudication was led, or his heir, claims the property, urging a defect in the adjudi­cation which prevented expiration of the legal. It is decreed accor­dingly, that the adjudication never became a right of property, but that the legal is still current. Here it comes out in fact, that the land has all along been possessed upon the title of a real debt, extin­guishable by levying the rents, though by the possessor understood to be a title of property. I think, that even in this case the levying the rents will not extinguish the debt. I give my reason. To give vo­luntary payment its full effect, two acts must concur, viz. delivery by the debtor in order to extinguish the debt, and acceptance by the creditor as payment. In legal payment by execution there must also be two acts; first, levying the rent in order to be apply'd for pay­ment of the debt; and, next, the creditor's receiving the same as pay­ment: neither of which acts are found in the case under considera­tion. The rent is levied, not by virtue of execution in order to extin­guish a debt, but upon a title of property: neither is the rent received [Page 276] by a creditor as payment, but by a man who conceives himself to be proprietor.

The foregoing reasoning, which because of its intricacy is drawn out to a considerable length, may, when thoroughly apprehended, be brought within a narrow compass. A bona fide possessor who le­vies and consumes the rents, is not liable to account to the proprie­tor whose rents they were, nor is subjected to any action whether in law or in equity; and for that reason his possession of the rents will not have the effect to extinguish any debt in his person affecting the subject. But if it can be specified that he is locupletior by his posses­sion, that circumstance affords to the proprietor a claim against him in equity; of which the proprietor, at his option, may either de­mand payment, or insist that the sum be applied for extinguishing the debts upon the subject.

In these conclusions I have been forc'd to differ from the establish­ed practice of the court of session, which indeed protects the bona fide possessor from payment; but always holds the possession as sufficient to extinguish the real debts belonging to the possessor. But I have had the less reluctance in differing from the established practice, be­ing sensible that this matter has not been examined with all the ac­curacy of which it is susceptible. In particular, we are not told up­on what ground the practice is founded: and if it be founded on the supposition that the proprietor has a legal claim for his rents le­vied by the bona fide possessor, I have clearly proved this to be a sup­position merely without any foundation.

Another important question has a near analogy to that now dis­cussed. If the bona fide possessor have made considerable improve­ments upon the subject, by which its value is increased, will his claim be sustained as far as the proprietor is benefited by these im­provements, or will it be compensated by the rents he has levied? Keeping in view what is said upon the foregoing question, one will readily answer, that the proprietor, having no claim for the rents le­vied and consumed by the bona fide possessor, has no ground upon which to plead compensation: But upon a more narrow inspection, we perceive, that this question depends upon a different principle. It is a maxim suggested by nature, That the expence laid out in procu­ring any benefit is a preferable burden upon the profits made there­by; and in particular, that reparations and meliorations bestowed upon a house or upon land ought to be defray'd out of the rents. Governed by this maxim, we sustain no claim against the proprietor for meliorations, if the expence exceed not the rents levied by the [Page 277] bona fide possessor. It is not properly compensation; for the proprie­tor has no claim to found a compensation upon. The claim is reject­ed upon a different medium: the rents while extant belong to the pro­prietor of the ground: these rents are not consumed, but are bestow­ed upon meliorations; and the bona fide possessor who thus employs the proprietor's money, and not a farthing of his own, has no claim either in law or in equity. Such accordingly is the determination of Papinian, the most solid of all the Roman writers: ‘"Sumptus in praedium, quod alienum esse apparuit, a bona fide possessore facti, neque ab eo qui praedium donavit, neque a domino peti possunt; verum, exceptione doli posita, per officium judicis aequitatis ratione servantur; scilicet si fructuum ante litem contestatam perceptorum summam excedunt. Etenim, admissa compensatione, supersluum sumptum, meliore praedio facto, dominus restituere cogitur *."’

CHAP. II. Powers of a court of equity with respect to a conventional penalty.

CONVENTIONAL penalties are of two kinds. One is, where a person bound ad factum praestandum agrees, in case of failure, to pay a sum of money: the other is, where a sum is stipulated to in­force performance of any obligation.

The first kind is explained by Justinian in the following words. ‘"Non solum res in stipulatum deduci possunt, sed etiam facta; ut si stipulemur aliquid fieri vel non fieri. Et in hujusmodi stipulationi­bus optimum erit poenam subjicere, ne quantitas stipulationis in incerto sit, ac necesse sit actori probare quod ejus intersit. Itaque si quis, ut fiat aliquid, stipuletur; ita adjici poena debet, Si ita fac­tum non erit, tunc poenae nomine decem aureos dare spondes ."’ A stipu­lation of this kind constitutes properly an alternative obligation, put­ting it in the option of the obligor to perform the fact, or in place of it to pay the penal sum. And it must be observed, that this sum is improperly termed a penalty; for it is in reality a liquidation of the damages that the obligee suffers by want of performance; or rather a lump sum agreed on in place of damages. A sum thus stipulated, having nothing penal in its nature, is due in equity as well as at common law. Thus land being verbally set to a tenant, under the [Page 278] following condition, That if he entered not he should pay a year's rent; the whole penalty was decreed, because the tenant entered not *.

The other kind of penalty is, where, beside performance of what is stipulated in the contract, the obligor is taken bound, if he fail of punctual performance, to pay a sum over and above: as, for ex­ample, the debtor becomes bound to pay the sum borrowed at a term specified; and, in order to inforce punctual performance, he becomes bound, if he suffer the term to elapse without payment, to pay an additional sum. Here, in case of failure, both articles must be fulfilled, the additional article as well as that which is principal; and therefore the additional article is more properly a penalty than that first mentioned, where the obligation is alternative.

With respect to a penalty of this kind, it is clear, that a good de­fence against performance of what is principal, will relieve also from the penalty: but if there be no good defence, the penalty is due by agreement as soon as there is a failure in the performance; and may be demanded at common law by an action ex contractu. Voet accor­dingly says, ‘"Committitur haec poenae stipulatio, si principalis obli­gatio, quae stipulatione penali firmata erat, impleta non sit, cum de jure implenda fuisset ."’ And to prove this position he gives the authority of Paulus in the following words: ‘"Ad diem sub poe­na pecunia promissa, et ante diem mortuo promissore, committe­tur poena, licet non sit hereditas ejus adita ."’ For here the death of the debtor before the term of payment afforded no legal defence to his heir; nor ought the creditor to suffer by that accident, cui de jure implenda erat obligatio, in the foregoing words of Voet.

Whether and how far equity will mitigate a penalty of this kind, comes next to be considered. What will at first occur is, to distin­guish culpable failure from what is innocent, and to afford relief in the latter case only. But a more accurate inspection will show this to be an Utopian thought, unsuited to practice. The extreme diffi­culty of making good this distinction by evidence, would render judges arbitrary, without attaining that refinement of justice which is intended by the distinction: and therefore it becomes necessary in practice to give relief to all without distinction, unless where it can be made clearly appear that the failure is culpable.

The next point is, How far equity will relieve. When an obligor who performs late, demands to be relieved from the penal sum, justice requires that the obligee be indemnified of what damage he has sus­tained [Page 279] by the delay; according to a rule in equity formerly mention­ed, which the English lawyers express thus, ‘"He that demands e­quity must give equity."’ And hence in this island it is the con­stant practice to decree the penalty to the extent of the damage; and this the obligee is intitled to, however innocent or involuntary the delay may have been. A debtor, for example, disappoined of mo­ney, fails to make payment at the term covenanted, which draws up­on him a storm of execution: however innocent, he must pay the penalty restricted to the expence of execution; because the conven­tional penalty so far is not a punishment upon the debtor, but repa­ration to the creditor; and so far it is due in equity as well as at common law. Take another example. A debtor suspends his bond bona fide; and the creditor, after discussing the suspension, is satisfied to restrict his penalty to the costs of suit: the penalty thus restricted is not a penal claim, and therefore is due in equity as well as at common law. This example may be viewed in a dif­ferent light: there must be error, at least, in every case where the obligor refuses to fulfil a just claim, however innocent he may be; and equity relieves from the effect of error, so far only as the person who takes the advantage of the error is in lucro captando, not where he is in damno evitando *.

An English double bond is an example of the second kind of con­ventional penalties. It was introduced originally to evade the com­mon law of England, which prohibits the taking interest for money: and though that prohibition be no longer in force, the double bond continues in practice; being converted into a different use, viz. to compel punctual payment of the money lent. The penalty accor­dingly is due at common law if the covenanted term be allowed to elapse without payment: and this penal stipulation is in the practice of England governed by the rule of equity above laid down: ‘"After the day of payment the double sum becomes the legal debt; and there is no remedy against such penalty but by application to a court of equity, which relieves on payment of principal, interest, and costs ."’

In our bonds for payment of money, a clause generally is added binding the debtor ‘"to pay a fifth part more of liquidate expences in case of failzie."’ This clause is commonly treated as intending a penalty of the kind last mentioned, contrived to inforce perform­ance: but I think improperly; for the words plainly import a liqui­dation of that damage which the creditor may sustain by the debtor's [Page 280] failing to pay at the term covenanted. It is of the nature of a trans­action de re futura, being a lump sum in place of all that can be demanded in case of future damage by the said failure. Lord Stair, talking of the court of session as a court of equity, considers the clause in the foregoing light: ‘"The court of session (says our au­thor) modifies exorbitant penalties in bonds and contracts, even though they bear the name of liquidate expences with consent of parties, which necessitous debtors yield to. These the Lords retrench to the real expence and damage of the parties. Yet these clauses have this effect, that the Lords take slender proba­tion of the true expence, and do not consider whether it be neces­sary or not, provided it exceed not the sum agreed on; whereas in other cases they allow no expence but what is necessary or profit­able *."’

Considering the foregoing clause as a transaction de re futura, it may be doubted, whether in any case it ought to be mitigated. On the one hand, whatever be the extent of the damage, the creditor by a­greement can demand no more but the liquidated sum; and there­fore, on the other, it may be thought that he is intitled to this sum even where it exceeds his damage: Cujus incommodum, ejus debet esse com­modum. This argument is conclusive, supposing the transaction fair and equal, stipulating no greater sum than the damages ordinarily amount to. But it ought to be considered, that formerly money­lenders in Scotland were in condition to give law to those who bor­row. Hence exorbitant sums as liquidate expences, which, being ri­gorous and oppressive, ought to be mitigated in equity. Upon that account, the lump sum for damages has been generally considered as a penalty; which in effect it is when exorbitant, and as such it shall hereafter be treated of.

The only doubtful point touching this penalty, is to determine at what time and by what means it is incurred. If we adhere to the words of the clause, it is incurred by failzie in general, and consequent­ly by every sort of failzie. But many good lawyers, moved with the hardship of subjecting an innocent person to a penalty, hold, that the penalty is not incurred except in the case of culpable failzie, and that this must be understood the meaning of the clause. They maintain accordingly, that when a debtor, in place of payment, enters into a law-suit, he is not liable for any part of the penalty, though restricted to the costs of suit, if he have probabilis causa litigandi. They do not advert, as above laid down, that a conventional penalty restricted to [Page 281] the expence of execution or costs of suit, ceases in that case to be pe­nal; and that the creditor, when such claim is made effectual to him, draws nothing but what he hath actually expended. But as this is a point of great importance in practice, it merits a deliberate discussion; to which I proceed.

In order to give satisfaction upon this subject, I must state a pre­liminary point, viz. What claim there is for costs of suit abstracting from a conventional penalty. A man who opposes a just claim, acts against law: but is he therefore bound to repair the damage he occa­sions to the pursuer? If he be litigious in any degree, he is bound; for though it may require a crime to subject a man to punishment, the slightest voluntary wrong or fault is a sufficient foundation for damages, even at common law. But it is a rule in municipal law, derived from the law of nature, ‘"That a man free from fault or blame is not liable to repair any hurt he occasions *;"’ and there­fore there is no foundation even at common law for subjecting to the costs of suit, or to any damage, a defendant who is in bona fide. Equity is still more averse from making an innocent person in any case liable to damages; for, considering that man is a fallible being, his case would be deplorable were he bound to repair all the loss he may occasion by an involuntary wrong. What then shall we say of the act 144. parl. 1592, appointing, ‘"That damage, interest, and expences of plea, be admitted by all judges, and li­quidated in the decree, whether condemnator or absolvitor?"’ If this regulation could ever be just, it must have been among a plain people, governed by a few simple rules of law, supposed to be univer­sally known. Law, in its present state, is too intricate to admit a pre­sumption that every person who goes against it is in mala fide; and yet, unless mala fides be presumed in every case, the regulation cannot be justified.

Taking it now for granted, that, abstracting from a paction, costs of suit cannot be claimed, otherwise than upon the medium of liti­giosity, I proceed in my inquiry. And I begin with examining, whether it be lawful to stipulate damages upon the obligor's failure to perform, not even excepting an innocent failure. To bring this question near the eye, I put a plain case. A man is willing to lend his money at common interest: but insists, that if he be put to any expence in recovering payment, the borrower, who occasions this ex­pence, shall be liable for it; and the borrower agrees to take the mo­ney [Page 282] upon that condition. Is this paction one of those oppressive pro­visions, against which the debtor will be relieved in equity? I can­not discover any injustice in the paction, nor any oppression. A pac­tion of this nature, so far from being unjust or oppressive, appears to be a natural consequence from the law against usury. Where a man is permitted to take what interest he can for his money, a high interest may be held sufficient to counterbalance what may be expended in recovering payment: but where the creditor is li­mited to a certain rate of interest, it seems intended by the legislature, that he should in all events be secure of that interest, without being forc'd to expend it, and perhaps more, upon recovering the very sum he lent. Where-ever this happens, the creditor, instead of the common rate of interest, receives no interest at all; and must be satisfied to receive back a sum, that, in effect, has all along been barren.

An inquiry here into what is lawful, smooths the road in our pre­sent progress. If the paction above mentioned be lawful, we cannot hesitate in presuming that every creditor will take advantage of it; and consequently, that this paction must be implied in the penal clause contained in our bonds of borrowed money. To confine the meaning of this penal clause to a culpable failure, is truly to de­stroy the effect of it altogether; for a culpable failure subjects the debtor to damages at common law, independent of the clause. Nor can we doubt that the meaning of the clause is as above set forth, when we see the same meaning given to a penal clause in England and in old Rome.

That the penalty in our bonds of borrowed money is incurred e­ven by an innocent failure, appears, not only from the presumed will of the parties, but also from the inveterate practice of the court of session in mitigating these penalties, which would be against e­quity supposing the failure to be criminal or culpable. I urge, in the next place, that the failure of a debtor to pay at the term cove­nanted, must in dubio be held innocent till the contrary be proved. This is a legal privilege, common to a debtor with the rest of man­kind. Hence it necessarily follows, that if the clause under conside­ration be confined to culpable failure, a charge of horning cannot pass for the penalty, till it be proved in a process, that the failure is culpable. Here is a vexing dilemma: if culpable failure be the mean­ing of the clause, the practice of charging for the penalty as soon as the term of payment is past, must be given up as irregular and ille­gal, though acquiesced in for centuries without the least opposition: [Page 283] on the other hand, if it be admitted, as it must be, that this practice is agreeable to law, it follows necessarily, that a conventional penalty is incurred by innocent as well as by culpable failure.

Add the following observation. Where a bond stipulating interest after the term of payment is suspended, and the letters found order­ly proceeded, after an intricate and doubtful litigation of many years, no lawyer ever dreamed that the suspender's bona fides will relieve him from interest. And yet it will puzzle the ablest lawyer to say, where the difference lies in this case between interest and costs of suit: if a plausible defence prevent the stipulated penalty from being in­curred, it ought also to prevent the stipulated interest from being incurred. Both are due ex contractu upon the failure of payment; and if there be any reason for barring innocent failure in the paction for the penalty, there is the same reason for barring it in the paction for interest. If there be a difference, the penalty restricted to costs of suit is the more favourable claim: it is money out of the creditor's pocket; it is damnum datum; whereas the claim for interest is only lucrum cessans. With respect to the English double bond, this argu­ment concludes beyond the possibility of cavil; the penal stipulation being the only foundation for claiming interest, as well as for claim­ing costs.

Upon the whole, it shall now be taken for granted, that in a bond of borrowed money the penal sum is incurred by innocent as well as by culpable failure. In the latter case, supposing the culpa clearly proved, equity pleads not for a mitigation: in the former, equity requires a mitigation, as far as the stipulation is truly penal; that is, as far as the penal sum exceeds the damage occasioned to the creditor by the delay of payment. This mitigation arises neces­sarily from the rule above mentioned, ‘"He that demands equity must give equity."’ And hence, in innocent failure, the practice is to mitigate the penalty to the costs of suit, and to what other damage is clearly ascertained. This, at the same time, by putting the creditor in the same condition as if punctual payment had been made, fulfils all the intention he could fairly have in stipulating a penalty.

CHAP. III. What effect, with respect to heirs, has the death of the obligee or legatee before or after the term of payment?

IF the obligee's heirs be named in the obligation, they will succeed whether he die before or after the term of payment, because such is the will of parties. The present question relates to obliga­tions where the obligee's heirs are not named. Such obligations by the common law transmit not to heirs; because the common law re­gards what is said to be the only proof of will: but equity is not so peremptory nor superficial. It considers, that in human affairs er­rors and omissions are frequent, and that words are not always to be absolutely relied on: it holds indeed words to be the best evi­dence of will, but not to be the only evidence. If therefore any suspicion lie, that the will is not precisely what is expressed, every rational circumstance is laid hold of to ascertain, with all the accu­racy possible, what really was the will of the granter, or of the con­tracters *.

With respect to this point, the cause of the obligation is one capi­tal circumstance. A gratuitous obligation has no cause but the will merely of the granter; and therefore an heir cannot claim upon such obligation, unless he can show the will of the granter to be in his fa­vour; which will be no easy task if he be not named in the deed. Thus a gratuitous promise to give a sum to Titius at a day certain, without mentioning heirs, will be ineffectual if Titius die before the term of payment: the heir of Titius has no claim either at common law or in equity.

But what if Titius, surviving the term, die without obtaining payment? His heir has no claim at common law, because he is not named in the obligation; but he has a good claim in equity: with respect to the obligor, it being his duty to make payment at the term stipulated, justice will not suffer him to make profit by his ob­stinacy or neglect: with respect to the obligee, being intitled to the sum at the term stipulated, he must not be forfeited by the failure of the obligor. Equity therefore affords an action to his heir for payment, [Page 285] which relieves from the loss sustained at common law by the failure of payment.

On the other hand, an obligation for a valuable consideration is in its nature perpetual, and ought in all events to be fulfilled. Such must be presumed the intention of parties, in every engagement that is not purely an exercise of benevolence. An obligor accordingly who has received a valuable consideration, must, in all events, per­form his part of the engagement, unless the contrary be stipulated: the obligee's death, in particular, before the term of payment, will not relieve the obligor, though the obligee's heirs be not named in the deed. The common law, it is true, affords not to the heir an action in this case more than where the obligation is gratuitous: but equi­ty, supplying the defects of common law, affords an action, in or­der to fulfil the rules of justice, which will not suffer the valuable consideration to remain with the obligor without performing the e­quivalent pactioned. Hence, with respect to the point under consi­deration, an obligation for a valuable consideration is directly oppo­site to that which is gratuitous. In the former, the heir takes unless he be expressly excluded: in the latter, the heir takes not unless he be expressly included. Thus a bond for borrowed money, though taken in the creditor's name solely, will go to his heir, even where he dies before the term of payment.

Men are bound to educate their children till they be able to gain a livelihood for themselves; and any further provision is understood to be gratuitous. Hence a bond of provision to children is deemed a gra­tuitous deed; and for that reason, if the children die before the term of payment, equity gives no aid to their heirs. If heirs be named in the bond, they have right at common law: if not named, neither equity nor common law gives them right. Thus, in a contract of marriage certain provisions being allotted to the children, the portions of the males payable at their age of twenty-one years, and of the females at eighteen, without mentioning heirs or assignees; the assignees and creditors of some of the children who died before the term of pay­ment, were judged to have no right *. I cannot so readily acquiesce in the following decision, where a bond of provision payable to a daughter at her age of fourteen, and to her heirs executors and as­signees, was voided by her death before the term of payment . The addition of heirs executors and assignees▪ was thought to regard the child's death after the term of payment; and not to be an in­dication [Page 286] of the granter's will that the bond should be effectual though the child died before the term of payment. The clause, I admit, is capable of that restricted meaning: but I can find no cause for this restriction; and in all cases it is safest to give words their natural import, unless it be made extremely clear that the granter's meaning was different. And accordingly Chalmers having settled his estate upon his nephew, with the burden of a sum certain to Isabel Inglis, wife of David Millar, and to her heirs executors, or assignees, payable year and day after his death, with interest af­ter the term of payment; and Isabel having died before Chalmers, leaving a son who survived him; the sum was decreed to that son as a conditional institute *.

Even a bond of provision, or any gratuitous deed, will descend to heirs, as above said, if such was the granter's intention. Nor is it necessary in equity that such intention be expressed in words: it is suf­ficient that it be made evident from circumstances.

What is said above seems a more clear and conclusive reason for excluding heirs where the creditor in a bond of provision dies be­fore the term of payment, than what is commonly assigned, viz. that the sum in the bond, being destined as a stock for the child, ceases to be due, since it cannot answer the purpose for which it was intended. Were this reason good, it would hold equally whether the child die before or after the term of payment; and therefore in pro­ving too much it proves nothing.

In what cases a legatee transmits a legacy to his heirs, is a question that takes in a great variety of matter. To have a distinct notion of this question, legacies must be divided into their different kinds. I begin with the legacy of a corpus. The property here is transferred to the legatee ipso jure upon the testator's death. The reason is, that will solely must in this case have the effect to transfer property, o­therwise it could never be transferred from the dead to the living: a proprietor after his death cannot make delivery; and no other per­son but the proprietor can make a legal delivery. Now if the legatee be vested in the property of the subject legated, it must upon his death descend to his heirs even by common law.

But what if the legatee die before the testator? In this case the legacy is void. The testator remains proprietor till his death, and the subject legated cannot by his death be transferred to a person who is no longer in existence. Nor can it be transferred to that per­son's [Page 287] heirs, because the testator did not exert any act of will in their favour.

The next case I put is of a sum of money legated to Titius. A le­gacy of this sort, giving the legatee an interest in the testator's perso­nal estate, and intitling him to a proportion, vests in the legatee ipso jure upon the testator's death. And for the same reason that is given above, the legacy even at common law will transmit to heirs, if the legatee survive the testator; if not, it will be void. But what if the legacy be ordered to be paid at a certain term? It must be con­sidered, whether the term be added for the benefit of the testator's heir, in order to give him time for preparing the money; or whether it be added as a limitation upon the legacy. A term for payment given to the testator's heir, will not alter the nature of the legacy, nor prevent its vesting in the legatee upon the testator's death; and con­sequently such a legacy will transmit to heirs, even where the legatee dies before the term of payment, provided he survive the testator. Dies cedit etsi non venerit. But where the purpose of naming a term for payment is to limit the legacy, the legatee's death before that term will bar his heirs, because he himself had never any right. Here dies nec cedit nec venit. In order to ascertain the intention of the testator in naming a day for payment, the rule laid down by Pa­pinian is judicious: Dies incertus conditionem in testamento facit *. A day certain for performance is commonly added in favour of the te­stator's heir, in order to give him time for providing the money. An uncertain term respects generally the condition of the legatee, as where a legacy is in favour of a boy to be claimed when he arrives at eighteen years of age, or of a girl to be claimed at her marriage: in such instances, it appears to be the will of the testator, that the lega­cy shall not vest before the term of payment. The dies incertus is said to make the legacy conditional; not properly speaking, for the na­ming a day of payment, certain or uncertain, is not a condition. But as the uncertain term for payment has the effect to limit the le­gacy in the same manner as if it were conditional; for that reason, the uncertain term is said to imply a condition, or to make the lega­cy conditional.

A third sort of legacy is where the testator burdens his heir to pay a certain sum to Titius singly, without the addition of heirs. The heirs, by the common law, have no right even where Titius survives the testator, because there is not here, as in the former cases, any [Page 288] subject vested in Titius to descend of course to his heirs; not can heirs, by the common law, claim upon an obligation which is not in their favour. But equity sustains an action to them: for no day being named, the death of the testator is the term of payment; and equity will not suffer the testator's heir to profit by delaying payment. Where a term of payment is added by the testator, the case becomes the same with that of a gratuitous obligation inter vivos.

CHAP. IV. Arrestment and process of forthcoming.

THOUGH a creditor cannot be forc'd to receive any subject for payment of his debt other than current specie; yet sometimes he agrees to take satisfaction in goods; and sometimes, for want of ready money, he is put off with a security, an assignment to rents, for example, or to debts, which impowers him to draw his payment out of these funds belonging to his debtor. Legal execution, copy­ing a creditor's private acts, is clearly distinguishable into three kinds. The first, by forcing payment of the debt, resembles as to its effect voluntary payment. This was the case of poinding as framed originally *: and is the case at present of a forthcoming of moveables, as will appear from the following analysis. A debtor's moveables in his own possession are attached by poinding, corresponding to the Le­vari facies in England: but where these moveables are in custody of any other, and the particulars unknown, there is no opportunity for poinding: they are attached by a process of forthcoming against the custodier or possessor; in which process, the moveables attached are sold by authority of the court, the price is delivered to the creditor for his payment, and the debt is thereby extinguished in whole or in part.

The second resembles voluntary acceptance of fungibles for satis­fying the debt; which is the case of poinding as modelled in our later practice. The goods are not sold as originally, but only valued and delivered ipsa corpora to the creditor for satisfying the debt upon which the execution proceeds.

The third resembles a voluntary security; for it proceeds no far­ther than to give a security upon the debtor's funds, leaving the cre­ditor [Page 289] to operate his payment by virtue of the security. This is the case of an adjudication during the legal, which impowers the credi­tor to draw his payment out of the debtor's rents, provided the te­nants be willing to pay: if refractory, they may be compelled by a decree against them personally for their rents. This decree, termed a decreet of mails and duties, completes the security, by giving direct ac­cess to the debtor's tenants. A decree for making forthcoming sums of money due to the debtor, is of the same nature; being a security only, not payment: and such a decree may be justly defined a power given to the creditor to draw payment from the debtors of his debtor. What follows to complete the process may be done by private con­sent: the person against whom the decree of forthcoming is obtained ought to pay without further compulsion; and payment thus obtained voluntarily, extinguishes the debt upon which the forthcoming is founded. In a word, a decree of forthcoming obtained by my credi­tor against my debtor, resembles in every circumstance an order by me upon my debtor, to deliver the sum he owes me to my creditor for sa­tisfying the debt I owe him: a decree of forthcoming is a judicial or­der, having the same effect with a voluntary order. Hence it clearly follows, that if my debtor, against whom the decree of forthcoming is obtained, prove insolvent, the sum is lost to me, not to my credi­tor: his security indeed is gone, but the debt which was secured re­mains entire.

A judicial order to secure a moveable subject, whether a person or goods, till it be disposed of by legal authority, is styled, an arrest­ment. Persons accused of crimes are arrested to prevent their flying or absconding. When the property of moveables is disputed, they are arrested in the hands of the possessor till the property be ascertain­ed. This arrestment, termed rei servandae causa, is a species of seque­stration: it is a sequestration in the hands of the possessor, instead of a sequestration in manibus curiae. It hath its full effect, by securing the controverted subject till the property be ascertained; and when the property is ascertained, the proprietor takes possession via facti, with­out necessity of a process of forthcoming. A third sort of arrestment is preparatory to a process of forthcoming, raised by a creditor for drawing his payment out of his debtor's moveable funds; and this sort only is proposed to be handled in the present chapter.

When a creditor suspects that his debtor has goods not in his own possession, he obtains a warrant or order from a proper court to arrest them in the hands of the custodier; and this order served upon the custodier, makes him answerable for these goods, when they are de­manded [Page 290] by the creditor in a process of forthcoming. The service of this order is termed an arrestment, and the person upon whom it is served is termed the arrestee. Sums due to the debtor may be arrested in the same manner. An arrestment of this kind is not, properly speaking, a step of execution; for goods or debts may be made forthcoming for satisfying the creditor without using an arrestment: it is only a prepa­ratory step used by a cautious creditor, for securing the subject in the hands of the arrestee till a process of forthcoming be raised. In this respect, an arrestment is precisely similar to an inhibition, which, properly speaking, is not a step of execution, but only an injunction to the debtor, prohibiting him to alien his land, or to contract debt; and the effect of this prohibition is to preserve the fund entire to the creditor when he proceeds to adjudge. Adjudications are carried on every day without a preparatory inhibition; and in the same manner may a process of forthcoming be carried on without a preparatory ar­restment.

These things shortly premised, I come to what is chiefly intended in this chapter, which is to explain the operations of common law and of equity with respect to an arrestment, when it is brought in competition with other rights voluntary or legal. All writers are a­greed about the effect given by common law to an arrestment of moveable goods; which being, as above observed, a sequestration in the hands of the possessor, transfers not the property to the creditor. The goods secured by the arrestment are, in the process of forthco­ming, sold as the property of the debtor, and the price is applied for payment of the debt due by him to his creditor the arrester. For this reason, an arrestment cannot bar a poinding carried on by another creditor: the common law, authorising execution, considers only whether the subject proposed to be attached belong to the debtor; and if it be his property, execution proceeds of course.

The effect of an arrestment attaching sums of money due to the ar­rester's debtor, has been much controverted; and in order to clear that point, it becomes necessary to take an accurate survey of such arrestment in all its parts. The letter or warrant for arrestment, to which the arrestment itself is entirely conformable, is in the follow­ing words: ‘"To fence and arrest all and sundry the said A. B. his readiest goods, gear, debts, &c. in whosoever hands the same can be apprehended, to remain under sure fence and arrestment, at the instance of the said complainer, ay and while payment be made to him."’ Upon this warrant, and arrestment following upon it, it will be observed, first, That no person is named but the arrester and [Page 291] his debtor. It is not a limited warrant to arrest in the hands of any particular person; but authorises the creditor to arrest in the hands of any person that he suspects may owe money to his debtor. Se­condly, The arrestee is not ordered or authorised to make payment to the arrester: the order he receives, is to keep the money in his hand till the arrester be satisfied. These particulars make it plain, that an arrestment, like an inhibition, is merely prohibitory; and that it transfers not any right to the arrester, which would be a positive ef­fect. And this point is put out of doubt by the summons of forth­coming, concluding, ‘"That the defender should be decerned and or­dained to make forthcoming to the complainer the sum of resting and owing by him to A. B. (the complainer's debtor against whom the execution passes), and arrested in the defender's hands at the complainer's instance."’ A decree of forthcoming, therefore, as above observed, is a species of execution, intitling the creditor to draw his payment out of sums due to his debtor. It is the decree of forth­coming that gives a security to the creditor upon the sum arrested due to his debtor; and the preparatory arrestment has no other effect, but to afford an interim security to prevent alienation before the process of forthcoming be raised.

If it hold true, that arrestment is prohibitory only, and that my creditor arresting in the hands of my debtor, hath no right to the sum arrested till he obtain a decree of forthcoming; it follows upon the principles of common law, that this sum, belonging to me after arrestment as well as before, lies open to be attached by my other creditors; and that, in a competition among these creditors, all of them arresters, the first decree of forthcoming must give preference. For the first order served upon my debtor binds him to the creditor who obtained the order; after which he cannot legally pay to any o­ther. Thus stands the common law, which is followed out in a course of decisions, mostly of an old date, giving preference, not to the first arrestment, but to the first decree of forthcoming.

Whether equity make any variation shall be our next inquiry. It is the privilege of a debtor, with respect to his own funds, to chuse what of them he will apply for payment of his debts. Upon the debtor's failure, this choice is transferred to the creditor, who may attach any particular subject for his payment. In that case, the debtor is in duty bound to surrender to his creditor the subject attach­ed, by conveying it to him for his security. It is undoubtedly the duty of the debtor to relieve his creditor from the trouble and expence of execution; and, consequently, to relieve him from execution against [Page 292] any particular subject, by surrendering it voluntarily, unless he find other means of making payment. The creditor's privilege to attach any particular subject for his payment, and the debtor's relative obli­gation to save execution by surrendering that subject to his creditor, are indeed the foundation of all execution. A judge authorising exe­cution, supplies only the place of the debtor; and consequently can­not authorise execution against any particular subject, unless the debtor be antecedently bound to surrender the same to his creditor *. This branch of the debtor's duty explains clearly a rule in law, ‘"That inchoated execution makes the subject litigious, and ties up the debtor's hands from aliening."’ If it be his duty to prevent execu­tion by surrendering this subject to his creditor, it is inconsistent with his duty to dispose of it for any other purpose.

In applying the rules of equity to an arrestment, the duty now un­folded will be found of importance. If the debtor ought to convey to his creditor the subject arrested by him, no other creditor who knows the debtor to be so bound, can justly attach that subject by legal execution: for it is unjust to demand from a debtor privately, or even by legal execution, any subject that he is bound to convey to another . And if a creditor shall act thus unjustly, by arresting a subject which he knows to be already arrested by another creditor, a court of equity will disappoint the effect of the second arrestment, by giving preference to the first.

Our writers, though they have not clearly unfolded the foregoing obligation which the debtor is under to the first arrester, have, how­ever, been sensible of it; for it is obviously with reference to this ob­ligation, that an arrestment is said to make a nexus realis upon the subject. I know but of two ways by which a man can be connected with a debt: one is where he has the jus exigendi, and one where the creditor is bound to make it over to him. It will be admitted, that an arrestment has not the effect of transferring to the arrester the debt ar­rested: the arrester has not even the jus exigendi till he obtain a decree of forthcoming. And if so, a nexus realis, applied to the present sub­ject, cannot import other than the obligation which the creditor is un­der to make over the debt to the arrester. Thus, by the principles of equity, the first arrestment is preferable while the subject is in medio; but if a posterior arrester, without notice of a former, obtain payment upon a decree of forthcoming, he is secure in equity, as well as at common law; and his discovery afterward of a prior arrestment will not oblige him to repay the money . This equitable rule of prefer­ence [Page 293] is accordingly established at present, and all the late decisions of the court of session proceed upon it.

An arrestment, as observed above, hath not the effect at common law to bar poinding; but in equity, for the reason now given, an arrestment made known to the poinder, ought to bar him from pro­ceeding in his execution, as well as it bars a posterior arrestment. A creditor ought not, by any sort of execution, to force from his debtor what the debtor cannot honestly convey to him. And yet, though in ranking arrestments the court of session follows the rules of equity, it acts as a court of common law in permitting a subject to be poind­ed after it is arrested by another creditor. I shall close this branch of my subject with a general observation, That the equitable rules esta­blished above, hold only where the debtor is solvent: it will be seen afterward, that in the case of bankruptcy, all personal creditors ought to draw equally.

So much about arresters competing for the same debt. Next a­bout an arrester competing with an assignce for a valuable considera­tion. Touching this competition, one preliminary point must be ac­curately adjusted, viz. How far an arrestment makes the subject ar­rested litigious; or, in other words, How far it bars voluntary deeds. It is obvious, in the first place, that an arrestment makes the subject litigious with respect to the arrestee, because it is served upon him: the very purpose of the arrestment is, to prohibit him from making payment, or from giving up the goods of which he is custodier. In the next place, As a creditor may proceed to arrestment without in­timating his purpose to his debtor, an arrestment cannot bar the debtor's voluntary deeds, till it be notified to him: the arrestment deprives him not of his jus crediti, nor of his property; and while he continues ignorant of the arrestment, nothing bars him, either in law or in equity, from conveying his right to a third party. Upon that account, intimation to him is an established practice in the coun­try from whence we borrowed an arrestment: ‘"Quamvis debitor debitoris mei a me arrestari nequeat, cum mihi nulla ex causa obli­gatus sit, tamen, quod Titius debitori meo debet, per judicem inhi­bere possum, ne debitori meo solvatur, sine mea vel judicis volun­tate. De quo arresto debitorem meum certiorem facere debeo, ei­que diem dicere, quo si compareat, nec justam causam alleget, ob quam arrestum relaxari debeat, vel si non compareat, judex ex pe­cunia arrestata mihi solvendum decernet *."’ The same doctrine is [Page 294] laid down by Balfour *, ‘"That an arrestment of corns, goods, or gear, ought to be intimated to the owner thereof; and that if no intimation be made, it is lawful for the owner to dispose of the same at his pleasure."’ Thirdly, With respect to others, an arrest­ment, though notified to the arrester's debtor, makes not the subject litigious; for any person ignorant of the arrestment, is at liberty to take from the arrester's debtor a conveyance to the subject arrested. The cedent aliens indeed mala fide after the arrestment is notified to him; but the purchaser is secure if he be in bona fide: the property is legally transferred to him; and there is nothing in law nor in equity to deprive a man of a subject honestly acquired. That an arrestment makes not the subject litigious with regard to third parties▪ will be clear from considering, that an effect so strong is never given to any act, unless there be a public notification: a process in the court of session is supposed to be known to all; and, as it is a rule Quod nihil innovandum pendente lite, any person who transacts either with the plaintiff or defendant, so as to hurt the other, does knowingly an unlawful act, which for that reason will be voided: an inhibition and interdiction are published to all the lieges, who are thereby put in mala fide to purchase from the person inhibited or interdicted: an apprising renders the subject litigious as to all, because the letters are publicly proclaimed or denounced, not only upon the land, but also at the market-cross of the head-borough of the jurisdiction where the land lies ; and an adjudication has the same effect, because it is a process in the court of session: a charge of horning bars not the debtor from aliening, till he be publicly proclaimed or denounced rebel; and it must be evident, that an arrestment served against my debtor cannot hurt third parties dealing with me, more than a horn­ing against myself. In a word, litigiosity, so as to affect third par­ties, never takes place without public notification.

When one considers an inhibition, it will occur, that the argument here may be carried a great way farther; even so far as that the actual knowledge of an arrestment should not bar any person from purcha­sing the subject arrested. But the argument from an inhibition con­cludes not with respect to an arrestment; and in order to show the difference, it will be necessary to state the nature of an inhibition in a historical view.

This writ prohibits the alienation of moveable as well as of im­moveable subjects; and to secure against such alienation, the writ is published to the lieges, to put every man upon his guard against [Page 295] dealing with the person inhibited. This writ must have been the in­vention of a frugal age, before the commerce of money was far ex­tended, and before inhibitions were frequent. While inhibitions were rare, their publication could be kept in remembrance; a debtor inhi­bited would be a remarkable person, and every one would avoid deal­ing with him: but when the commerce of money was farther extend­ed, and debts were multiplied, an inhibition was no longer a mark of distinction. And as inhibitions could no longer be kept in memory, they became a load upon the commerce of moveables past all enduring; for no man was in safety to purchase from his neighbour a horse, or a bushel of corn, till first the records of inhibitions were consulted. A Lycurgus intending to bar commerce, in order to preserve his nation in poverty, could not have invented a more effectual scheme. But this execution, inconsistent with commerce so far as it affects move­ables, is also inconsistent in itself, tending in a most direct manner to disappoint its own end. The purpose of an inhibition is to force pay­ment; and the effect of it is to prevent payment, by locking up the debtor's moveables, which commonly are the only ready fund for pro­curing money.

These reasons have prevailed upon the court of session to deny any effect to an inhibition, so far as it regards moveables. An inhibition indeed, with respect to its form and tenor, continues the same that it was originally; and accordingly every debtor inhibited is to this hour discharged to alien his moveables, not less peremptorily than to alien his land. This is an inconsistency that cannot be remedied but by the legislature; for the court of session cannot alter a writ of the common law, more than it can alter any other branch of the com­mon law. But the court of session, as a court of equity, can redress the rigor, injustice, or oppression, of the common law: and though it hath no power to alter the style of an inhibition, it acts justly in denying any force to an inhibition so far as it affects moveables; be­cause so far it is an oppressive and inconsistent execution. This argu­ment, as above hinted, may seem to apply to an arrestment, that e­ven the knowledge of this execution ought not to bar any person from purchasing the subject arrested, whether it be a debt, or a move­able properly so called. But this holds not in practice: and there is good reason for distinguishing, in this particular, an arrestment from an inhibition: the latter prohibits, in general, the debtor to alien any of his moveables, and for that reason is highly rigorous and oppres­sive: the former is of particular subjects only, nor doth it affect any [Page 296] moveables in the debtor's own possession; and for that reason, the execution so limited is neither rigorous nor oppressive. An arrest­ment, therefore, as to the subjects affected by it, is allowed in practice to have the full effect that is given it by the common law. But with respect to a third party, it has a more ample effect in equity than at common law: for though a man who bona fide purchases a subject ar­rested, is secure in equity as well as at common law; yet a mala fide purchase, though effectual at common law, will undoubtedly be void­ed in a court of equity.

Having discussed preliminary points, we proceed to the subject pro­posed, viz. the competition between an arrester and an assignee. I begin with an arrestment of a moveable bond, assign'd before the ar­restment, but intimated after. The intimation by our law makes a complete conveyance of the bond into the person of the assignee, af­ter which it is in vain to think of making the debt forthcoming to the arrester for his payment: the very foundation of his claim is gone; for neither law nor equity will permit any subject to be taken in exe­cution that belongs not to the debtor. Many decisions, it is true, prefer the arrester; upon what medium, I cannot comprehend. Our decisions, however, are far from being uniform upon this point. I give the following example. A assigns the rent of his land for secu­rity and payment of a debt due by him. A hath another creditor who afterward raises a process of adjudication against the same land. The assignee intimating his right after the citation, but before the de­cree of adjudication, is preferred before the adjudger *. An arrest­ment surely makes not a stronger nexus upon the subject than is made by a citation upon a summons of adjudication; and if an assignment be preferred before the latter, it must also be preferred before the for­mer. But I say more. Let it be supposed, that after the citation upon the summons of adjudication, but before intimation of the assignment, the mails and duties are arrested by a third creditor. The decree of adjudication is preferred before the arrestment . If so, here is a circle absolutely inextricable, an adjudication preferred before an ar­restment, that arrestment before an assignment, and that assignment again before the adjudication. This proves demonstrably that the assignee ought to be preferred before the arrester as well as before the adjudger. The court went still farther in preferring an assignee be­fore an arrester. An English assignment to this day is a procuratory in rem suam only, carrying the equitable right indeed, but not the legal right. And yet with respect to a bond due to Wilson residing [Page 297] in England by the Earl of Rothes in Scotland, an English assignment by Wilson of the said bond was of itself, without intimation, prefer­red before an arrestment served afterward upon the Earl. The prefer­ence thus given was clearly founded on equity; because the court of session, as a court of equity, could not justly make forthcoming to a creditor of Wilson for his payment, a subject that Wilson had aliened for a valuable consideration, and to which the purchaser had the equi­table though not the legal right. But if this be a just decision, which it undoubtedly is, nothing can be more unjust, than to prefer an ar­restment before a Scotch assignment of a prior date, even after it is completed by intimation; for here the assignee has both the equitable and legal right.

The next case I put, is where in a process of forthcoming upon an arrestment, an assignee appears with an assignment prior to the ar­restment, but not intimated. I have already given my reason for preferring the assignee, as the court did with respect to an English assignment: and yet the ordinary practice is to prefer the arrestment; which one will have no hesitation to believe, when an arrestment is preferred even where the assignment is intimated.

The preference due to the assignee is in this case so clear, that I am encouraged to carry the doctrine farther, by preferring an assignee e­ven before a poinder, provided the assignee appear for his interest be­fore the poinding be completed. The poinder no doubt is preferable at common law, because the assignment not being completed by inti­mation, the debtor continues still proprietor. The assignee however has the equitable right, and justice will not permit goods that the debtor has aliened for a valuable consideration to be attached by any of his creditors. The result will be different, where the poinding is completed, and the property of the goods transferred to the creditor, before the assignee appear. In this case the poinder is secure, be­cause no man can be forfeited of his property who has committed no fault.

I proceed to an assignment of a debt made after the arrestment, and intimated before the competition. Supposing the assignee to be in bona fide, he is clearly preferable; for the intimation vests in him the legal as well as equitable right, which bars absolutely the cedent and his creditors: and this reason is good at common law to prefer the assignee, even supposing he had notice of the arrestment before he took the assignment. But in equity the arrester is preferable where the assignee is in mala fide, for the following reason. The debtor, after his subject is affected by an arrestment, is bound in duty to make o­ver [Page 298] the subject to his creditor the arrester: if he transgress this duty by conveying the subject to one who knows of the arrestment, both are guilty of a moral wrong, which equity will redress by preferring the arrester.

Let us drop now the intimation, by putting the case, that, in a pro­cess of forthcoming at the instance of an arrester, an assignee appears for his interest, craving preference upon an assignment bearing date af­ter the arrestment, but before the citation in the process of forthco­ming. Supposing the assignee in mala fide, he will in equity be post­poned to the arrester for the reason immediately above given. But what shall be the rule of preference where the assignee purchases bona fide? The arrester and he have each of them an equitable right to the subject; neither of them has the legal right. This case resembles that of stellionate, where a proprietor of land sells to two different purchasers ignorant of each other: neither of whom has the legal right, because there is no infeftment; but each of them has an equi­table right. In these cases I cannot discover a rule for preference; nor can I extricate the matter otherwise than by dividing the subject between the competitors. And after all, whether this may not be cutting the Gordian knot instead of untying it, I pretend not to be certain.

Upon the whole, an arrestment appears a very precarious security till a process of forthcoming be commenced. This process indeed is a notification to the debtor not to alien in prejudice of the arrester, and at the same time a public notification to the lieges not to purchase the subject arrested. And by this process the subject is rendered liti­gious, though the same privilege is not indulged to an inhibition so far as moveables are concerned.

CHAP. V. Powers of a court of equity with relation to bankrupts.

IN the two foregoing books are contained many instances of equity remedying imperfections in common law as to payment of debt. But that subject is not exhausted: on the contrary, it enlarges upon us, when we take under consideration the law concerning bank­ruptcy. And this branch was purposely reserved, to be presented to the reader in one view; for the parts are too intimately connected to bear a separation without suffering by it.

[Page 299] This branch of law is of great importance in every commercial country; and in order to set it in a clear light, I cannot think of a better arrangement than what follows. First, To state the rules of common law. Secondly, To examine what equity dictates. Third­ly, To state the regulations of different countries. And to conclude with the proceedings of the court of session.

The rules of common law are very short, and indeed extremely imperfect. Any deed done by a bankrupt is effectual at common law, not less than if he were solvent. Nor is legal execution ob­structed by bankruptcy; a creditor, after his debtor's bankruptcy, having the same remedy for recovering payment, that he had while his debtor was in entire credit. The reason is, that with respect to deed done by a bankrupt, and execution by his creditors, the com­mon law regards one circumstance only, viz. whether the subject convey'd by the bankrupt, or attached by his creditors, was the bankrupt's property: if it was, a court of common law supports both. Hence it follows, that no fraud committed by a bankrupt against his creditors, can be regarded at common law. Let us sup­pose the grossest of all, that he secretes his moveables, and makes feigned alienations of his lands, in order to disappoint his credi­tors: yet such acts are considered as so many exertions of property, and consequently legal.

In order to determine with perspicuity what justice or equity dic­tates in this case, it becomes necessary in the first place to ascer­tain what circumstances make bankruptcy in the common sense of mankind. A man while he carries on trade, or hath any business that affords him a prospect of gain, is not bankrupt though his ef­fects may not be sufficient to pay his debts: it is not unjust to pay one creditor before another, while there is a prospect of making mo­ney to satisfy all of them. But a man whose effects are not suffi­cient for his debts, and who hath no prospect of bettering his cir­cumstances, is in the common sense of mankind insolvent or bank­rupt: his creditors must lose by him.

This situation, though not uncommon, is yet singular in the eye of justice. Property and interest, for the most part strictly united, are here disjoined: the bankrupt continues proprietor of his estate, but his creditors are the only persons interested in it: they have the equitable right, and nothing remains with him but the legal right. Considering the matter in this light, a bankrupt may not improperly be held as a trustee, bound to manage his effects for be­hoof of his creditors: the duty of a bankrupt is in effect the same [Page 300] with that of a trustee, as both of them ought to make a faithful account of the subjects under their management. While a debtor continues solvent, he may pay his creditors in what order he plea­ses, because no creditor suffers by the preference given to another; but upon his bankruptcy or insolvency, that privilege vanishes; he is bound to all his creditors equally, and justice dictates that he ought to distribute his effects among them equally. If a creditor in demanding payment from his debtors, or their cautioners bound conjunctly and severally, ought to behave with impartiality *, much more is this incumbent upon a bankrupt in making payment to his creditors. No distinction ought to be made but between real and personal creditors: a real security fairly obtained from a debtor in good circumstances, is not prejudicial to the other creditors: such a right, unexceptionable originally, cannot be voided by any accident that may afterward happen to the debtor; and therefore it is not transgressing the rule of impartiality for a bankrupt, in distributing his effects among his creditors, to prefer creditors of this sort before others.

If any hesitation remain about this doctrine after what has been said, I appeal, for removing it, to the general sense of this nation, vouched by act 5. parl. 1696, which, taking for granted that a bank­rupt ought to behave with impartiality to his creditors, prohibits him to prefer any of his creditors before the rest, and annulls every one of his deeds giving such undue preference. And I may also ap­peal to the English bankrupt-statutes, which evidently rest upon the same foundation.

Thus stands the duty of a bankrupt with respect to his creditors, founded on the rules of common justice. The duty of the creditors with respect to each other may seem not so evident. It is the privi­lege of a creditor who obtains not satisfaction, to draw his pay­ment out of the debtor's effects; and it will not readily occur, that the debtor's insolvency, the very circumstance which enhances the value of the privilege, should be a bar to it. This way of think­ing is extremely natural, and hence the following maxims that have obtained an universal currency: Prior tempore potior jure: Vigilantibus non dormientibus jura subveniunt. In rude times, before the connections produced by society have taken deep root, selfish principles prevail over those that are social. Thus in the present case, a creditor, par­tial to his own interest, is apt to confine his thoughts to the power he hath over his debtor; overlooking, or seeing but obscurely, that [Page 301] where the debtor is bankrupt, all the creditors are connected with each other by a common fund, the only subject of their payment. But by refinement of manners, the social connections gain the a­scendant: man becomes more a social than a selfish being; and by the improvement of his rational as well as sensitive faculties, he dis­covers the lawful authority of social duties, as what he is bound to fulfil even in opposition to his own interest. By such refinement it is at last perceived, that upon the debtor's insolvency his personal creditors have all of them an equal claim upon his effects: that a creditor taking measures to operate his payment, ought to consider the connection he has with his fellow-creditors engaged equally with him upon the same fund; and therefore that justice requires an e­qual distribution. In every view we take of the subject, we become more and more satisfied that this rule is agreeable to justice. To make the distribution of the common fund depend on priority of exe­cution, exhibits the appearance of a race, where the swiftest obtains the prize: a race is a more manly competition, because there is me­rit in swiftness; whereas priority in execution depends upon acci­dent more frequently than upon expedition. It is natural for savage animals to fall out about their prey, and to rob each other; but so­cial beings ought to be governed by the principle of benevolence: creditors in particular, being connected by a common fund, and equally interested, should not like enemies strive to prevent each o­ther; but like near relations should join in common measures for the common benefit.

But to put this matter past doubt, I urge the following argument. A debtor, after his insolvency, is bound to distribute his effects equally among his creditors; and it would be an act of injustice in him to prefer any of them before the rest. It necessarily follows, that a creditor cannot be innocent, who, knowing the bankruptcy, takes more than his proportion of the effects: if he take more by vo­luntary payment, he is accessory to an unjust act done by the bank­rupt; and it will not be thought that he can justly take more by ex­ecution than by voluntary payment. If he should attempt such wrong, it is the duty of the judge to refuse execution *.

That creditors having notice of their debtor's bankruptcy are barred from taking advantage of each other, seems now sufficiently evident. It is a matter of greater intricacy, what effect bankrupt­cy ought to have against creditors who are ignorant of it. I begin with the case of payment made by a bankrupt in money or effects, [Page 302] which transfers the property to his creditor. It is demonstrated a­bove *, that even in the case of stellionate, the second purchaser, supposing him in bona fide, and not partaker of his author's fraud, is secure by getting the first infeftment, and that his purchase can­not be cut down in equity more than at common law. The reasoning there concludes with equal if not superior force in the case of bankruptcy: it is unjust in a bankrupt to prefer one creditor before another; but if he offer payment, the creditor who accepts, supposing him ignorant of the bankruptcy, is innocent, and therefore secure: the property of the money or effects being transferred to him in lieu of his debt, there is no rule in equity more than at common law to forfeit him of his property. The same reasoning concludes in favour of a creditor, who, ignorant of the bankruptcy, recovers payment by a poinding, or by a forthcoming upon an arrestment.

Next comes the case of a real security, the nature of which is, that it transfers not the property of the subject. It is observed above, that a real security obtained before bankruptcy is in all events a preferable debt. But what if it be obtained after bankruptcy? The creditor, who, ignorant of his debtor's bankruptcy, obtains from him such security, whether by legal execution or by volun­tary deed, is not culpable in any degree: at the same time, before this security existed, the equitable right to the bankrupt's effects was transferred to his creditors, who were intitled each of them to draw a share in proportion to his just claim, supposing all of them at that period to have been personal creditors. This right established in e­quity, cannot in equity be voided by legal execution; which is cal­culated to force payment of what is justly due, and not to create a debt nor to enlarge it: far less can it be voided by the voluntary deed of the bankrupt, which as to him is an unjust act. Where a debt is actually extinguished by payment, and the property of the money transferred, the court cannot interpose; for equity never de­prives an innocent man of his property. But where the creditor is still in petitorio, the court justly refuses to interpose in his behalf, be­cause his real security cannot be supported without forfeiting the o­ther creditors of their equitable rights.

If in a bankrupt it be unjust to divide his effects unequally among his creditors, it is still more unjust to hurt his whole creditors by gratuitous alienations or gratuitous bonds. A gratuitous alienation transferring the property, cannot, it is true, be voided, if the donee [Page 303] be not in the knowledge of the bankruptcy: but he is liable to make good the value to the bankrupt's creditors, upon the rule of e­quity Quod nemo debet locupletari aliena jactura; which is not appli­cable to an alienation before bankruptcy, because by such an aliena­tion the creditors are not hurt. But against a gratuitous bond claimed after bankruptcy, though executed and delivered while the granter was in good circumstances, the rule Quod nemo debet locupleta­ri aliena jactura is applicable; because the taking payment is a direct prejudice to the creditors, who have given a valuable consideration, by lessening their fund; and for that reason a court of equity will not interpose to make such a bond effectual. It deserves attention, that this principle operates in favour of a creditor who lent his money even after the date of the gratuitous bond *.

The equitable right to the debtor's effects, which, upon his insol­vency, accrues to his creditors, makes it wrong in him to sell any of his effects privately without their consent. The sale indeed is effec­tual at common law; but the purchaser, supposing his knowledge of the bankruptcy, is accessory to the wrong, and the sale is void­able upon that ground. The principle of utility also declares against a sale of that nature: for to permit a bankrupt to alien his effects privately, even for a just price, is throwing a temptation in his way to defraud his creditors, by the opportunity he has to walk off with the money.

Thus we see that in applying the rules of equity to the case of bankruptcy, two preliminary facts are of importance; first, the com­mencement of the bankruptcy; and, next, what knowledge creditors or others have of it: the former is necessary to be ascertained in e­very case; the latter frequently. The necessity of such proof tends to darken and perplex law-suits concerning bankruptcy. To expiscate even the commencement of bankruptcy, must always be difficult, considering that it depends on an internal act of the debtor's mind deeming his affairs irretrievable: and the difficulty is greatly increa­sed, when the knowledge of the bankruptcy comes also to be a point at issue; for such knowledge must be gathered commonly from a va­riety of circumstances, that are scarce ever the same in any two cases. To avoid such intricate expiscation, which tends to make law-suits endless and judges arbitrary, it has been a great aim of the legislature in every commercial country, to specify some ouvert act that shall be held not only the commencement of bankruptcy, but also a public notification of it.

[Page 304] But if the specifying a legal mark of bankruptcy be of great im­portance, the choice of a proper act for such a mark is not less nice than important. Whether in any country a choice altogether unex­ceptionable has been made, seems doubtful. It ought, in the first place, to be some act that cannot readily happen except in bankrupt­cy: for to establish as a mark of bankruptcy any act that may happen where there is no bankruptcy, may have pernicious consequences, and be upon occasion a heavy punishment without any guilt. Secondly, It must be such an act as will readily happen in bankruptcy, and which a bankrupt cannot prevent: for if it be in his power to suppress it altogether, or for any time, he may in the interim do much wrong for which there can be no remedy.

Having thus gone through the rules of the common law and the rules of equity concerning bankruptcy, we are, I presume, sufficiently prepared for the third article proposed, viz. to state the regulations of different countries upon that subject. And to bring the present article within reasonable compass, I shall confine myself to the Roman law, the English law, and that of Scotland, which may be thought suffi­cient for a specimen. I begin with the Roman law. A debtor's ab­sconding intitled his creditors to apply to the court for a curator bonis; and after the creditors were put in possession by their curator, no cre­ditor could take payment from the bankrupt *. This missio in possessio­nem, however, seems not to have been deemed a public notification of bankruptcy; for even after that period, a purchaser from the bank­rupt was secure, if it could not be proved that he was particeps fraudis . But every gratuitous deed was rescinded, whether the acquirer was ac­cessory to the wrong or not ; and in particular a gratuitous discharge of a debt .

Before the missio in possessionem the debtor continued to have the ma­nagement as while he was solvent, and particularly was intitled to pay his creditors in what order he thought proper. It is accordingly laid down, That a creditor, who before the missio in possessionem receives pay­ment, is secure, though he be in the knowledge of his debtor's insol­vency. Sibi enim vigilavit, says the author **: a doctrine very just with respect to a court of common law, but very averse to Praetorian law or principles of equity.

The defects of the foregoing system are many, but so obvious as to make a list unnecessary. I shall mention two particulars only, being [Page 305] of great importance. The first is, that the necessity of establishing a public mark of bankruptcy which every one is presumed to know, seems to have been altogether overlooked by the Romans. Even the missio in possessionem, as mentioned above, was not held such a mark. It is true, that after such possession no creditor could take payment from the bankrupt. But why? Not because of the creditor's mala fides, but because the creditors in general, being put in possession of the bankrupt's funds, acquired thereby a jus pignoris, and in the division of the price were accordingly intitled each of them to a rateable pro­portion. I observe next, that it is a great oversight in the Roman law, to neglect that remarkable period which runs between the first act of bankruptcy and the missio in possessionem. In that period generally all contrivances are set on foot to cover the effects of the bankrupt, or to prefer the favourite creditors.

In England, the regulations concerning bankrupts are extended farther than in the Roman law, and are brought much nearer the rules of equity above laid down. The nomination of commissioners by the chancellor upon application of the creditors, is, in effect, the same with the nomination of a curator bonis in the Roman law. The foregoing defects of the Roman law are at the same time supplied, by declaring a debtor's absconding or keeping out of the way, termed the first act of bankruptcy, to be a public mark or notification of bank­ruptcy, of which no person is suffered to plead ignorance. From that moment the hands both of the bankrupt and of his creditors are tied up: he can do no deed that is prejudicial to his creditors in general, or to any one in particular: they, on the other hand, are not permit­ted to receive a voluntary payment, nor to operate their payment by legal execution.

It is perhaps not easy to invent a regulation better calculated for fulfilling the rules of equity, than that now mentioned. It may be thought indeed, that the absconding or keeping out of the way, sup­posing it momentary only, is a circumstance too slight and too private to be imposed upon all the world as notorious. But it ought to be considered, that the English bankrupt-statutes are confined to mercan­tile people, who live by buying and selling: and with respect to a merchant, his absconding or keeping out of the way is a mark of bankruptcy neither slight nor obscure. Merchants convene regularly in the exchange; a retailer ought to be found in his shop or ware­house; and their absconding or absence without a just cause is con­spicuous. A person may happen, for some time, to be ignorant of the first act of bankruptcy; but a singular case must not be made an [Page 306] exception to a general rule: justice must be distributed by general rules; and it is better for society that some individuals suffer than that judges become arbitrary and law-suits endless. There is indeed a hardship in this regulation with respect to commerce, which is soften­ed by a late statute *, enacting, That money received from a bank­rupt in the course of trade and dealing before the commission of bank­ruptcy sued forth, whether in payment of goods sold to the bankrupt, or of a bill of exchange accepted by him, shall not be claimed by the assignees to the bankruptcy, unless it be made appear, that the per­son so receiving payment was in the knowledge of the debtor's bank­ruptcy. This is in effect declaring with respect to payment received in the course of trade, that the issuing the commission of bankruptcy is to be deemed the first public mark or notification of bankruptcy, and not what is called the first act of bankruptcy.

The first bankrupt-act we have in Scotland is an act of sederunt ra­tified by statute 1621, cap. 18. intitled, ‘"A ratification of the act of the Lords of Council and Session against unlawful dispositions and alienations made by dyvours and bankrupts."’ In this act of sede­runt two articles only are brought under consideration. First, Frau­dulent contrivances to withdraw a bankrupt's effects from his credi­tors by making simulate and feigned conveyances. Second, The par­tiality of bankrupts, by making payment to favourite creditors, neg­lecting others. With respect to the first, it is set forth in the pream­ble, ‘"That the fraud, malice, and falsehood of dyvours and bank­rupts was become so frequent as to be in hazard of dissolving all trust and commerce among the subjects of this kingdom; that ma­ny, by their apparent wealth in land and goods, and by their show of conscience and honesty, having obtained credit, intend not to pay their debts, but either live riotously, or withdraw themselves or their goods forth of this realm to elude all execution of justice: and to that effect, and in manifest defraud of their creditors, make si­mulate and fraudful alienations, dispositions, and other securities of their lands, reversions, teinds, goods, actions, debts, and other subjects belonging to them, to their wives, children, kinsmen, al­lies, and other confident and interposed persons, without any true, lawful, or necessary cause, and without any just or true price; whereby the creditors and cautioners are falsely and godlessly de­frauded of their just debts, and many honest families are ruined."’ For remedying this evil,▪ it is ordained and declared, ‘"First, That all alienations, dispositions, assignations, made by the debtor, of any [Page 307] of his lands, teinds, reversions, actions, debts, or goods, to any conjunct or confident person, without true, just, and necessary causes, and without a just price really paid, shall be of no force or effect against prior creditors. Second, Whoever purchases from the said interposed persons any of the bankrupt's lands or goods, at a just price, or in satisfaction of debt, bona fide, without being par­taker of the fraud, shall be secure. Third, The receiver of the price shall make the same forthcoming to the bankrupt's creditors. Fourth, It shall be sufficient evidence of the fraud intended against the creditors, if they verify by writ, or by oath of the party-receiver of any right from the dyvour or bankrupt, that the same was made without any true, just, and necessary cause, or without any true price; or that the lands or goods of the bankrupt being sold by the interposed person, the price is to be converted to the bankrupt's profit and use. Fifth, All such bankrupts, and interposed persons for covering or executing their frauds, and all others who shall give counsel and assistance to the said bankrupts in devising and practising their frauds and godless deceits to the prejudice of their true creditors, shall be reputed and holden dishonest, false, and in­famous persons, incapable of all honours, dignities, benefices, and offices, or to pass upon an inquest or assize, or to bear witness in judgment or outwith, in any time coming."’

The clause restraining a bankrupt's partiality in making payment to favourite creditors and neglecting others, is expressed in the following terms: ‘"If any bankrupt, or interposed person partaker of his fraud, shall make any voluntary payment or right to any person, in de­fraud of the more timely diligence of another creditor, having ser­ved inhibition, or used horning, arrestment, comprising, or other lawful mean to affect the bankrupt's lands, goods, or price there­of; in that case the bankrupt, or interposed person, shall be bound to make the same forthcoming to the creditor having used the more timely diligence. And this creditor shall likewise have good action to recover from the co-creditor posterior in diligence what was vo­luntarily paid to him in defraud of the pursuer."’

With respect to the article concerning fraud, this act is an addi­tional instance of what I have had more than one opportunity to ob­serve, that the court of session, for many years after its institution, acted as a court of common law only. No wrong calls louder for a remedy than frauds committed by bankrupts in concealing their ef­fects from their creditors; and yet from the preamble of the act it appears, that the court of session had not, before that period, assu­med [Page 308] the power to redress any of these frauds. Nor is it clear that the power was assumed by the session as a court of equity: it is more presumeable that the court considered itself as a court of common law acting by legislative authority; first by authority of its own act, and afterward by authority of the act of parliament:—I say by authority of its own act; for the court of session being impowered by parliament to make regulations for the better administration of ju­stice, an act of sederunt originally was held equivalent to an act of parliament.

This act, framed as we ought to suppose by the wisest heads in the nation, is however not only shamefully imperfect, but in several par­ticulars grossly unjust. No general regulations are established con­cerning the conduct of the bankrupt, of his creditors, or of the jud­ges: no ouvert act is fixed as a public notification of bankruptcy: nor is there any regulation barring the creditors from taking advantage of each other by precipitancy of execution. Such blindness is the less excusable in judges to whom the Roman law was no stranger; and who, in an English bankrupt-statute passed a few years before, had a good model to copy after, and to improve. But this act, which has occasioned many irregular and even unjust decisions, must be exami­ned more particularly.

In the first place, There cannot be a stronger instance of unskilful­ness in making laws, than the clause in the statute confining the evi­dence of fraud to the writ or oath of the person who receives any sub­ject from the bankrupt. A very little insight into human nature would have taught our judges, that it is in vain to think of detecting fraud by the evidence of those who deal in it, whether as principals or accessories. Covered crimes must be detected by circumstances, or not at all; and such matters, being beyond the reach of a general rule, must be left with judges, without any rule other than to deter­mine every case according to its peculiar circumstances. And accor­dingly we shall have occasion to see afterward, that the court of ses­sion were forc'd to abandon the evidence established by themselves, and in every instance to indulge such proof as the nature of the case would admit. In the second place, With respect to deeds done against creditors in general, it may at first view appear strange, that the act of sederunt should be confined to actual fraud; a crime that merits punishment, and to which accordingly a punishment is annexed in the act itself. It plainly reacheth not a gratuitous deed in favour of children or others, however prejudicial to creditors; provided it be not granted fraudulently in order to hurt them, but in order to bene­fit [Page 309] the donees. This palpable defect in the act will be accounted for by an observation one has occasion to make daily, that in reforming abuses, there is generally a degree of diffidence which prevents the innovation from being carried its due length. The repressing actual fraud was a great improvement, which filled the mind, and scarce left room for a thought that the improvement could be carried far­ther. And, in all probability, it appeared a bolder step to supply the defect of common law by voiding frauds committed by bank­rupts, than to supply the defect of the statute by voiding also gratui­tous deeds.

So much upon the first article; and, with respect to the second, which is calculated to restrain the bankrupt from acting partially a­mong his creditors, it is not in my power to give it any colour either of justice or expediency. I have been much disposed to think, that an inchoated act of execution was intended by the legislature to be the public notification of bankruptcy so often mentioned. But I am ob­liged to relinquish that thought, when I consider, that our statute 1621 is not confined to merchants, but comprehends the whole body of the people; and that an inchoated act of horning or arrestment is scarce a mark of bankruptcy at present, far less when the act was made, with respect especially to landed men. And that in fact it was not intended a mark or notification of bankruptcy, is clear from the following considerations, that creditors are not barred by it from for­cing payment by legal execution, nor even the bankrupt from acting partially among his creditors; for, excepting that creditor only who hath commenced execution, it continues in the bankrupt's power as much as ever to distribute his effects among his favourite creditors, leaving the rest without a remedy. But it is fruitless to disguise a truth which will be discovered by every person of reflection, that this clause in the statute betrays gross ignorance of justice. There ought, no doubt, to be a remedy against the creditor who obtains payment by the bankrupt's partiality: but to make him surrender the whole to the creditor who has got the start in execution, is an unjust reme­dy; for justice only requires that he should surrender a part, that both may be upon a level. To make him surrender the whole is indeed an effectual cure to the bankrupt's partiality, but a cure that is worse than the disease; worse, I say, because the partiality of an individual is a spectacle much less disgusting than is the partiality of law. This regulation is unjust, even supposing the bankruptcy to be known to the creditor who receives payment. But how much more glaring the injustice where he happens to be ignorant of that fact? the money he [Page 310] receives becomes undoubtedly his property, and justice forfeits not a man of his property without a fault; and therefore to wrest from a creditor a sum he has received bona fide in payment of a just debt, is in reality to inflict a punishment without a delinquency. Nor is this all. The regulation in itself unjust, is not less so with re­spect to consequences. Voluntary payment effectually binds up the creditor from forcing payment by legal execution: in the mean time the funds of the bankrupt are swept away by other creditors: and if, after all, the creditor be forc'd to surrender the whole sum received by him in payment, he is left without a remedy, and is in a much worse state than if payment had not been offered him. Viewing a­gain this regulation with respect to utility, it appears not less inexpe­dient than unjust: to excite creditors to take the start in execution, it holds out a premium, to which they are not intitled by the rules of justice; a premium therefore that tends to a very unhappy conse­quence, viz. to overwhelm with precipitant execution honest dealers, who, treated with humanity, might have emerged out of their diffi­culties, and have become bold and prosperous traders.

The next bankrupt-statute in order of time is the act 62. parl. 1661, ranking pari passu with the first effectual apprising, all appri­sings of a prior date, and all led within year and day of it; for I shall have occasion to show afterward, that this statute ought to be classed with those concerning bankruptcy, though not commonly considered in that light. But the connection of matter, more in­timate than that of time, leads me first to the act 5. parl. 1696, in­tended evidently to supply the defects of the act 1621. Experience discovered in the act 1621 one defect mentioned above, that no ouvert act is ascertained, to be held the first act of bankruptcy as well as a public notification of it. This defect is supplied by the act 1696, in the following manner. An insolvent debtor under execu­tion by horning and caption, is declared a notour bankrupt, provi­ded he be imprisoned, or retire to a sanctuary, or fly, or abscond, or defend his person by force. This is one term, and counting sixty days backward, another term is fixed; after which all partial deeds by a bankrupt among his creditors are prohibited. The words are, ‘"All dispositions, assignations, or other deeds, granted by the bankrupt at any time within sixty days before his notour bankruptcy, in fa­vour of a creditor, directly or indirectly, for his satisfaction or fur­ther security, preferring him to other creditors, shall be null and void."’

It will be observed, that this statute, with respect to the legal com­mencement [Page 311] of bankruptcy, differs widely from those made in Eng­land. And indeed, to have copied these statutes, by making abscond­ing, or keeping out of the way, the first act of bankruptcy, would in this country have been improper. In England, arrestment of the debtor's person till he find bail being generally the first act of exe­cution, a debtor, to avoid imprisonment, must abscond or keep out of the way the moment his credit is suspected; and therefore in Eng­land, absconding or keeping out of the way is a mark of bankrupt­cy not at all ambiguous. But in Scotland, this mark of bankruptcy would always be too late; for with us there must be several steps of execution before a bankrupt be forc'd to abscond, letters of horn­ing, a charge, a denunciation, a caption. In this country therefore it was necessary to specify some mark of bankruptcy antecedent to absconding. The mark that would correspond the nearest to ab­sconding in England, is denunciation upon a horning; for after re­ceiving a charge, the debtor, if he have any credit, will be upon his guard against denunciation, supposing it to be established as a public notification of bankruptcy. But our legislature perhaps showed greater penetration, in commencing bankruptcy from a term of which even the bankrupt must be ignorant. Sudden bankruptcy is so rare as scarce to deserve the attention of the legislature. A man com­monly becomes bankrupt long before he is publicly known to be so by ultimate execution; and considering that the suspicious period, during which a debtor is tempted to act fraudulently, commences the moment he foresees the ruin of his credit, which is generally more than two months before his notour bankruptcy, it appears the safest course to tie up a bankrupt's hands during that period. Such retrospect from notour bankruptcy cannot be productive of any wrong, if it have no other effect but to void securities, which creditors obtain by force of execution, or by the voluntary deed of their debtor. And therefore the statute 1696, so far as concerns the commencement of bankruptcy, seems wise and political, and perhaps the best that is to be found in any country.

The statute adheres strictly to the principles of equity above laid down, so far as it voids every security granted to one creditor in pre­judice of the rest, by their debtor, within sixty days of his notour bankruptcy, or, in other words, after the commencement of his bank­ruptcy ascertained as above. But I must add, with regret, that it goes unwarily too far, when it voids also without distinction con­veyances made in satisfaction or payment of debt. To deprive a man of a subject, the property of which he has obtained bona side in [Page 312] lieu of a debt, is, as observed above, inconsistent with an inviolable rule of justice, That an innocent man ought never to be forfeited of his property: and therefore a conveyance of this nature ought not to be voided, unless the creditor receiving satisfaction be in the know­ledge of his debtor's bankruptcy.

But this is an error of small importance compared with what fol­lows. After the commencement of bankruptcy, ascertained as above, a bankrupt is prohibited to act partially among his creditors; and yet creditors are permitted, as in the act 1621, to act partially among themselves, and to prevent each other by legal execution. To per­mit a creditor to take by legal execution what he is prohibited to re­ceive voluntarily, is a glaring absurdity. Payment or satisfaction obtained bona fide, whether from the bankrupt himself, or by force of execution, ought to be sustained: but after the commencement of bankruptcy, there is the same justice for voiding a security ob­tained by execution, that there is for voiding a security obtained voluntarily from the bankrupt. And yet our legislature has de­viated so widely from justice, as to give full scope to execution even after notour bankruptcy. Nothing can be conceived more gross. It had been a wise regulation, that upon notour bankruptcy a factor should be appointed, to convert the bankrupt's effects into money, and to distribute the same among the creditors at the sight of the court of session. This regulation, established in Rome and in Eng­land, ought not to have been overlooked. But if it was not pala­table, our legislature ought at least to have prohibited more to be ta­ken by any execution, than a rateable proportion; for after notour bankruptcy no creditor can be in bona fide to take payment of his whole debt.

The injustice and absurdity of permitting a creditor to take by ex­ecution what he is discharged to receive from his debtor voluntarily, though left without remedy by our two capital bankrupt-statutes, have not however been altogether overlooked. And I now proceed to the regulations made to correct that evil, which, for the sake of connection, I have reserved to the last place, though one of these re­gulations comes in point of time before the act 1696. The great load of debt contracted during our civil wars in the reign of Charles I. and the decay of credit occasioned thereby, produced the act 62. parl. 1661, laying down regulations suited to the times, for easing debtors and restoring credit. Among other articles, ‘"All apprisings deduced since the 1st of January 1652, before the first effectual apprising, or after, but within year and day of the same, are ap­pointed [Page 313] to come in pari passu, as if one apprising had been deduced for the whole."’ This regulation is general without respect to bank­ruptcy. But whatever stretches may be necessary for a particular exigency, it is evident, that the regulation cannot be justified as a perpetual law, except upon supposition that all the apprisings are de­duced after the debtor is insolvent. A debtor while he is in good circumstances, may pay his debts or grant real securities in what or­der he pleases. By using this privilege he harms none of his credi­tors: they have no ground for challenging such a deed at the time when it is granted; and his supervening bankruptcy cannot afford them a ground of challenge which they had not at first. A security obtained by an apprising or adjudication is precisely similar. If the debtor be solvent when such judicial security is obtained by his cre­ditor, the other creditors suffer not by it; and the adjudger who has thus fairly obtained a security, must be intitled to make the best of his right, whether the debtor afterward become insolvent or not. I have reason therefore to place the foregoing statute, considered as perpetual, among those which have been enacted in the case of bank­ruptcy: and in order to fulfil the rules of justice, it is the duty of the court of session, as a court of equity, to consider it in that light. The involved circumstances of debtors and creditors at the time of the statute, made it a salutary regulation to bring in apprisers pari passu, even where the debtor was solvent, though evidently a stretch against justice: but to adhere strictly to the regulation at present, when there is not the same necessity, is to adhere rigidly to the words against the mind and intendment of the legislature; for surely it could not be intended, that a creditor should for ever be deprived of the preference he obtains by being the first adjudger, even though the other creditors are not hurt by that preference. That after the debtor's bankruptcy a creditor should not be permitted to take more than his proportion of the common fund, is extremely just; and so far the statute ought to be held perpetual. What farther is enacted to answer a particular purpose, ought to be considered as temporary; because the legislature could not mean it to be perpetual.

If then the foregoing statute be held to be perpetual, it must be confined to the case of bankruptcy; and in that view it deserves to be immortal. The first adjudication may be justly held a public mark or notification of the debtor's bankruptcy, warning the other creditors to bestir themselves; and a year commonly is sufficient for them to lead adjudications, which, by authority of the statute, will intitle each creditor to a proportion of the debtor's real estate. This [Page 314] was a happy commencement of a much wanted reformation. The court of session, taking example, ventured to declare by an act of sederunt *, That the priority of a creditor's confirmation shall afford no preference in competition with other creditors confirming within six months of the death of their debtor. By another act of sede­runt , All arrestments within sixty days preceding the notour bank­ruptcy, or within four months thereafter, are ranked par i passu; and every creditor who poinds within sixty days preceding the notour bankruptcy, or within four months thereafter, is obliged to commu­nicate a proportion to the other creditors suing him within a limited time . In the heat of reformation, the last mentioned regulation is carried too far. Poinding operates at once a transference of the property and a discharge of the debt; and supposing a poinder to be ignorant of his debtor's insolvency, which is frequently the case where the execution precedes the notour bankruptcy, there is no rule in equity more than at common law to oblige the poinder to com­municate any proportion to the other creditors. Nay, it is possible that a debtor may be solvent within sixty days of his notour bank­ruptcy: a poinding against him in that case, which wounds not the other creditors, ought not to afford them the shadow of a claim.

The principles of equity ripening gradually, our zeal for the act 1661 has increased; and there is a visible tendency in our judges to make the remedy still more complete. In order to that end, the court of session, as a court of equity, might have enlarged the time given by the statute for leading adjudications. The principles of ju­stice authorise a still bolder step, which is to put upon an equal foot­ing all adjudications that are led upon debts existing before the first adjudication. But the court of session, wavering always as to their equitable powers, have not hitherto ventured so far. Not adverting to an obvious doctrine, That in order to fulfil justice it is lawful to enlarge or improve means laid down in a statute, the court of session hath not attempted directly to enlarge the time for bringing in ad­judgers pari passu: but they do the same thing every day indirectly; for upon the application of any creditor, setting forth, ‘"That if the common induciae required in the processes of constitution and adju­dication be not abridged in his favour, he cannot hope to com­plete his adjudication within year and day of the adjudication first effectual,"’ the court, without requiring any cause to be assigned for the delay, give authority for adjudging summarily; which in ef­fect is declaring, that all adjudgers shall have the benefit of the sta­tute, [Page 315] provided the summons of adjudication be within year and day of the first effectual adjudication. It may be questioned whe­ther this is not too indulgent; for, as it appears to me, the extraor­dinary privilege of shortening the forms ought not to be indulged, unless the creditor can assign some good cause for his delay; be­cause the law ought not to be extended in favour of any man who suffers by his own fault or neglect. It is curious at the same time to observe, in what manner a court, like an individual, afraid of a bold step, will, to shun it, venture upon one not less bold in reality, though perhaps less in appearance: for to abridge or dispense with forms, salutary in themselves, and sanctified by inveterate prac­tice, is an act of authority not less extraordinary, than to enlarge the time afforded in a statute for ranking adjudgers pari passu.

But after all, the foregoing regulations, calculated to put credi­tors upon a level in the case of bankruptcy, are mere palliatives: they soften the disease, but strike not at the root. The court of ses­sion tried once a bolder and more effectual remedy, borrowed from the law of Rome and of England, viz. to name a factor for mana­ging and disposing of the bankrupt's moveable funds, in order that the price may be equally distributed among the creditors: and why that regulation was not made perpetual I cannot explain.

According to the method proposed in the beginning, nothing now remains but the operations of the court of session, to which I pro­ceed, beginning with decisions relative to the statutes, and conclu­ding with decisions founded on equity independent of the statutes. And first, the statute 1621 has been extended to a lease of land set to a trustee at an undervalue, in order that the bankrupt himself might enjoy the profits. A lease of this nature, though not comprehended under the words of the act, comes plainly under its spirit and inten­tion; and therefore it is the duty of a court of equity to extend the act to this case. A fraudulent bond granted by a bankrupt in order to withdraw from the true creditors a part of the fund for the bank­rupt's own behoof, is another example of the same kind. For, as Sir George Mackenzie observes in his explication of this act, ‘"Though neither tacks nor bonds be comprehended under the let­ter of the law, yet the reason of the law extends to them; and in laws founded on the principles of reason, extensions from the same principles are natural. And in laws introduced for obviating of cheats, extensions are most necessary, because the same subtile and fraudulent inclination that tempted the debtor to cheat his credi­tors, will tempt him likewise to cheat the law, if the wisdom and [Page 316] prudence of the judge do not interpose."’ A discharge granted by the bankrupt in order to cover a debt from his creditors for his own behoof, will also come under the act by an equitable interpreta­tion.

With respect to the evidence required in the first article of the sta­tute 1621, for detecting fraudulent deeds, the court of session hath assumed a power proper and peculiar to a court of equity. It has been forc'd to abandon the oath or writ of the partaker of the fraud, being a means altogether insufficient to answer the end proposed by the statute, and in place of it to lay hold of such evidence as can be had, according to the nature of the case. It is accordingly the practice of the court, after weighing circumstances, to presume sometimes in favour of the deed till fraud be proved, and some­times against the deed till a proof be brought of its being fair and honest. Thus a bond bearing borrowed money, granted by a bank­rupt to a conjunct and confident person, was presumed to be fairly granted for the cause expressed; and the burden of proving it to have been granted without any just cause, was, in terms of the act, laid upon the pursuer of the reduction *. Again, a disposition by a bank­rupt of his whole heritage to his son-in-law, upon the narrative of a price paid, was found probative, unless redargued by the disponee's oath . A disposition by a bankrupt to his brother, bearing to be for security of a sum instantly borrowed, was sustained; but admitting the cause expressed to be redargued by the disponee's oath. And the judges distinguished this case from that of a disposition bearing a va­luable consideration in general, which must be otherwise verified than by the disposition .

On the other hand, in a reduction upon the act 1621 of a bond bearing borrowed money granted by a bankrupt to his brother, the judges thought, that though bonds inter conjunctos may prove where commercial dealings appear, yet in the present case no such dealings were alledged, and the creditor's circumstances made it improbable that he could have advanced such a sum, and therefore the bond was not sustained as probative of its cause . A disposition of land by a bankrupt to his brother, bearing a valuable consideration in general, was not sustained as probative of its narrative in prejudice of prior [Page 317] creditors, but it was laid on the disponee to astruct the same *. And he having specified, that it was for a sum of money advanced in specie to his brother, which he offered to depone upon, the court found this not relevant . In a similar case, the disponee having produced two bonds due to him by the disponer, and offering to give his oath that these were the cause of the disposition, the court thought this sufficient .

A disposition by a bankrupt to a conjunct or confident person, re­ferring to a prior engagement as its cause, is not sustained unless the prior engagement be instructed. Thus an assignment made by a bankrupt to a conjunct and confident person, bearing to be a security for sums due to the assignee, was presumed to be in fraudem credito­rum, unless the assignee would bring evidence of the debts referred to in the deed . And the assignee specifying, that he took the assign­ment for behoof of a third party, one of the bankrupt's creditors, the assignment was sustained **. An assignment by a bankrupt to his brother, bearing to be a security for debts owing to him, was presumed gratuitous, unless the assignee would instruct otherwise than by his own oath that he was creditor ††. To support the narrative of a disposition by a bankrupt to his son, bearing for its cause certain debts undertaken by the son, it was judged sufficient that the son offered to prove, by the creditors mentioned in the dis­position, that he had made payment to them in terms of the disposi­tion ‡‡. A disposition by a bankrupt to his brother, bearing to be a security for certain sums due by bond, was thought sufficiently sup­ported by production of the bonds, unless the pursuer would offer to prove, that the bonds were granted after insolvency. Here no suspi­cious circumstances occurred, other than the conjunction itself; and if such a proof of a valuable consideration be not held sufficient, all commerce among relations will be at an end. It might upon the same footing be doubted, whether even a proof by witnesses of the actual delivery of the money would be sufficient, which might be done simulately, in order to support a bond, as well as a bond be granted simulately in order to support a disposition ‖‖. It will be [Page 318] observed, that some of the foregoing cases are of bonds granted after bankruptcy, as for borrowed money, which ought not to be sustained in equity. But the court of session, as will be seen afterward, is in the practice of sustaining such bonds, for no better reason than that they are not prohibited by the bankrupt-statutes.

With respect to the second article of the act 1621, prohibiting pay­ment to be made in prejudice of a creditor who is in cursu diligentiae, the court of session, considering the injustice of wresting from a cre­ditor, ignorant of his debtor's bankruptcy, a sum delivered to him in payment, ventured so far to correct the statute as to refuse to sus­tain a process raised against a creditor who had obtained payment, for delivering the money to the creditor first in execution, unless it could be verified, that at the time of the payment the debtor was commonly reputed a bankrupt *. A debtor commonly reputed a bankrupt will always be held such by his creditors; and a creditor knowing of his debtor's bankruptcy cannot justly take more than his proportion. Where payment is made before inchoated execu­tion, and yet within threescore days of notour bankruptcy, the court of session hath no occasion to extend its equitable powers to support such payment, which stands free of both statutes; for the statute 1621 challenges no payments but what are made after inchoated execution, and payments are not at all mentioned in the statute 1696. Payments after notour bankruptcy are in a different case: they are barred in e­quity, though not by the statute 1696.

The second branch of the act 1621, securing a creditor who has commenced execution against the partiality of his debtor, is so strict­ly interpreted by the court of session, that where a security is void­ed by a creditor prior in execution, the whole benefit is given to him, and the defendant who obtained the security is forfeited of it altoge­ther. And the act 1696 is so strictly interpreted, that moveables be­ing delivered to a creditor in satisfaction of his debt, the transaction was voided because delivery was made within sixty days of notour bankruptcy ; though, abstracting from the injustice of depriving an innocent man of his property, the court, in interpreting a rigorous statute, ought to have limited the words within their narrowest mean­ing, by finding that moveables, the commerce of which ought to be free, are not comprehended in the statute.

By the act 1696, as above observed, ‘"All dispositions, &c. grant­ed [Page 319] by a debtor within sixty days before his notour bankruptcy, in favour of a creditor for his satisfaction or security, preferring him before other creditors, are declared null and void."’ This clause admits a double meaning: it may import a total nullity; or it may import a nullity as far only as that creditor is preferred before others. The former meaning would be rational, supposing the creditors to be barred from execution as the bankrupt is from alienation: but as they are left free, the latter meaning ought to be adopted, as what answers the purpose of the legislature, and fulfils the rules of justice. And yet, I know not by what misapprehension, the former is adopted by the court of session. A disposition accordingly of this kind was void­ed totally; and other creditors, who had attached the subject by legal execution, were preferred, without giving the disponee as much bene­fit by his disposition as even to bring him in pari passu with the other creditors *. This is laying hold of the words of a statute, without regarding its spirit and intendment. It is worse: it is giving a wrong sense to an ambiguous clause, in opposition to the spirit and intend­ment. The obvious purpose of the act 1696 is not to deprive a bank­rupt altogether of the management of his affairs, for in that case a curator bonis must have been appointed, but only to bar him from acting partially. It clearly follows, that a court of equity, supporting the spirit of the law, ought not to have carried the reduction farther than to redress the inequality intended by the disposition. The court fol­lowed an opposite course, not less partial to the pursuers of the reduc­tion, than the disposition was to the defendant: and their decree ac­cordingly exceeded the bounds of justice on the one side, as much as the bankrupt's disposition did on the other. The solidity of this rea­soning will be clearly apprehended, in applying it to a security grant­ed by a debtor in good credit, but who, within sixty days thereafter, is a notour bankrupt. The creditor, being in optima side to take a se­curity in these circumstances, merits no punishment. Another credi­tor, however, anxious about his debt, attaches the subject by legal execution; and thus gets the start of the disponee, whose hands by the disposition are tied up from execution. Is it just or equitable to void the disposition altogether, and to prefer the other creditor?

With respect to particulars that come not under either of the bank­rupt-statutes, but are left to be regulated by equity, it is surprising to observe the fluctuation of the court of session between common law and [Page 320] equity. In many instances, the court hath given way to the injustice of common law without affording a remedy; for a very odd reason indeed, That no remedy is provided by statute. In other instances, the court, exerting its equitable powers, has boldly applied the reme­dy. I proceed to examples of both.

A sale by a notour bankrupt after the act 1696, was supported for the following reason, That it is not prohibited by the act 1696 *. Very true. But then, as above demonstrated, it is prohibited by ju­stice and by utility; and upon these media it ought to have been void­ed. The court went still farther, by sustaining a bond for money lent to a known bankrupt . Upon the statute 1696 it has been dis­puted, whether an act be challengeable where no subject is aliened, and yet a partial preference is given. The case was as follows. An heir▪apparent having given infeftments of annualrent, did thereafter grant a procuratory to serve himself heir, that his infeftment might accresce to the annualrent-rights. In a competition between these an­nualrenters and posterior adjudgers, it was objected against the pro­curatory, That it was granted by a notour bankrupt, and therefore null by the statute 1696; the purpose of which is to annul every par­tial preference by a bankrupt, direct or indirect. It was answered, That the statute mentions only alienations made by the bankrupt, and reaches not every act that may be attended with a consequential da­mage or benefit to some of the creditors. The court preferred the an­nualrenters . Had the servuce been before the bankruptcy, there could be no reason in equity against it: but a man, who, conscious of his own bankruptcy, performs any act in order to prefer one cre­ditor before another, is unjust; and the creditor who takes advantage of that act, knowing his debtor to be bankrupt, is partaker of the wrong. The court therefore denying a remedy in this case, acted as a court of common law, overlooking its equitable powers.

Opposite to the foregoing instances, I shall mention first a donation, the motive of which is love and favour to the donee, without any formed intention to wrong the creditors, though in effect they are wronged by it. That this case is not provided for in the statue 1621, is evident from every clause in it. Fraud only is repressed: not fraud in a lax sense, signifying every moral wrong by which a creditor is disappointed of his payment; but fraud in its proper sense, signifying a deliberate purpose to cheat creditors; that sort of fraud which is cri­minal [Page 321] and merits punishment: which is put beyond doubt by the fi­nal clause, inflicting a punishment fully adequate to fraud in its pro­per sense. But a gratuitous bond or alienation, of which the inten­tion is precisely what is spoke out, without any purpose to cover the effects from the creditors, is not a fraud in any proper sense, at least not in a sense to merit punishment. This then is left upon equity: and the court of session, directed by the great principle of equity Quod nemo debet locupletari aliena jactura, makes no difficulty to cut down a gratuitous bond or alienation granted by a bankrupt. With respect to a gratuitous bond, the court I believe has gone father: it has preferred the creditors upon an eventual bankruptcy, even where the granter was solvent when he made the donation. And indeed the court cannot do otherwise, without deviating from the principle now mentioned.

Next comes a security given by a bankrupt in such circumstances as not to be challengeable upon either of the statutes, being given, for example, before execution is commenced against the bankrupt, and more than sixty days before his bankruptcy becomes notorious. It is made out above, that a court of equity ought to void such a security, even though the creditor, ignorant of his debtor's bankruptcy, ob­tained the same bona fide. The court of session, it is true, hath not hitherto ventured to adopt this equitable regulation in its full extent; but the court hath made vigorous approaches to it, by voiding such security where-ever any collateral circumstance could be found that appeared to weigh in any degree against the creditor. Thus, a secu­rity given by a bankrupt to one of his creditors, who was his near re­lation, was voided, though the disposition came not under either of the bankrupt-statutes *. In the same manner, a disposition omnium bonorum, as a security to a single creditor, is always voided. And here it merits observation, that the court of session acting upon prin­ciples of equity, is more correct in its decrees, than where it acts by authority of the statutes; witness the following case. ‘"A debtor against whom no execution was commenced, having granted a dis­position omnium bonorum as a security to one of his creditors, another creditor arrested in the disponee's hands, and in the forthcoming insisted, that the disposition was null, and that the subject ought to be made forthcoming to him upon his arrestment. The court reduced to the effect of bringing in the arrester pari passu ."’ The [Page 322] following case, though varying in circumstances, is built upon the precise same foundation. Robert Grant, conscious of his insolvency, and resolving to prefer his favourite creditors, executed privately in their favour a security upon his land-estate, which in the same pri­vate manner he completed by infeftment. This security being kept latent, even from those for whom it was intended, gave no alarm, and Robert Grant did not become a notour bankrupt for many months thereafter. But the peculiar circumstances of this case, a real security bestow'd on creditors who were not making any demand, sei­sin given clandestinely, &c. were clear evidence of the granter's con­sciousness of his bankruptcy, as well as of his intention to act par­tially and unjustly among his creditors; and the court accordingly voided the security as far as it gave preference to the creditors therein named; November 10. 1748, Sir Archibald Grant contra Grant of Lurg.

After finishing the instances promised, another point demands our attention. With respect to an alienation bearing to be granted for love and favour, or made to a near relation, and therefore in case of bankruptcy presumed gratuitous, a doctrine established in the court of session by a train of decisions, appears singular. It is held, that the purchaser from such disponee, though he pay a full price, is in no better condition than his author, and that a reduction at the in­stance of the bankrupt's creditors will reach both equally. This doc­trine ought not to pass current without examination, for its conse­quences are terrible. At that rate, every subject acquired upon a lu­crative title is withdrawn from commerce for the space at least of for­ty years. What shall become of those who purchase from heirs if this doctrine hold? And if a purchaser from an heir of provision, for example, be secure, why not a purchaser from a gratuitous dis­ponee? What objection should lie against the purchaser is not ob­vious, considering that a purchaser even from a notour bankrupt is, in the practice of the court of session, held to be secure; which is at least a good argumentum ad hominem. The only reason urged in sup­port of this doctrine is, That a purchaser cannot pretend to be in bonafide when his author's right appears to be gratuitous, or is presumed gratuitous. I cannot perceive the weight of this reason. It is ob­vious to answer in the first place, That if we adhere to the act 1621, there can be no foundation for such reduction: for if, even in the case of a fraudulent conveyance to an interposed person, a purchaser bonafide from that person be secure, what doubt can there be that a pur­chaser from a gratuitous disponee is also secure, where the gratuitous [Page 323] disponee is innocent of any fraud? In the next place, Considering this matter upon the principles of equity, a gratuitous deed is not subject to reduction unless granted by a bankrupt; and to put a man who purchases from a gratuitous disponee in mala fide, the bankruptcy ought to be known to him as well as that his author's title is gratui­tous. And yet I find not that the purchaser's knowledge of the bank­ruptcy has ever been held a necessary circumstance; one case except­ed, reported by Fountainhall *: ‘"It is not sufficient to reduce the pur­chaser's right that he knew his author's relation to the bankrupt, unless he was also in the knowledge of the bankruptcy; because there is no law to bar a man in good circumstances from making a donation to a near relation. And knowledge, an internal act, must be gathered from circumstances, the most pregnant of which is, that the granter of the gratuitous deed was at the time held and reputed a bankrupt."’ But, in the third place, Supposing the bank­ruptcy known to the purchaser, I deny that this circumstance can support the reduction either at common law or in equity: it is made evident above, that a gratuitous disponee ignorant of his author's bankruptcy, is not bound to yield the subject to the bankrupt's cre­ditors, but only to account to them for the value; and when he dis­poses of the subject for a full price, this sale, so far from disappoint­ing the obligation he is under to the bankrupt's creditors, enables him to perform it. In one case only will the purchaser's right be voided in equity; and that is where the gratuitous disponee and the purchaser from him are both of them in mala fide: a man who takes a gratuitous disposition knowing his author to be bankrupt, is guilty of a wrong, which binds him in conscience to restore the subject itself to the bankrupt's creditors; and the person who purchases from him knowing that he is so bound, being also guilty, is for that reason bound equally to restore.

The statute 1696, voiding all dispositions, assignments, or other deeds, granted by a bankrupt to a favourite creditor, seems to have no subjects in view but what are locally in Scotland, within the juris­diction of the court of session. And indeed it would be fruitless to void a disposition granted by a Scotch bankrupt of his foreign effects; because such effects will be regulated by the law of the place, and not by a decree pronounced in Scotland. Supposing then such a disposi­tion to be granted, is there no remedy? It is certainly a moral wrong for a bankrupt to convey to one of his creditors what ought to be dis­tributed [Page 324] among all; and the creditor who accepts such security knowing his debtor's insolvency, is accessory to the wrong. Upon this ground, the court of session, though they cannot void the securi­ty, may, as a court of equity, ordain the favourite creditor to repair the loss that the other creditors have sustained by it; which will ob­lige the favourite creditor either to surrender the effects, or to be ac­countable for the value. And this was decreed in the court of session, July 18. 1758, Robert Syme clerk to the signet contra George Thom­son tenant in Dalhousie.

Of late years it has been much controverted, whether a disposition omnium bonorum by a notour bankrupt to trustees for behoof of his whole creditors, be voidable upon the bankrupt-statutes. Formerly such dispositions were sustained, as not being prohibited by any clause in either of the statutes. But the court at last settled in the follow­ing opinion, ‘"That no disposition by a bankrupt can disable his cre­ditors from doing diligence *."’ This opinion, founded on justice and expediency, though not upon the bankrupt-statutes, ought to govern the court of session as a court of equity. It belongs not to the bankrupt, though proprietor, to direct the management of his funds; but to his creditors, who are more interested in that manage­ment than he is. It belongs therefore to the creditors to direct the method by which the funds shall be turned into money for their pay­ment; and if they chuse to have the effects managed by trustees, it is their privilege, not the bankrupt's, to name the trustees. It fol­lows, however, from this consideration, that those trust-rights only which are imposed by bankrupts upon their creditors, ought to be voided. There lies evidently no objection, either at common law or in equity, against a disposition omnium bonorum solicited by the credi­tors, and granted by the bankrupt to trustees of their naming. On the contrary, a trust-right of that nature, which saves the nomina­tion of a curator bonis, as in Rome, or of commissioners, as in Eng­land, merits the greatest favour, being an expeditious and frugal method of managing the bankrupt's funds for behoof of his creditors. And supposing such a measure to be concerted among the bulk of the creditors, a court of equity ought not to regard a few dissenting creditors who incline to follow separate measures. The trust-right is good at common law, being an alienation by a proprietor; and it is good in equity as being a just act. It must accordingly afford a pre­ference [Page 325] to the creditors who lay hold of it. A dissenting creditor may, if he please, proceed to execution against his debtor, and he may at­tach the imaginary reversion implied in the trust-disposition: but such peevish measures cannot hurt the other creditors who are secured by the trust-right; for if that right be not voidable, it must be preferred before an adjudication, or any other execution, at the instance of a dissenting creditor.

CHAP. VI. Powers and Faculties.

EVERY right, real or personal, is a legal power to perform certain acts. In this extensive sense there are numberless powers. E­very individual hath power over his own property, and over his own person; some over another's property or person. To trace all these powers would be the same with writing a body of law. The powers under consideration are of a singular kind. They are not rights, properly speaking, but they are means by which rights can be created, a power, for example, to make a man debtor for a sum, a power to charge his land with debt, a power to redeem land from the purchaser.

These powers are of two kinds; powers that arise from consent merely, and powers that arise from property. Where a man dispones his estate to his heir absolutely and irredeemably, impowering a third person to charge the heir or the land with a sum, this is an example of the first kind: a power thus created is founded on the consent of the heir, signified by his acceptance of the disposition. A power re­served in a settlement of a land-estate, to alter the settlement, or to burden the land with debt, is an example of the other kind: by such settlement the property is understood to be reserved to the maker, as far as to impower him to alter or to burden. In this view, these powers may be termed personal and real.

To explain a power of the first kind, which is properly termed a facul­ty, in contradistinction to a power founded on property, it must be con­sidered, 1 mo, That with regard to pecuniary interest, a man may subject himself to the power of another: he may gratuitously bind himself to pay a sum of money; or he may impower any person to burden him with a sum. 2do, He may also subject his property to the power of another: a proprietor can impower any person to charge his land [Page 326] with an infeftment of annualrent; and a real right thus established is good even at common law. Thus it is laid down by our writers, that the proprietor's consent will validate a resignation made by one who hath no right *, and will validate also an annualrent-right granted by one who is not proprietor . 3tio, Though an annual­rent-right thus granted by a person having a faculty to burden the land, is a real right, not less complete than if granted by the pro­prietor; yet the faculty itself is not a real right: it may indeed be exerted while the granter continues proprietor; his consent makes it effectual: but his consent cannot operate after he is divested of his property, more than if he never had been proprietor: in that case it is a consent by one to burden the property of another; an act that can have no effect in law. Thus a power granted by a proprietor to charge his land with a certain sum, ceases by his selling the land be­fore the faculty is exerted. Nor in strict law can such faculty be exerted after the granter's death. Whether equity may not in this case interpose, is more doubtful. Let us suppose, that a man makes a deed, impowering certain persons to name provisions to his young­er children after his death, and to burden his heir and land-estate with the payment; leaving at the same time his estate to descend to his heir at law by the course of succession. This deed cannot be effectual at common law; because it is inconsistent with the nature of property that a burden can be imposed upon the estate of any man without his consent. It seems however just, that a court of equity should interpose to make so rational a faculty effectual against the heir, though not to charge the estate. The faculty, it is true, can­not be considered as a debt due by the ancestor to subject the heir by representation: but it is the will of the ancestor to burden the heir with provisions to his younger children; and in equity the will of the ancestor ought to be a law to the heir who succeeds by that very will, implied though not expressed. In the law of England accor­dingly, where lands are devised to be sold for younger childrens portions, and the executor dies without selling, the heir is compelled to sell. And where lands were ordered to be sold for payment of debts, without impowering any person to sell, it was decreed that the heir should sell . But a settlement of an estate made by the proprietor upon any of his blood-relations that his wife should think proper to nominate after his death, is effectual at common law: for [Page 327] there is nothing in reason or in law to bar a proprietor from making a settlement upon any person he has a mind, whether named by himself, or by another having his authority. The settlement ex­cludes the heir at law, and the person named has a good title by his deed *.

That sort of power which is a branch of property, is in a very dif­ferent condition. It is in its nature effectual against all singular suc­cessors, even bona side purchasers; for a disponee to whom the property is conveyed to a limited effect only, cannot bestow upon another a more extensive right than he himself has.

It may be laid down as a general rule, That powers reserved in a disposition of land, the most limited as well as the most extensive, are all of them branches of the property. To verify this rule, it must be premised, that all the powers a man hath over his own subject are involved in his right of property; and that the meaning of a reser­vation, is not to create a new right, but only to limit the right that is convey'd. From these premises it clearly follows, that the reserva­tion of any power over the land must so far imply a reservation of the property: and this must hold, however limited the reserved power be, or however extensive, unless it be expressed in clear terms, that a faculty only is intended. A separate argument concurs for this rule. Human nature, which, in matters of interest, makes a man generally prefer himself before others, founds a natural, and therefore a legal, presumption, that when a disponer reserves to him­self any power over the subject disponed, his intention is to reserve it in the amplest and most effectual manner. And hence, in dubio, the presumption will lie for a power properly so called, in opposition to a faculty. Thus a reserved power to charge the estate disponed with a sum, though the most limited power that can be reserved, is held to be a reservation of the property, so as to make the reserved power good even against a purchaser from the disponee. A man disponed his estate to his eldest son, reserving a power ‘"to affect or burden the same with a sum named for provisions to his children."’ The son's creditors apprised the estate, and were infeft. Thereafter the disponer exerted his reserved power, by granting to his children heritable bonds, upon which they also were infeft; and in a compe­tition they were preferred : the reserved power was justly deemed a branch of property, which made every deed done in pursuance of it [Page 328] a preferable right upon the land. James Henderson, in his eldest son's contract of marriage, disponed to him the lands of Grange, ‘"reserving to himself power and faculty, even in articulo mortis, to burden the land with 8000 merks to any person he should think fit."’ In his testament he legated the said 8000 merks to his three younger sons; who, in a ranking of the eldest son's creditors, were preferred before all the creditors *.

But though a faculty regularly exerted while the granter conti­nues proprietor, will lay a burden on the land effectual against pur­chasers, and though a power will have the same effect at whatever time exerted, it follows not that every exertion of a power or fa­culty will be so effectual: which leads us to examine in what man­ner they must be exerted in order to be effectual against purchasers. That land may be charged with debt without infeftment, or with­out giving a title in the feudal form, is evident from a rent-charge, and from a clause in a conveyance of land burdening the land with a certain sum . That without infeftment such a burden may be laid on land by means of a power or faculty to burden, seems equal­ly consistent; and were there a record of bonds granted in pursuance of such powers, there would be nothing repugnant to utility more than to law in sustaining them as real rights. But as no record is appointed for bonds of this kind, it is a wise and salutary regula­tion to sustain none of them as real rights, unless where created in the feudal form to produce infeftment; which brings them under the statute 1617, requiring all seisins to be recorded. Where land stands charged with a sum by virtue of a clause contained in the disposition, no inconvenience arises from supporting this right, according to its nature, against all singular successors; for a purchaser from the dis­ponee is put upon his guard by the disposition containing the burden, which disposition makes part of his title-deeds. But a power or fa­culty, could it be exerted without infeftment, might occasion great imbarrassment: the power or faculty, it is true, appears on the face of the disposition, which is a title-deed that must be delivered to a purchaser; but then a purchaser has no means to discover whether the power or faculty be exerted, or to what extent. Nay further, if a simple bond be held an exertion, there can be no limitation: for bonds referring to the faculty may be granted for L. 10,000, though the faculty be limited to the twentieth part of that sum. And such uncertainty would put the land extra commercium du­ring [Page 329] the space of the long prescription, commencing at the death of the disponer, who reserved to himself the power of burdening the land. The foregoing regulation is accordingly in strict observance. By the decision mentioned above, Creditors of Mouswell contra Chil­dren, it appears, that when a reserved power to burden land is regu­larly exerted, by granting an infeftment of annualrent, such annual­rent-right is preferred even before a prior infeftment derived from the disponee: but a simple bond is never so preferred. Thus a man who disponed his estate to his eldest son, reserving to himself a power to burden the same with 5000 merks, granted thereafter simple bonds for that sum to his wife and children, proceeding upon the narra­tive of the reserved power. After the date of these bonds, the dis­ponee contracted debts, which were established upon the estate by in­feftments. A competition arising between these two sets of creditors after the disponer's decease, the disponee's creditors were preferred upon their infeftments *. In a disposition to the eldest son, the fa­ther having reserved power to charge the estate with wadsets or in­feftments of annualrent to the extent of a sum certain, a simple bond referring to the faculty was not deemed a real burden; and for that reason it was not held to be effectual against a donatar of the son's forfeiture . But where the disponer reserves a power to burden the land with a sum to one person named, the heir-male of a second mar­riage for example, and thereafter grants a simple bond to that person referring to the reserved power; it seems not unreasonable that this bond should be deemed a real burden effectual against purchasers. For here there is no uncertainty to put the land extra commercium: the burden can never exceed the sum specified in the disposition; and after the disponer's death, a purchaser, by inquiring at the person na­med, has access to know whether and to what extent the power has been exerted.

If the foregoing regulation hold in reserved powers, there can be no doubt of it with respect to faculties properly so called. The fol­lowing decisions I think belong to this class. A purchaser of land took the disposition to himself in liferent, and to his son nominatim in fee, with power to himself to dispone, wadset, &c. He thereafter granted a simple bond, upon which the creditor adjudged the estate after the son was divested, and a purchaser infeft. The adjudication was evidently void, and the bond was decreed not to be a proper [Page 330] exertion of the faculty to burden the estate, or be effectual against singular successors *. This is properly an instance of a faculty, be­cause the power which the father provided to himself could not be founded on the property which was never in him. Again, a pur­chaser of land having taken the disposition to himself in liferent, and to his son nominatim in fee, with a faculty ‘"to burden, contract debt, and to sell or otherwise dispose at his pleasure,"’ did first grant a simple bond, declaring it a burden on the land, and there­after sold the land. The purchaser was preferred, the bond not be­ing a real burden on the land .

The cases above mentioned are governed by the rules of the com­mon law: and as a bona fide purchase for a valuable consideration is the highest title of property, this title, if good at common law, will never be impugned in equity; and for that reason, a power to bur­den, when it enters the lists against such a purchase, is confined within the narrowest bounds. A faculty to impose a personal bur­den, stands upon more advantageous ground: where a valuable con­sideration has been given, it is supported in equity beyond the bounds of common law. In particular, where the will of the per­son who reserves the faculty appears to be more extensive than the reserving words, equity interposes to give the faculty its intended ef­fect. Thus in a gratuitous disposition of a land-estate, a power re­served to burden the same with sums to a certain extent, has evi­dently a valuable consideration; and yet this power will not at com­mon law intitle the disponer to subject the disponee personally: but the disponee will be liable in equity, because it could not have been the intention of the disponer, reserving power over the land, to ex­clude himself from a power of burdening also the disponee; and therefore it must have been an oversight in the writing that power was not reserved to burden the disponee as well as the land. And hence in the decisions above mentioned, Rome contra Creditors of Graham, Sinclair contra Sinclair of Barrack, and Ogilvies contra Turnbull, though a simple bond granted in pursuance of a power to burden the land was held not to be a real right; it was held how­ever, from the implied will of the deceased, to be a burden upon the disponee personally. And in like manner, a simple bond grant­ed in pursuance of a reserved power to burden the land disponed, was found effectual against the disponee personally, so as to support [Page 331] an adjudication of the land against the disponee after the disponer's death *. But a faculty granted to a third person for his own be­hoof without any valuable consideration, is in a different condition: he is in pari casu with the disponee, the rights of both being by sup­position gratuitous. In this case it appears that the faculty ought not to be extended beyond the words of the grant.

Supposing now a simple bond to be granted without referring to the reserved faculty, will this bond be in equity deemed an exertion of the faculty, yea or not? If the granter have no other fund of payment, this circumstance infers a rational presumption that he in­tended an exertion of the faculty: if he have a separate fund, the presumption ceases, and that fund only must be attached for pay­ment. But again, what if the separate fund be not altogether suffi­cient? In this case a court of equity may justly interpose to make what is deficient effectual by means of the reserved faculty, in order to fulfil the will of the person who granted the bond. Thus a man, upon the narrative of love and favour, having disponed his estate to his eldest son, reserving a power to burden the estate to the extent of a sum named, granted thereafter a personal bond of provision to his children without any relation to the reserved power. In a suit for payment against the disponee's representatives it was objected, That the disponer at the date of the bond had an opulent fund of move­ables, and that there is no presumption he intended to charge with this debt either his son or the estate disponed. The disponer▪s will was presumed to be, that the bond should burden his executors in the first place, and the disponee in the second place . By marriage-articles the estate was provided to heirs-male, with power to burden the estate with a sum named for the heirs of a second marriage. The proprietor contracting a second marriage, made a provision for the children of that marriage, burdening his heir with the same, but not charging his estate in terms of the reserved power. At common law the estate was not subjected, because the provision was not made a burden upon it; nor was the heir subjected, because the reserved power intitled the granter to burden the estate only. The court steered a right course in equity: the heir was made liable ultimo loco after his father's other estate should be discussed .

It has been questioned, whether a reserved power to charge with a sum the land disponed, can benefit a creditor whose debt was con­tracted before the reserved power was created. The court thought [Page 332] it reasonable that this power should be subjected to the disponer's debts, whether prior or posterior *. But it is certainly a mistake in principles to subject a power or faculty, like a corpus, to the payment of debt. A power to charge an estate with debt, being strictly per­sonal, is incommunicable to a creditor or to any other, even during the life of the person privileged; not to talk of his or her death. E­quity however rules, that a power or faculty should be available to creditors, prior as well as posterior: for it is the duty of a debtor to use all lawful means for paying his debts, whether by selling his goods or exerting his faculties; and if he unjustly refuse, equity will hold the faculty as exerted for the benefit of the creditors. In the present case, the creditors will have access to the land for their pay­ment, as if the debtor had exercised his faculty, and burdened the land with the sum mentioned, payable to them. But if the credi­tors lie dormant during their debtor's life, and make no step to avail themselves of his reserved faculty, the faculty dies with him, and they can take nothing by it. A man disponed to his sons of the se­cond marriage several parcels of land, ‘"reserving to himself full power and faculty to alter and innovate, and to contract debt as fully and freely as if the entire fee were in him."’ The question occurred, Whether these disponees were liable to their father's per­sonal debts contracted before the existence of the said power; and the affirmative was decreed . But in cases of this nature, the dis­ponee, even where he is heir-apparent, is liable in valorem only : for the disponee is not liable at common law; and equity subjects no man farther than in valorem of the subject he receives.

The exertion of a reserved power to charge land with a sum, re­quires a formal deed; because every act of will concerning land, conveying the property or burdening it, must be declared by a for­mal writing: but the exertion of a faculty to charge a man perso­nally with a sum, seems not to require writing. It is sufficient that the act of will be proved by witnesses or other satisfactory evidence. Thus a man settled his estate on his eldest son, reserving a power, by deed or will under seal, to charge the land with any sum not ex­ceeding L. 500. He prepares a deed appointing the L. 500 to his younger children, and gets it ingrossed, but dies before it is signed or sealed. This in equity shall amount to a good execution of his power, the substance being performed . Land cannot be charged [Page 333] but by a formal deed; because what is required by common law cannot be overturned by a court of equity: but this court may sup­ply a defect in common law, by subjecting the heir personally upon an incompleted deed, which, though not regarded at common law, is satisfactory evidence of will. In one case the court of session made a much wider step, which was to find the disponee liable for the sum in a reserved power, though the disponer had not used his power by granting a bond, nor so much as showed any will to ex­ert it *. Though this was a most favourable case, the power reser­ved being to provide younger children, it was a stretch however that even equity cannot justify. For what better evidence need a man give of his resolution not to exert a power or faculty, than his forbearing to exert it? If so, here is a judgement that contradicts will in place of supporting it.

A power granted to distribute a sum or a subject among children, or others, is limited in equity to be exercised secundum arbitrium boni viri, unless an absolute power be expressed in the clearest terms. Thus a man devised to his wife his personal estate upon trust and confidence, ‘"That she should not dispose thereof but for the benefit of her children."’ She by will gave one but five shillings, and all the rest to another. The court set aside so unequal a distribution . A man by his will directed that his land should descend to his daugh­ters, ‘"in such shares and proportions as his wife by deed in writing should direct and appoint."’ The wife makes an unequal distribution. The court at first declared the circumstances must be very strong, as something of bribery and corruption, that would take from the wife a power given her by the will; but afterward declared the case was proper for equity, and that the plaintiff might be relieved. For as the plaintiff was allowed but a small proportion, she might for any causeless displeasure have been put off with one barren acre only; that the court in such a case would have had a jurisdiction, and therefore here also .

Whether and in what cases a reserved power or faculty can effec­tually be exercised on deathbed, has frequently been agitated in the court of session. One point appears clear, that a reserved power to alter or burden on deathbed, contained in a disposition to a stranger, may be exercised on deathbed, supposing always the granter to be sanae mentis. And the reason is, that the stranger [...]aying hold of the disposition, must submit to its qualities, and cannot object to the [Page 334] conditions upon which it is granted. The great difficulty is where the settlement is upon the heir, who is alioqui successurus; as to which our decisions seem not to be uniform, nor any good rule laid down by our writers. If the heir have not by acceptance of the disposition consented to the burdening clause, his privilege of challenging a bur­den laid upon him on deathbed, remains entire. But if he have taken infeftment upon the disposition, and be in possession, which implies his consent to every clause in the deed, will not this consent bar him from objecting to the faculty, though exerted on deathbed? This requires deliberation. What distinguishes an heir from a stran­ger is his dependence upon the predecessor for the estate, leaving him no freedom of choice: he must submit to the will of his pre­decessor under the peril of exheredation. But does this dependence presume co-action in every transaction between a man and his heir? This can hardly be maintained; for what if the reserved faculty be to burden the estate with a moderate provision to younger children, or to do any other pious or rational act? In such a case, no good man would with-hold his consent; and therefore in such a case there is no ground for presuming the heir's consent to have been extorted from him. This hint leads us to a distinction in answering the foregoing question. If the heir's consent be voluntary, such as he would have given in a state of independence, it must be effectual both in law and equity to support the deathbed-deed. If it be ex­torted by fear of exheredation, it may be good at common law, but it will be voided by a court of equity.

But this distinction, however clear in theory, seems to be not a little difficult in practice; for what criterion have we for judging in what cases this consent is voluntary, in what cases extorted? The expiscation may be intricate, but it is necessary. Where a man set­tles his estate upon his eldest son with a reserved power to alter even on deathbed, no rational man will willingly submit to be in so preca­rious a state; and therefore the heir's consent will be presumed the ef­fect of extortion. On the other hand, where a man, settling his e­state upon his eldest son, reserves only power to burden it with a mo­derate sum to his younger children, this is a fair settlement, by which the heir gets more than he gives; and therefore his consent may safe­ly be presumed voluntary. Hence in general, the heir's consent to a reserved power that bears hard upon him, will always be presumed to have been extorted: his consent, on the contrary, to a reserved power that is proper and rational, will always be presumed voluntary.

This distinction gives me the greater satisfaction, when I find that it [Page 335] has had an influence upon the decisions of the court of session, though perhaps imperceptibly. A reserved power to alter upon deathbed a disposition granted to an eldest son, has in no instance been support­ed against the heir's reduction, even where he accepted the disposi­tion. But the exercise upon deathbed of a reserved power that is pro­per and rational has generally been supported. Take the following examples. The exercise of a reserved faculty to burden with a mo­derate sum an estate disponed to an heir, was sustained, though the faculty was exerted upon deathbed *. A man having disponed his e­state to his eldest son, with the burden of all provisions to his young­er children granted or to be granted, a bond granted to one of his daughters in lecto, was sustained against the heir who had accepted the disposition .

I shall close this chapter with a separate point, concerning powers given to a plurality, whether in exercising such powers the whole must concur, or what number less than the whole may be sufficient. If the persons be named jointly, the will of the granter is clear, that the whole must concur, because such is the import of the word jointly. To say that any number less than the whole may be sufficient, is in other words to say, that a nomination to act jointly is the same with a nomination to act separately.

But though all must concur, it follows not that they must all agree. If they be all present, the will of the maker naming them jointly is fulfilled; and what remains is, that the opinion of the majority must govern the whole body. ‘"Celsus, lib. 2. Digestorum, scribit, Si in tres fuerit compromissum, sufficere duorum consensum, si praesens fuerit et tertius: alioquin, absente eo, licet duo consentiant, arbi­trium non valere; quia in plures fuit compromissum, et potuit praesentia ejus trahere eos in ejus sententiam. Sicuti tribus judici­bus datis, quod duo ex consensu, absente tertio, judicaverunt, nihil valet: quia id demum, quod major pars omnium judicavit, ratum est, cum et omnes judicasse palam est ."’

The next question is, When a plurality are named without adding the term jointly, what is the legal import of such nomination? Whe­ther is it understood the will of the maker that they must act jointly, or may act separately? Stair resolves this question by an argument not less plain than persuasive: ‘"A mandate (says he) given to ten [Page 336] cannot be understood as given to a lesser number. To give a man­date to Titius, Seius, and Maevius, cannot be the same with giving it to any two of them."’ Hence it may be assumed as a rule at com­mon law, That a number of persons named in one deed to act in the same affair, are understood to be named jointly where the contrary is not expressed.

How far in this matter common law is subjected to the correction of equity, we next proceed to inquire. When a number of persons are named jointly to perform any work, the whole must concur in e­quity as well as at common law. For here the will is clearly expres­sed, and a court of equity hath no power to vary from will. Thus two tutors being named jointly by a man to his heir, it was decreed, that the office was vacated by the death of one of them *.

A plurality named for carrying on any particular affair without the addition of jointly, affords a large field for equitable considerations. We have seen that at common law the term jointly is always implied or presumed. But in particular cases there are many circumstances which a court of equity will lay hold of to overbalance this presump­tion; to reduce which under any general rule is searce practicable: circumstances are seldom precisely the same in any two cases, and for that reason each case must be ruled by its own circumstances. All that can be said in general is, that the common law ought to take place, unless it can be clearly shown that the maker did not intend to confine his nominees to act jointly.

Since general rules cannot be expected, what remains is to state cases the most opposed to each other, and which therefore admit of different considerations. And, in the first place, If I name a plurali­ty to perform any act that is to bind or affect me, equity as well as common law requires that the nominees act jointly. In cases of that nature, there cannot readily occur any circumstance to infer it to be my will that they may act separately: for if any one of the nominees refuse to accept, or die after acceptance, it is my privilege to make a second nomination, or to forbear altogether; and it is not readily supposeable that any man will give away his privilege, unless it be so declared. Thus an award pronounced by two arbiters and an overs­man named by them, was declared void; because it proceeded upon a submission to four arbiters who were impowered to name an overs­man . And when a plurality are constituted sheriffs in that part by the court of session, no sentence can be pronounced by any of them [Page 337] without the rest; because (as the author expresses it) he being but one colleague joined to others, hath no power to pronounce sentence without their consent *. This holds in curators, because they are elected by the minor himself: if any of them refuse to accept, or die after acceptance, it is no hardship that the nomination should be void, because it is in the minor's power to renew the commission. But where the curators named are many in number, it will scarce be held the minor's intention to adhere to the common law by confining them to act jointly. In this case it appears a more natural presump­tion, that the purpose of naming so great a number was to provide against death or non-acceptance. And accordingly an act of curato­ry was sustained, though seven only accepted of the eight that were named . Where in an act of curatory a quorum is named, there can be no doubt that the act is void if a sufficient number do not ac­cept to make the quorum . For here the will of the minor is expressed in clear terms.

There is much greater latitude for interpretation of will with re­spect to powers intended to be exercised after the granter's death. Stair explains this matter extremely well in the following words: ‘"A mandate inter vivos giving power is strictly to be interpreted, be­cause the nominees failing, the power returns to the mandant. But power given by a man in contemplation of death cannot re­turn, and therefore he is presumed to prefer all the persons nomi­nate to any other that may fall by course of law ."’ This doc­trine is finely illustrated by a nomination of tutors. Where they are named jointly, each must concur in every act, and consequently the death or non-acceptance of any one voids the nomination; for such is the meaning of a joint commission to a plurality: but where a number of tutors are named without adding the term jointly, the tutory is supported by an equitable interpretation while any one re­mains alive: the preference given to them shows it to be the will of the deceased, that the administration should be carried on by any one of the nominees rather than by the tutor-in-law. ‘"For were it other­wise, the more guardians are appointed for the security of the in­fant, the less secure he would be, because upon the death of any one of them the guardianship would be at an end **."’ Thus three tutors being named without specifying conjunctly or severally, and one only having accepted, it was decreed, that the whole office was de­volved [Page 338] on him *. And five tutors being named as above, without specifying conjunctly or severally, the nomination was sustained though two only accepted .

It is a very different case, where it is declared, that a certain num­ber of the tutors named, termed a quorum, must concur in every act: for if by death or non-acceptance the number be brought so low as not to make a quorum, it follows from the declared will of the maker, that the tutors existing cannot act; and therefore that the nomina­tion is void. It is possible indeed, that the death or non-accept­ance of so many as not to leave a quorum, may have been a casus incogitatus which the maker would have provided for had he fore­seen the event. But this is altogether conjectural: and suppo­sing it certain, yet here deficit voluntas; and in a deed which derives its obligatory force from will solely, without any other cause, it is beyond the reach of equity to supply the defect of will, which would land in making a will for a man who made none for himself. The same reasoning is applicable to a nomination of tutors requiring expressly to every act the concurrence of one of them, termed a sine quo non. And yet in several instances, so much has the court of session been inflamed with what have been reckon­ed equitable considerations, that neither the failing of a quorum, nor even of the sine quo non, were deemed sufficient to void the nomina­tion; for the court conjectured it to be the will of the deceased, to trust any of the persons named rather than the tutor-in-law . But this stretch of equity was afterward corrected in the following case. In a nomination of tutors by a man to his children, his wife was named for one, and was so much distinguished as to be declared sine qua non. But she by a second marriage having rendered herself in­capable of the office, the question occurred, Whether this incident did not void the nomination altogether? And the court declared the no­mination void .

But though with respect to a quorum, or a sine quo non, the defect of will cannot be supplied, it is undoubtedly the privilege of a court of equity to supply any defect in words, in order to make the will effectual. Of this take the following curious instance. A gentleman [Page 339] having named his spouse, his brother, and several others, to be tu­tors and curators to his only child, ‘"appointed, that of those who should accept, and survive, the major part should be a quorum; that his spouse should be sine qua non; and in case of her death or incapacity, his brother; but that by the death or incapacity of ei­ther, the tutory and curatory should not be dissolved, but be con­tinued with the other persons named, as long as any one of them remained alive."’ The only event omitted to be provided for was that which happened, viz. the widow's refusal to undertake the of­fice, which brought on the question before the court of session, Whe­ther the nomination could notwithstanding subsist; or, Whether it was void to make way for the tutor-in-law. The court unanimously held it undoubted law, the above mentioned decisions notwithstanding, that the failure of any one of a plurality of tutors named jointly un­hinges the nomination, and still more the failure of that person who is named sine quo non, or the failure of a quorum: but, in the present case, that it appeared the intention of the father to continue his no­mination as long as any of the persons named should exist; that this is expressed in clear terms with respect to the death or incapacity of the sine quibus non; and that the same must be understood his will in the case of their non-acceptance, because the cases are so parallel, as that no man could think of making a difference; and consequently that here there is no defect of will, but of words only, occasioned by the carelessness or inaccuracy of the writer. The nomination accor­dingly was decreed to subsist *.

I proceed to examples of a different kind. A man having left 2500 merks to his children, impowered four friends named to divide the same among the children. After the death of one of the four, a divi­sion made by the three survivors was not sustained, and the children accordingly were decreed to have each of them an equal share . Here the four being named in the same deed, and to concur in the same act, were understood to be named jointly; and as there was no cir­cumstance to infer that the granter intended to impower any number less than the whole to make the division, there could be no reason for varying from the rule of common law.

Helen Cuningham left 4000 merks to her grandchildren, to be employed for their behoof at the sight of five persons named, of which number their father and mother were two. This sum was lent