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Henry Home, Lord Kames, Principles of Equity [1760]

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Henry Home, Lord Kames, Principles of Equity. The Third Edition. Edited and with an Introduction by Michael Lobban (Indianapolis: Liberty Fund, 2014). http://oll.libertyfund.org/titles/2644

About this Title:

Principles of Equity was first published in 1760 is Kames most lasting contribution to jurisprudence. He sought to explain the distinction between the nature of equity and common law and to address related questions, such as whether equity should be bound by rules and whether there should be separate courts of law and equity. The Principles is divided into three books. The first two, “theoretical,” books examine the powers of a court of equity as derived from justice and from utility, the two great principles Kames felt governed equity. The third book aims to be more practical, showing the application of these powers to several subjects, such as bankrupts.

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Table of Contents:

Edition: current; Page: [i]
principles of equity
Edition: current; Page: [ii]

natural law and enlightenment classics

Knud Haakonssen,

General Editor

Edition: current; Page: [iii]
lf1635_figure_001.jpg

Henry Home, Lord Kames

Edition: current; Page: [iv] Edition: current; Page: [v]
natural law and enlightenment classics
Principles of Equity
Henry Home, Lord Kames
The Third Edition
Edited and with an Introduction by Michael Lobban
Major Works of Henry Home, Lord Kames
liberty fund
Indianapolis
Edition: current; Page: [vi]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

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Frontispiece and cover (detail): Portrait of Henry Home, Lord Kames, by David Martin. Reproduced with permission of the National Galleries of Scotland.

Library of Congress Cataloging-in-Publication Data

Kames, Henry Home, Lord, 1696–1782.

Principles of equity/Lord Henry Home Kames; edited and with an Introduction by Michael Lobban.—Third Edition.

pages cm.—(Natural law and enlightenment classics) (Major Works of Henry Home, Lord Kames) Includes bibliographical references and index.

isbn 978-0-86597-615-3 (hardback)—isbn 978-0-86597-616-0 (paperback)

1. Equity—Great Britain. I. Lobban, Michael. II. Title.

kd674.k36 2014

346.41′004—dc23

2013020012

liberty fund, inc.

8335 Allison Pointe Trail, Suite 300

Indianapolis, Indiana 46250-1684

Edition: current; Page: [vii]

CONTENTS

  • Editor’s Introduction ix
  • A Note on Legal Sources and Citations xxvii
  • List of Abbreviations xxxiii
  • Preliminary Discourse (from the second edition of Principles of Equity) xxxv
  • Principles of Equity, The Third Edition
    • Letter to Lord Mansfield 3
    • Preface to the Second Edition 5
    • Preface to the Present [Third] Edition 7
    • Table of Contents (Third Edition) 9
    • Explanation of Some Scotch Law Terms Used in This Work 15
    • Principles of Equity (Third Edition)
      • Volume 1 17
      • Volume 2 243
    • Original Index (index to the 1778 edition) 435
    • Principles Founded on in This Work 451
  • Major Variant Readings between the First, Second, and Third Editions 453 Edition: current; Page: [viii]
  • Table of Contents of the First Edition (1760) 467
  • Table of Contents of the Second Edition (1767) 475
  • Appendix: Extracts from the First and Second Editions 485
  • Letter from Kames to Robert Dundas of Arniston, Lord President of the Court of Session, Including a Paper Entitled “Jurisdiction of the Court of Session as a Court of Equity” 537
  • Glossary 543
  • Bibliography 565
  • Index 571
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EDITOR’S INTRODUCTION

Henry Home was born in 1696 at Kames in the Scottish borders, the son of an indebted laird. Having been educated at home by private tutors, he was sent at the age of sixteen to train for the lower branch of the Scottish legal profession by studying in the chambers of a writer to the signet (attorney). Attracted by the riches promised by the bar, within two years he resolved to become an advocate (counsel) and began to study both Roman law and the classics. He attended James Craig’s private College of Civil Law in Edinburgh, where he composed for himself a collection that identified errors made by civilian writers. He continued to study hard after his admission to the Faculty of Advocates in 1723, and nine years later he applied unsuccessfully to fill the vacant professorship of Roman law in Edinburgh. By now, he had obtained a good and lucrative legal practice, particularly in commercial matters. Coming from a family which had both Jacobite and Hanoverian connections, Kames had been a zealous Jacobite when a young man. Although by the 1730s he had become “quite disentangled from Jacobitism”1 and was appointed an Advocate Depute (or crown prosecutor) in 1737, his early Jacobite connections may have contributed to his slow advancement to the bench. It was not until 1752 that he was appointed to Scotland’s highest civil court, the Court of Session, whereupon he took the title of Lord Kames, after the modest family estate which he had inherited in 1741. His later wealth derived not from that estate, but from his wife Agatha Drummond’s inheritance of her family’s estate at Blair Drummond in Stirlingshire in 1766. In 1763, Kames secured an additional appointment to the High Court of Justiciary, dealing with criminal cases, and remained active on that court until his death in 1782.

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Kames is well known as one of the leading figures of the Scottish Enlightenment. He was a friend (as well as a cousin) of David Hume and a mentor and patron to Adam Smith, John Millar, and Thomas Reid. His interests were broad and he wrote influential works in a number of fields. His Principles of Morality and Natural Religion (1751) was a work of moral philosophy, which helped establish the Scottish Common Sense philosophy developed more fully by Reid. His Historical Law-Tracts (1758) and Sketches of the History of Man (1774) were works of historical sociology, which discussed the well-known ‘four-stage theory’ of social development. His Elements of Criticism (1762) was an important work on aesthetics. Late in life, he even wrote a work on husbandry, The Gentleman Farmer (1776). Besides such works on history, philosophy, and aesthetics, Kames also produced a number of works on legal topics. These included his Essays upon Several Subjects in Law (1732), Statute Law of Scotland, abridged with historical notes (1757), and Elucidations Respecting the Common and Statute Law of Scotland (1777). But the most important of his law works was his Principles of Equity, first published in 1760. Kames continued to work on it in later life, producing a second edition in 1767 and a third in 1778.

The book brought together his philosophical interests and his knowledge of the detailed doctrines of Scots law. This knowledge derived not only from his experience as an advocate and judge, but also from his work as a reporter, for he was particularly influential in the development of systematic law reporting in Scotland. Decisions of the Court of Session had long been collected privately and circulated in manuscript, but it was not until the 1680s that any collection was put into print.2 In the early eighteenth century, the Faculty of Advocates appointed a number of individuals to develop an official collection of decisions, and some of their work found its way into print. At the same time, unofficial collections which would contribute to the systematization of reporting were made by other lawyers, Edition: current; Page: [xi] including the young Henry Home. In 1728, he published a collection of Remarkable Decisions of the Court of Session from 1716 to 1728, in which he sought to illustrate new points of law which had developed since the publication of Lord Stair’s Institutions. In 1766, he published a further set of Remarkable Decisions, covering the years 1730 to 1752; and shortly before his death, another collection of Select Decisions appeared. More influential still was his work in assembling a dictionary of decisions, the first volume of which was published in 1741.3 In it, he gathered together and abridged material from eight printed and seventeen manuscript collections, arranging it in a way to illustrate particular principles. Kames’s two volumes were supplemented by two further volumes by Alexander Fraser Tytler published in 1770 and 1797. Together, these works laid the foundation for William Maxwell Morison’s definitive thirty-eight-volume Dictionary.

By the time Principles of Equity was published, Kames had been on the bench for eight years. As a judge, he acquired the reputation of wanting to get through business as quickly as possible, to leave time for his other pursuits. He was not always popular, since he could be blunt or coarse, having a “fretfulness and liveliness in his expressions as an Ordinary, which did not suit with the gravity and dignity of a judge.”4 At the same time, if the nature of the case was such as to encourage metaphysical speculation, he could engage in subtle and abstract reasoning which might go over the heads of the audience. Kames was also sometimes unpopular with his colleagues for seeking to make innovations both in substantive law and procedure, in line with his view that law was mutable and susceptible to improvement with the progress of society. The tension is well captured in Boswell’s ditty:

  • Alemoor the judgement as illegal blames,
  • ’Tis equity, you bitch, replies my lord Kames.5
Edition: current; Page: [xii]

Kames on Legal Development

Kames’s legal and philosophical thought developed together. His view of law was informed by his ideas on the nature of human development and the influence of the moral sense. In turn, some of these ideas were developed in his elaboration of legal doctrines, both in his reports and in his treatises. For instance, in his first work, Essays upon Several Subjects in Law, he explained that an examination of human nature could show that rules of prescription were not merely the creature of positive law, but derived from natural feelings. Mankind, he argued, had an affection for property, which “leads us to bestow Care in preserving, Labour and Industry in improving what we thus consider as our own.” This affection was “as much founded in Nature as that we bear to our Children, or any Affection whatever.” Rules of prescription, according to which rights to land could be lost and gained over time, thus derived from the fact that the feelings of affection one had for one’s property faded the more one was separated from it. Anyone who consulted “his own Heart about it” would find confirmation of this basis for prescriptive rights.6

Kames’s theory of the moral sense, and its relation to law, was first set out in his Principles of Morality and Natural Religion. It was later restated in the preliminary discourse to the second edition of Principles of Equity and then included in the Sketches. According to his theory, the principles of morality—or the law of nature—were not to be found in abstract reason but in the facts of human nature. This nature “is made up of appetites and passions, which move us to action, and of the moral sense, by which these appetites and passions are governed.”7 Unlike animals, man was endued with a conscience “to check and control his principles of action, and to instruct him which of them he may indulge, and which of them he ought to restrain.”8

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While Kames’s view of the moral sense built on the work of Shaftesbury and Hutcheson, he considered that these writers had not fully explored the nature of duties and justice in a way that would provide principles to guide human actions. In Kames’s view, the moral sense taught a distinction between duty and benevolence. The moral sense dictated—as a matter of fact confirmed by everyone’s experience—that actions directed at harming others were wrong and that people were consequently under a duty not to perform them. Equally, it taught that people were under a duty to be grateful to their benefactors and to perform their engagements. These “primary virtues” were essential to society: since society could not subsist without them, they “are objects of the foregoing peculiar sense, to take away all shadow of liberty, and to put us under a necessity of performance.” Kames argued, against Hume, that the sense of justice which taught these duties was naturally universal, not artificial as argued by his kinsman. Anyone who harmed another or invaded his property, or who failed to keep his positive promises, experienced remorse and felt that he merited punishment for breaching a duty. By contrast, the virtues of benevolence or generosity, which were not “so necessary to the support of society,” were regarded by the moral sense as “secondary.” They were a matter of choice rather than compulsion, and were “left upon the general footing of approbatory pleasure.”9 Against Shaftesbury, he argued that there was no principle of universal benevolence. While the principles of justice were enforced by effective natural sanctions, universal benevolence could not be made into a strict duty, since the limited abilities and capacities of man were unsuited to it. However, Kames also argued that benevolence could become a duty in certain circumstances. The stronger the connection between two parties, the greater was the impulse to benevolence. Where the connection was a close one—as between parent and child—benevolence could become a duty, since neglecting to act would be “attended with remorse and self-condemnation.”10 But the more distant the connection, the weaker the sense of duty.

Kames also argued that the moral sense developed with the progress Edition: current; Page: [xiv] of society. The law of nature was not stationary, but “must vary with the nature of man, and consequently refine gradually as human nature refines.”11 The four-stage theory of human development played a prominent role in Kames’s views of both social and legal development.12 He argued that in his original state, man was ruled more by his appetites and passions than by general principles which could be derived from the moral sense. Hunter-gatherer societies had only the most limited notion of property—that a man who caught prey could use it—and no notion of contracting. But since man was not designed to be an animal of prey, this precarious life was not suitable to his nature, and he progressed naturally to the pastoral, agricultural, and finally commercial stages of society, where the respect for property and fidelity to promises which were part of the moral sense could become more cultivated. At the same time, as societies progressed, the legal concepts of property and contract became ever more refined.

With this social and moral advance, the number of duties enforced by law increased, as the boundary between duty and benevolence changed. Municipal law, he noted, was concerned only with whether a man transgressed the regulations necessary for the preservation of society; it was not concerned with whether or not he was virtuous. One reason for this was that municipal law had to be reducible to precise and clear rules, which could be applied in general. Only matters which could be reduced to rules could be regarded as duties which were enforced as a matter of justice. The duty to be benevolent could not usually be reduced to a rule, since the degree of benevolence called for depended too much on particular circumstances. Nonetheless, Kames argued, in some cases, the “duty of benevolence arising from certain peculiar connections among individuals” could be made into a precise rule. In such cases, “benevolence is also taken under the authority of the legislature, and enforced by rules passing commonly under the name of the law of equity.”13

In the Principles of Equity, Kames aimed to explain how equity worked over time to convert what were duties of benevolence into duties of justice. Edition: current; Page: [xv] In it, he argued that as societies progressed, benevolence became “a matter of conscience in a thousand instances, formerly disregarded.”14 This was something to which a court of common law, which dealt with the ordinary duties of justice, was blind. However, a court of equity was able to recognize this development, and to intervene in “remarkable cases” when it perceived from the circumstances that the duty was “palpable.” The court of equity thus worked to help convert the duty of benevolence which had refined over time into a duty of justice. It “commences at the limits of the common law, and 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 at common law.”15 Over time, as case law developed, judges in equity became more acute at making distinctions and developed these duties in a more systematic way. Once a rule in equity had become fully established in practice, it became part of the fixed rules of common law. This meant that the borderline between common law and equity was flexible: the task of a court of equity was to recognize, refine, and incorporate new rules recognized by the moral sense.

The Nature of Equity

The Principles of Equity was the fullest elaboration of Kames’s theory of legal development. Yet it was not really a book of legal philosophy, but a practical work, aimed at an informed legal audience. Although a book primarily about Scottish law, it was written for a legal audience throughout Great Britain. In the preface to the Historical Law-Tracts, he stated that it was unfortunate that the different parts of the kingdom were ruled by different laws. “A regular institute of the common law of this island, deducing historically the changes which that law hath undergone in the two nations, would be a valuable present to the public,” he noted, “because it would make the study of both laws a task easy and agreeable.”16 He added that one man could not do it alone, but that such a work would both help Edition: current; Page: [xvi] bring about a more effective union and improve Scots law. The Principles of Equity was in many ways his contribution to this project, for in it he aimed to treat one aspect of the law and set out a general treatise which drew on the case law of both countries.

The very project of writing a treatise on equity which would address legal audiences on both sides of the border was highly ambitious, since it raised questions about what was meant by equity. The classical definition was to be found in Aristotle’s Nicomachean Ethics,17 according to which it was sometimes necessary for the rules of law to be adapted or modified in particular cases where a strict adherence to a rule would lead to injustice. Yet neither English nor Scots lawyers argued that equity could be used simply to set aside unjust laws. In the words of Kames’s contemporary Lord Bankton, the Court of Session had no equitable power to give relief “where the prescription of the law is clear, and yet happens to fall very hard in any particular case.”18 In such cases, it was for the legislature to intervene.

English writers generally saw equity in jurisdictional terms. It was associated with the Court of Chancery,19 which had an equitable jurisdiction wholly denied to courts of common law. Although there had been a famous clash between the courts of common law and the Chancery in 1616,20 writers on equity accepted Christopher St. German’s sixteenth-century view that the Lord Chancellor’s jurisdiction in equity did not stand in opposition to the common law and that his conscience should be guided by the law. The role of the Chancery was to provide a remedy where the common law courts could not do so, due to the nature of their procedure. In England, the procedure used in the common law courts was wholly Edition: current; Page: [xvii] different from that used in the Chancery. Common law procedure was an adversarial one, in which parties set out their disputes in pretrial pleadings which refined the matter to a single point. A jury would then find for one party or the other on the question put to them and award damages. By contrast, the procedure used in the Chancery was more inquisitorial. Cases were commenced with a bill explaining the plaintiff’s claim and demanding an answer from the defendant. It was this procedure which gave the court its jurisdiction over matters of trust, fraud, and confidence. For the Chancery’s procedure allowed it to probe the consciences—or knowledge—of the parties in a way not possible at common law. It also offered a more flexible and discretionary set of remedies. By the eighteenth century, the equitable jurisdiction of the Court of Chancery had become increasingly settled, with the court following rules and precedents which had created a body of doctrine over time.

By contrast, the Scottish Court of Session had both a “common law” and an “equitable” jurisdiction. Since this court used an inquisitorial procedure taken from the Romano-Canonical tradition, there was no need for a separate court to explore the parties’ consciences and administer equity. At the same time, in Scotland, only the Court of Session had a jurisdiction over equity: inferior courts were limited to matters of common law. What, then, was this “equity” which the highest court applied? Scottish writers spoke of it as “the nobile officium of the judges,” a power which was “inherent in the supreme judicatory of every state.”21 According to John Erskine, this power allowed the court “to proceed by the rules of conscience, in abating the rigour of the law, and in giving aid, in the actions brought before them, to those who can have no remedy in a court of law.” The notion of the nobile officium derived from civilian teaching dating back to Bartolus of Sassoferrato (1313–57), who distinguished between the “mercenary office” (officium mercenarium) of a judge, by which was meant his ordinary power, and his “noble office” (officium nobile), which connoted his extraordinary power. When exercising the former power, the judge strictly followed the forms of the law. Edition: current; Page: [xviii] When exercising the latter, he acted on his own initiative and by his own authority.22

In the late seventeenth century, Sir George Mackenzie associated this power with “Arbitrary Actions wherein the Judge is tied to no particular Law.” It operated “in opposition to that officium ordinarium & mercenarium; wherein he is obliged to follow the will of the Contracters precisely, & hoc officium mercenarium Judex nunquam impertit nisi rogatus.23 This discretionary power allowed the court to provide remedies which parties could not demand of right, but where the court’s intervention was needed to prevent injustice. For instance, it was used by the Court of Session to allow creditors to attach a debtor’s property to secure a debt not yet due, if the creditor was in danger of losing his money by the threatened flight of the debtor. It also allowed the court to set aside fixed procedural rules which operated at common law.24 In the seventeenth century, the nobile officium was associated with the court’s relaxation of its rules of procedure which required parties to obtain a decision on points of law raised by the alleged facts, before going to proof on those facts. In place of this procedure, the court used its discretion to allow mixed questions of fact and law to proceed, so that the court would pronounce the law subsequently on the basis of facts which had emerged in further investigation. This procedure allowed the court in effect to adapt the law to the particular circumstances of individual cases.25

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The court also had the power by its nobile officium to introduce new rules to overcome imperfections in the law. There was some debate over how far this extended. Lord Bankton illustrated the power by referring to “a memorable instance” in 1725 when the Court of Session made an act of sederunt26 to order the brewers of Edinburgh, who had entered a resolution to give up their trade, to give a security that they would continue to brew beer, on pain of imprisonment.27 Some critics found this legislative power of the court to be alarming. James Boswell wrote a Letter to the People of Scotland in 1785, in which he described the nobile officium of the court as an “undefined arbitrary jurisdiction.”28 He referred his readers to Gilbert Stuart, who had said that through its exercise, “the judicial powers usurp upon the legislative.” “It is in a wild hostility with our constitution,” Stuart added. “It is a Turkish jurisdiction in a country of liberty.”29 Another writer attacked the Court of Session’s use of its nobile officium to make acts of sederunt which repealed or dispensed with statutes, or imposed taxes.30 Yet if some pamphleteers found this power dubious, particularly when it was seen to usurp the role of legislation, most legal writers regarded it as a necessary means to allow new remedies to emerge to Edition: current; Page: [xx] deal with imperfections in the common law, in areas which attracted little legislative attention.31

Kames explained his own understanding of the nobile officium in the Historical Law-Tracts. He associated it with a power to redress wrongs of all kinds. It worked in a way to uncover principles for unsettled subjects on which men were apt to disagree and judge by sentiment. As he put it,

Matters of law are ripened in the best manner, by warmth of debate at the bar, and coolness of judgment on the bench; and after many successful experiments of a bold interposition for the publick good, the court of session will clearly perceive the utility, of extending their jurisdiction to every sort of wrong, where the persons injured have no other means of obtaining redress.32

This meant that “all extraordinary actions, not founded on common law, but invented to redress any defect or wrong in the common law, are appropriated to the court of session,” exercising a jurisdiction denied to inferior courts.33

Kames himself explored this power of equity in his reports. For instance, in his report of the case of Charles M‘Kinnon contra Sir James M‘Donald in his Select Decisions of the Court of Session from the Year 1752 to the Year 1758, he commented on how a new rule regarding which heir could take charge of a deceased person’s estate had emerged “in the famous case of Sir George M‘Kenzie’s entail.” The new rule developed by the judges, he commented, “was a new exertion of the nobile officium in order to remedy many hardships, and even injustice that must arise in this case, from the aforesaid rule of succession established at common law.” Kames proceeded to explain to readers the reason for the rule, and to make a commentary on what he felt were the consequences of the rule.34 In his Edition: current; Page: [xxi] Elucidations Respecting the Common and Statute Law of Scotland, he also set out proposals on how the Court of Session could use its nobile officium to provide new remedies.35

Kames also discussed the nature of the nobile officium of the Court of Session in a letter he wrote in 1764 to Robert Dundas of Arniston, Lord President of the Court of Session, proposing an act of sederunt which would reform an aspect of Scottish bankruptcy law.36 In an accompanying document on the jurisdiction of the court, Kames sought to persuade his colleague that the court did have this power, giving numerous examples of the court’s use of its equitable powers, and arguing that the court must be taken to have inherited the powers of the Scottish Privy Council to redress injuries, after its abolition at the union.37

In the Principles of Equity, Kames did not discuss the nobile officium of the Court of Session as such, for in this book he was interested in exploring a wider concept of equity which would speak to English as well as Scots lawyers. Here he argued that equity intervened both when the settled rules of the common law acted in an unjust way and when they failed to fulfill the needs of justice. This occurred as societies progressed and the moral sense began to recognize connections between people which turned benevolence into a duty. Equity’s intervention was not boundless, however: it was limited to those connections which related to interests in property. Equity could not concern itself with connections arising from personal circumstances, for it was only the former which could be made into a rule. The book was therefore primarily about property and civil obligations. In the body of the work, he accordingly spent much time exploring what constituted an unjustified enrichment—discussing the Roman law maxim Nemo debet locupletari aliena jactura38—and what principles lay behind the respective claims of different creditors on an indebted estate.

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A further feature of equity identified by Kames was that it looked more closely at the intentions and motivations of parties, so that it could root out injustices to which the common law was blind. For instance, when dealing with contracts and deeds, the common law simply looked to the text, whereas equity could look at the real intentions of the parties. Hence, much of the book was concerned with showing how the court should interpret contracts, and at how it treated vitiating factors such as pre-contractual pressure or undue influence. Just as equity could go farther than common law with deeds, so it could intervene in other civil wrongs. For example, where the common law only looked at whether a man had exercised his rights, a court of equity could look at his intentions and intervene against a man who had exercised a right with the sole motive of harming another. Equity also intervened, he added, to prevent the common law acting in an unjust way, as where the wording of statutes went beyond their intended purpose and led to injustice in particular cases.

Much of the Principles of Equity was devoted to discussing how equity worked to secure justice when the common law failed to do so. But Kames added that a court of equity also intervened on the grounds of utility, by preventing acts which were not in themselves unjust, but which were mischievous and against the public interest. For the most part, the principle of justice (which looked only to the individual litigants) and the principle of utility (which looked to the interests of society) worked in harmony. But he noted that they might come into opposition. In such cases “[e]quity, when it regards the interest of a few individuals only, ought to yield to utility when it regards the whole society.”39 For example, the regulations which were designed to abridge lawsuits meant that the courts would refuse to listen to a claim which an individual might have in justice—as where he had accepted an unequal settlement of a lawsuit in error—simply because to do otherwise would be to encourage endless litigation. At first glance, it may be thought that Kames’s stress on utility sat uneasily with his theory of justice, as derived from the moral sense. Yet the two were not in his view incompatible. For Kames’s argument suggested that utility itself dictated the limits of equity. One might, he noted, be Edition: current; Page: [xxiii] able to do justice in individual cases, but without being able to formulate this into a rule. To allow judges nevertheless to give a remedy in such cases created the risk of making them arbitrary and often unjust, which would be harmful to society.40 There were hence limits to equity’s intervention to enforce just claims, though he added that it should never enforce unjust claims. The principle of utility confirmed that duties of justice had to be capable of being formulated as rules.

In the Introduction to the Principles, Kames added his views that it was better to have a single court with the power to administer both common law and equity (as in Scotland) and that the court of equity itself should follow rules. These were topics on which he had corresponded with the former Lord Chancellor of England, Lord Hardwicke, shortly before the publication of the first edition. Hardwicke disagreed on the first of these points, feeling that a union of the judicatures might allow a judge to alter the settled rules of property law at his discretion. Such an arbitrary power exercised in matters of property might then extend to matters of life and liberty. On the second point, Hardwicke admitted that there should be general rules which guided the court (such as those which related to trusts), yet he felt that the judge should not be absolutely and invariably bound by them. In his view, equity had grown in response to the luxuriant growth of fraud, and since fraud was infinite, the Lord Chancellor’s powers had to be flexible.41

If Lord Hardwicke was sceptical about some of Kames’s views, the Chief Justice of the King’s Bench, Lord Mansfield, was enthusiastic. After the publication of the first edition of the work, he wrote to Kames,

I read ev’ry thing yr L[ordshi]p writes with great Satisfaction. The best of our Judges are delighted with some of yr Law Pieces. You have taught Men to trace Law to its true noble Sources: Philosophy & History. Your Principles of Equity are very ingenious; but the Opposition of Equity to Law as now administered in England by different Courts, is not to be learnt from anything yet in Print & is not deducible from Reason. It can Edition: current; Page: [xxiv] only be explained positively & by Historical Deductions. I wish we had a Pen & Genius & Diligence like yr L[ordshi]ps to do it.42

Mansfield wrote to Kames again when the latter was preparing the second edition of the book. Reflecting on the work, the Chief Justice wrote,

I was not single in wishing, you had considered Principles of Equity, not in opposition to, but as one Ground of Law absolutely necessary in the administration of justice the same at all times & in all places. Non alia lex Romae, alia Athenis43 [ . . . ] To reduce principles of Equity into a System of Science, & to illustrate them by Examples from all times & Countrys is a lesson of Jurisprudence to the whole World; & worthy of your Ldsp. It equally suits the Parliament of Paris, the Court of Session, & the Courts in England whether called of law or Equity, but the plan of a distinct Court of Equity, upon natural or political Principles may embarrass the Subject; & any allusion to the Case in England, upon a supposed natural division of law and Equity into two Sciences can only lead to mistakes.44

Lord Mansfield was famously enthusiastic about introducing equitable principles into his court, and Kames’s admiration for him was shown by the letter to Mansfield at the start of the second edition.45 Although it cannot be denied that these two judges did not always agree even on some of the most important issues of their day—as can be seen from the contrary positions Edition: current; Page: [xxv] they took on the question whether there was a common law right to literary property46—Kames did, in at least one respect, modify his argument in the Principles of Equity to take a position closer to Mansfield’s view. Between the first and second editions of the work, Kames modified the formulation of his argument concerning the principles behind the restitutionary actio negotiorum gestio.47 Where in the earlier edition he rooted the obligation in an implied contract, in the later edition he rooted it in a broader notion of justice.48 Soon after Kames had finished the first edition of the Principles, Mansfield decided the case of Moses v. Macferlan, in which he described the English restitutionary action of money had and received as “an equitable action, to recover back money, which ought not in justice to be kept.” In so deciding, he rejected an argument that the remedy could only be brought in a case where an express or implied contract could be found, holding instead that “the defendant be under an obligation, from the ties of natural justice, to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff’s case.”49 Kames did not mention this case in the Principles—nor any other case of Mansfield’s50—but it may be assumed that England’s chief justice would have approved of the modification.51

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When the Principles of Equity was first published in 1760, Kames sought to use the text as a vehicle to gain promotion to the High Court of Justiciary.52 But long after he had achieved his ambition to be a criminal judge, he continued to refine and revise a work which he clearly regarded as of considerable importance. In November 1777, he wrote to a friend,

I have been busy at my Principles of Equity for a new edition ever since I returned from the Circuit; and I have never laboured harder upon any subject. That book I always considered as my chief performance; and the advance of ten years of my life since the last publication made me doubtful whether I would be able to make any improvement. It delighted me to find my mental faculties still entire, even so much as to be able to detect several errors that had escaped in the former edition. You cannot conceive my satisfaction in detecting these errors myself, instead of having my reputation wounded by their being detected after my death.53

A Note to the Reader

The pagination of the third edition is indicated in the text with page numbers placed within angular brackets (Edition: orig; Page: [1]). Readers should bear in mind that the original work was published in two octavo volumes, and that the material of volume 2 commences at p. 243 below.

Kames’s own notes, as in the original, are indicated by asterisks, daggers, and other symbols or by the letter (a), while the editor’s annotations of Kames’s notes appear within brackets. The editor’s own notes are indicated by arabic numerals.

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A NOTE ON LEGAL SOURCES AND CITATIONS

Kames’s Principles of Equity is replete with a large range of technical terms from Scots, Roman, and English law. To assist the reader, I have appended my own glossary to the text of terms used (p. 543), to serve as an addition to Kames’s brief “Explanation of Some Scotch Law Terms Used in This Work” (p. 15). Some of the language of Scots law uses terms which might at first glance appear to bear no specific meaning, but which in fact have a particular legal connotation. The glossary and notes seek to explain them as simply as possible. Latin tags and phrases are in general translated in the body of the text, but the glossary also contains terms used repeatedly.

The work also makes extensive reference to Scottish and English statutes and case law and to Roman law. What follows is a brief introduction to the citation of this material.

Scottish Legislation

At the time when Kames was writing, the standard printed collection of statutes was that produced by Sir Thomas Murray of Glendook, the lord clerk register from 1677 to 1681.1 It was produced in a folio edition in 1681 and a two-volume duodecimo edition in 1682 (taking the statutes to 1681), and was subsequently supplemented by another volume taking the collection to 1707. The duodecimo edition was the one most commonly cited in courts. In Kames’s day, the method used to refer to statutes was Edition: current; Page: [xxviii] by reference to the year and chapter number given in Glendook’s edition (and not by name).2 It is this method which Kames uses in his text and footnotes.

In the nineteenth century, a new definitive printed edition of the statutes was compiled by Thomas Thomson and Cosmo Innes. Their edition of The Acts of the Parliament of Scotland was published between 1814 and 1875 in Edinburgh in twelve folio volumes and became the standard point of reference for historians. This edition is also flawed, and a new digital, on-line edition of the Scottish parliamentary material, entitled The Records of the Parliament of Scotland to 1707 has been produced by the Scottish Parliament Project at the University of St. Andrews. The database of statutes can be accessed via: http://www.rps.ac.uk/. Readers wishing to follow up the references are recommended to consult the database, where translations are given into modern English.

In the footnotes, I have used both these forms of citation, giving the Glendook reference in the notes (where Kames omits to do so in the text), followed by the citation and title given in the Acts of the Parliament of Scotland. Scottish statutes were only given short titles as a result of legislation passed in 1892, 1896, and 1964, which assigned short titles to unrepealed public acts of the Scottish parliament passed between 1424 and 1707. Where such a short title exists, I have also given it.

Scottish Case Law

In Kames’s time, a number of manuscript collections of law reports existed, which were kept in the Faculty of Advocates’ Library in Edinburgh and used by practitioners in the court. In addition, a number of these had been published by the time Kames composed the Principles of Equity. Kames himself published a number of collections of law reports, the most important of which was his Dictionary (first published in 1741 in two volumes), which, when supplemented later by Alexander Fraser Tytler, Lord Woodhouselee, was referred to as the Folio Collection.

The majority of these reports were subsequently collated and published Edition: current; Page: [xxix] in the forty-two-volume collection edited by William Maxwell Morison, The Decisions of the Court of Session from its institution until the separation of the Court into two divisions in the year 1808, digested under proper heads in the form of a dictionary (Edinburgh: Archibald Constable & Co., 1811). This became the standard reference work for earlier cases for Scottish lawyers.

Most of the cases cited by Kames were included in Morison’s Dictionary of Decisions: and I have therefore given the reference to Morison in the footnotes. Morison’s Dictionary is continuously paginated, and so a reference such as M 9505 indicates that the case cited is in Morison’s collection, p. 9505.

Where Kames himself reported a case referred to (either digesting an earlier report or reporting it for the first time himself), a reference is given to Kames’s report. Cases discussed by Kames without any citation (beyond a date) are unpublished cases.

Kames’s own footnotes frequently name the reporters whose work he is referring to: for example, Fountainhall, July 29, 1708, Rag contra Brown. The following is a list of the published collections which are cited by Kames; many are now available in electronic form on databases of seventeenth- and eighteenth-century literature.

Bruce Alexander Bruce, The Decisions of the Lords of Council and Session, in most cases of importance, for the months of November and December 1714, and January, February, June and July 1715 (Edinburgh: James McEuen, 1720).
Dalrymple Decisions of the Court of Session from 1698 to 1718, collected by the Right Honourable Sir Hew Dalrymple (Edinburgh: G. Hamilton and J. Balfour, 1758).
Dirleton Some Doubts and Questions in the Law, especially of Scotland. As also, some decisions of the Lords of Council and Session: collected and observ’d by Sir John Nisbet of Dirleton (Edinburgh: G. Mosman, 1698).
Durie Sir Alexander Gibson of Durie, The Decisions of the Lords of Council and Session . . . from July 1621 to July 1642 (Edinburgh: George Mosman, 1690).
Falconer David Falconer, The Decisions of the Court of Session. From the Month of November 1744, 2 vols. (Edinburgh: W. & T. Ruddimans).
Forbes William Forbes, A Journal of the Session. Containing the Decisions of the Lords of Council and Session . . . from February 1705 till November 1713 (Edinburgh: for the author, 1713).
Fountainhall The Decisions of the Lords of Council and Session from June 6th 1678 to July 12th 1712. Collected by Sir John Lauder of Fountainhall, 2 vols. (Edinburgh: G. Hamilton and J. Balfour, 1759–61).
Gilmour A Collection of Decisions of the Lords of Council and Session in two parts. The first contains decisions from July 1661 to July 1666. Observ’d by Sir John Gilmour of Craigmiller (Edinburgh: John Vallange, 1701).
Harcase Decisions of the Court of Session, collected by Sir Roger Hog of Harcase . . . from 1681 to 1691 (Edinburgh: G. Hamilton and J. Gilmour, 1757).
Home Henry Home, Lord Kames, Remarkable Decisions of the Court of Session from 1716 to 1728 (Edinburgh: T. Ruddiman, 1728).
Kilkerran Decisions of the Court of Session, from the year 1738 to the year 1752. Collected and digested into the form of a dictionary. By Sir James Fergusson of Kilkerran (Edinburgh: J. Bell and W. Creech, 1775).
Stair Sir James Dalrymple of Stair, The Decisions of the Lords of Council & Session in the most Important Cases debate before them, with the Acts of Sederunt . . . from June 1661 to July 1681 (Edinburgh: Andrew Anderson, 1683).

England

Kames also refers to cases reported in manuscript by the following authors, whose works were digested by both Morison and Kames in their printed collections:

Haddington Thomas Hamilton, Earl of Haddington
Hope Sir Thomas Hope of Kerse
Gosford Sir Peter Wedderburn of Gosford
Nicolson Sir Thomas Nicolson of Carnock
Spottiswoode Sir Robert Spottiswoode of Pentland

Statutes passed by the English Parliament, and by the British Parliament after 1707, are generally cited by Kames according to the regnal year, chapter, and section number (for example, 29 Car. II, c. 3, s. 1); I have added the date and title (for example, An Act for Prevention of Frauds and Perjuries, 1677).

At the time Kames was writing, reports of English cases were published under the name of the reporter who compiled them, and Kames refers to these “nominate” law reports (for example, “Salkeld,” “Vernon”). Full references for these reports are given in the list of abbreviations (p. xxxiii). The reports he cites were subsequently reprinted in The English Reports, 176 vols. (London: Stevens & Sons, 1900–1930). Where Kames refers to an English case, I have given both the original reference and the reference to where it can be found in The English Reports reprint.

Roman Law

In Principles of Equity, Kames makes frequent reference to the Roman Corpus Iuris Civilis (Body of Civil Law) compiled on the orders of Emperor Justinian between the years 530 and 534. Three principal works made up this body of law: the Institutes, the Code, and the Digest. Where Kames quotes or cites from these sources, I have given the modern form of citation, which is as follows:

Inst Institutes. References are given to the book, title (that is, chapter) and lex (that is, section). Thus, Inst. 2.23.1 refers to Justinian’s Institutes, book 2, title 23, lex 1.
C Code. References are given to the book, title, and lex. Thus, C 8.34.3 refers to Justinian’s Code, book 8, title 34, lex 3.
D Digest. References are given to the book, title, lex, and subsection of the lex. Thus D 9.2.29.3 refers to Justinian’s Digest, book 9, title 2, lex 29, and section 3.
pr. prooemium (preface). Many of the titles and leges have an introductory preface. Thus, D 9.2.2.pr. refers to the introductory preface to book 9, title 2, lex 2 of the Digest of Justinian.

For quotations from the Digest of Justinian, I have relied on the translation in The Digest of Justinian, ed. Theodor Mommsen and Paul Krueger, ed. and trans. Alan Watson, 4 vols. (Philadelphia: University of Pennsylvania Press, 1985), and referred the reader to volume and page numbers in that edition, as well as giving the standard citation for the source. For translations of quotations from the Institutes, I have relied on the edition of Peter Birks and Grant McLeod: Justinian’s Institutes (London: Duckworth, 1987), and similarly given page references and standard citations. Other translations are my own.

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ABBREVIATIONS

APS The Acts of the Parliament of Scotland, 12 vols., ed. T. Thomson and C. Innes (Edinburgh, 1814–75).
AS The Acts of Sederunt of the Lords of Council and Session, from the 15th of January 1553 to the 11th of July 1790 (Edinburgh: Elphinstone Balfour, 1790).
C Codex Iustinianus (The Code of Justinian), ed. Paul Krueger (Berlin: Weidmann, 1877).
1 Chancery Cases Cases Argued and Decreed in the High Court of Chancery, 2nd ed. (London: Atkyns for Walthoe, 1707).
2 Chancery Cases The Second Part of Cases Argued and Decreed in the High Court of Chancery continued from the 30th Year of King Charles II to the 4th Year of King James II (London: Atkyns for Walthoe, 1701).
D The Digest of Justinian, ed. Theodor Mommsen and Paul Krueger, trans. and ed. Alan Watson, 4 vols. (Philadelphia: University of Pennsylvania Press, 1985).
Eq. Cas. Abr. A General Abridgment of Cases in Equity, 2 vols., 4th ed. (London: Lintot, 1756).
Inst Justinian’s Institutes, trans. and ed. Peter Birks and Grant McLeod (London: Duckworth, 1987).
Kames, Dictionary (Kames, Henry Home, Lord), The Decisions of the Court of Session from its first institution to the present time. Abridged, and digested under proper heads in the form of a Dictionary, 2 vols. (Edinburgh: Richard Watkins, Alexander Kincaid and Robert Fleming, 1741).
Kames, Remarkable Decisions i (Kames, Henry Home, Lord), Remarkable Decisions of the Court of Session from 1716 to 1728 (2nd ed., Edinburgh: Bell & Bradfute, 1790, 1st ed. 1728).
Kames, Remarkable Decisions ii (Kames, Henry Home, Lord), Remarkable Decisions of the Court of Session from 1730 to 1752 (2nd ed., Edinburgh: Bell & Bradfute, 1799, 1st ed. 1766).
Kames, Select Decisions (Kames, Henry Home, Lord), Select Decisions of the Court of Session, from the year 1752 to the year 1768. Collected by a member of the Court (2nd ed., Edinburgh: Bell & Bradfute, 1799, 1st ed. 1780).
M William Maxwell Morison, The Decisions of the Court of Session from its institution until the separation of the Court into two divisions in the year 1808, digested under proper heads in the form of a dictionary, 42 vols. (Edinburgh: Archibald Constable & Co., 1811).
Salkeld William Salkeld, Reports of Cases Adjudg’d in the Court of King’s Bench (London: Nutt & Gosling for Walthoe, 1717).
Sid. Thomas Siderfin, Les reports des divers special cases argue & adjudge en le Court del Bank le Roy, 2nd ed., 2 vols. (London: Nutt for Keble, Browne, Ward, Mears and Browne, 1714).
Vernon Cases Argued and Adjudged in the High Court of Chancery Published from the Manuscripts of Thomas Vernon, 2 vols. (Dublin: Watts, 1726–29).
Watson The Digest of Justinian, ed. Theodor Mommsen and Paul Krueger, trans. Alan Watson et al., 4 vols., Philadelphia: University of Pennsylvania Press, 1985.
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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 employed 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. Edition: orig; Page: [2]

Some effects proceed necessarily from the action. A wound is an effect Edition: current; Page: [xxxvi] 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. Edition: orig; Page: [3]

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CHAPTER 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.

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These preliminaries lead directly to the true foundation of mora-Edition: orig; Page: [4]lity, 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 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 clothed, 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 Edition: current; Page: [xxxix] 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 Edition: orig; Page: [5] is perceived to be ill; and the action by which it is produced, is perceived to be wrong.* 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 Edition: current; Page: [xl] 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 Edition: orig; 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. Edition: current; Page: [xli] 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 Edition: orig; 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.*

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 Edition: current; Page: [xlii] 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 Edition: orig; 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 Edition: current; Page: [xliii] 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 Edition: orig; 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 Edition: current; Page: [xliv] 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 disformity, not less remarkable, among creatures of different kinds. This common Edition: orig; 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; Edition: current; Page: [xlv] 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 de-Edition: orig; Page: [11]cisions 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.

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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. Edition: orig; Page: [12]

CHAPTER 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. Edition: current; Page: [xlvii] 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 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, Edition: orig; 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 Edition: current; Page: [xlviii] 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 forced 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.* Edition: orig; 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, Edition: current; Page: [xlix] 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.*

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, 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; Edition: current; Page: [l] and if he falsify their meaning, he tells a lie, Edition: orig; 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 Edition: current; Page: [li] 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 en-Edition: orig; Page: [16]gagement; 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 Edition: current; Page: [lii] 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 self-duties. These duties contribute greatly to private happiness, by Edition: orig; 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, Edition: current; Page: [liii] 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 particu-Edition: orig; Page: [18]lar 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 Edition: current; Page: [liv] 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 Edition: orig; 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.1

CHAPTER 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 Edition: current; Page: [lv] 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. Edition: orig; Page: [20]

It may possibly be thought that rewards and punishments, of which afterward, are sufficient of themselves to enforce 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 Edition: current; Page: [lvi] 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.* Edition: orig; Page: [21]

CHAPTER 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 Edition: current; Page: [lvii] 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 Edition: orig; 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 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 any 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 Edition: current; Page: [lviii] 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, Edition: orig; 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, Edition: current; Page: [lix] 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.* Some, Edition: orig; 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 Edition: current; Page: [lx] 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.* Edition: orig; 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; Edition: current; Page: [lxi] 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.

CHAPTER 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 repa-Edition: orig; Page: [26]ration 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 Edition: current; Page: [lxii] 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 culpable 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 marketplace 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.* Edition: orig; Page: [27]

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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.”2

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 Edition: current; Page: [lxiv] 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 Edition: orig; 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 illicito3 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.

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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 Edition: orig; 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 solatium4 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 judgment, 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 Edition: current; Page: [lxvi] 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 judgment. 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 Edition: orig; Page: [30] voluntary act. Example: “If A ride an unruly horse in Lincolns-inn-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.”5 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 Edition: current; Page: [lxvii] by his voluntary act, though the immediate cause of the mischief be involuntary.

CHAPTER V[I]6: 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. Edition: orig; 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, Edition: current; Page: [lxviii] 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:7 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 in-Edition: orig; Page: [32]tuitive knowledge is to the performance of our duty: and I begin with examining what place there might be for intuitive Edition: current; Page: [lxix] 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 Edition: current; Page: [lxx] with the limited capa-Edition: orig; Page: [33]city 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 Edition: current; Page: [lxxi] 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, with-Edition: orig; Page: [34]out 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 enforces 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 Edition: current; Page: [lxxii] 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 Edition: orig; 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 forced 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,8 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 Edition: current; Page: [lxxiii] 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 Edition: orig; 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 Edition: current; Page: [lxxiv] 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,9 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 negli-Edition: orig; Page: [37]gence, 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 Edition: current; Page: [lxxv] 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.

NOTANDUM BENE10

Among the many divisions of human actions in the preliminary discourse, there is one all along supposed, but not brought out into a clear light. It is what follows: 1. Actions that we are bound to perform. 2. Actions that we perform in prosecution of our rights or privileges. 3. Actions that are entirely voluntary or arbitrary; such as are done for amusement, or from an impulse to act without having any end in view. Thus one leaps, runs, throws stone, merely to exert strength or activity; which therefore are in the strictest sense voluntary.

In the preliminary discourse, p. <lxii>. we have the following proposition, That the moral sense prohibits every action that may probably do mischief; and therefore, that if the probability of mischief be foreseen, or may be foreseen, the action is culpable or faulty. In stating this proposition no actions were in view but the last in the foregoing division; and it was an omission not to confine the proposition to these; for it holds not with respect to actions done in prosecution of our rights or privileges. Such actions are governed by a different principle, mentioned p. Edition: orig; Page: [41], That the Edition: current; Page: [lxxvi] probability of mischief, even foreseen, prohibits me not from following out my rights or privileges. And it is happily so ordered by nature. When we act merely for amusement, it is a salutary and just regulation, that we should be answerable for what harm we do that either is foreseen or may be foreseen. But our rights and privileges would be very little beneficial to us, were we put under the same restraint in making these effectual. What actions may be lawfully done in prosecuting our rights and privileges, are handled in book 1. part 1. chap 1. sect 1. What actions may be lawfully done without having in view to prosecute any right or privilege, are handled in the section immediately subsequent.

Edition: current; Page: [1]

Principles of Equity, Vol. I

principles

of

equity.

the third edition.

in two volumes.

vol. i.

edinburgh:

Printed for J. Bell, and W. Creech, Edinburgh;

and T. Cadell, London.

mdcclxxviii.

Edition: current; Page: [2] Edition: current; Page: [3]
Henry Home, Lord Kames
Home, Henry, Lord Kames
August 1766
Lord Mansfield
Mansfield, Lord

LETTER TO Lord MANSFIELD

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 imagined presence might inspire him with more than what he felt at ordinary hours.”1 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 avoid errors, perhaps gross ones; and the absurdity appeared 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 Edition: current; Page: [4] 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 on ingratitude.

Will your Lordship permit me to subscribe myself, with heart-satisfaction,

Your zealous friend,
henry home
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PREFACE to the Second Edition

An author who exerts his talents and industry upon a new subject, without hope of assistance from others, is too apt to flatter himself; 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 he the more regretted, because they concerned 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 say.

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 the author so distinct from its excesses, that he thought it proper to handle these articles separately. But almost as soon as the printing was finished, the author observed 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; which he holds to be an infallible mark of an unskilful distribution. 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, too limited in its power of doing justice; whence it 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. This is so evident, 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, Edition: current; Page: [6] many claims, good at common law, are reprobated in equity because of some incidental wrong that comes not under the cognisance of common law. A claim of this kind must be sustained by a court of common law, which cannot regard the incidental 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 decidendi1 is precisely the same in both cases, namely, 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.

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PREFACE to the Present [Third] Edition

An useful book ought not to be a costly book. Preface to Present [Third] Edition

To bring this edition within a moderate price, not only the size is smaller, but the preliminary discourse on the principles of morality is left out, being published more complete in Sketches of the History of Man.

To mould the principles of equity into a regular system, was a bold undertaking. The pleasure of novelty gave it a lustre, and made every article appear to be in its proper place. The subject being more familiar in labouring upon a second edition, the many errors I discovered produced an arrangement differing considerably from the former. My satisfaction however in the new arrangement, was not entire: the errors I had fallen into produced a degree of diffidence and a suspicion of more. And now, after an interval of no fewer than ten years, I find the suspicion but too well founded, chiefly with respect to the extensive chapter of deeds and covenants. The many divisions and subdivisions of that chapter, I judged at the time to be necessary; but after pondering long and frequently upon them, I became sensible that they tend to darken rather than to enlighten the subject. That chapter is now divided into fewer and more distinct heads; which I expect will be found a considerable improvement. In an institute of law or of any other science, the analyzing it into its constituent parts, and the arranging every article properly, is of supreme importance. One could not conceive, without experience, how greatly accurate distribution contributes to clear conception. Before I was far advanced in the present edition, the many errors I found in the distribution surprised and vexed me. I have bestowed much pains in correcting these errors; and yet I will not answer that there are none left. Many escaped me before; and some may again escape me. No work of man is perfect: it is good however to be on the mending hand; and in every new attempt, to approach nearer Edition: current; Page: [8] and nearer to perfection. To compile a body of law, the parts intimately connected and every link hanging on a former, requires the utmost effort of the human genius. Have I not reason to think so, considering how imperfect in that respect the far greater part of law-books are; witness in particular the famous body of Roman law compiled under the auspices of the Emperor Justinian,1 remarkable even among law-books for defective arrangement? Let the candid reader keep this in view, and he will be indulgent to the errors of arrangement in this edition, if after my utmost application, any remain.

But imperfect arrangement in the former editions, is not the only thing that requires an apology. Frequent and serious reflection on a favourite subject, have unfolded to me several errors, still more material, as they concern the reasoning branch of my subject. These I blush for; and yet, to acknowledge an erroneous opinion, sits lighter on my mind than to persevere in it.

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CONTENTS

  • volume i.
  • Introduction, 17
  • book i. Powers of a court of equity derived from the principle of justice, 39
    • part 1. 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, 39
      • chap. 1. Powers of a court of equity to remedy what is imperfect in common law, with respect to the protecting individuals from harm, 40
        • sect. 1. Harm done by a man in exercising a right or privilege, 41
        • sect. 2. Harm done by one who has it not in view to exercise any right or privilege, 48
        • sect. 3. A man tempted or overawed by undue influence to act knowingly against his interest, 52
          • Art. 1. Where a man, yielding to a temptation, acts knowingly against his interest, 52
          • Art. 2. Where a man is overawed to act knowingly against his interest, 53
        • sect. 4. A man moved to act unknowingly against his interest, by fraud, deceit, or other artificial means, 62
        • sect. 5. What remedy is applied by a court of equity against the wrongs above stated, 67
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      • 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, 71
      • chap. iii. Powers of a court of equity to remedy what is imperfect in common law, with respect to the natural duty of benevolence, 74
        • sect. 1. Connections that make benevolence a duty when not prejudicial to our interest, 77
        • sect. 2. Connections that make benevolence a duty even against our interest, 88
          • Art. 1. Connections that entitle a man to have his loss made up out of my gain, 88
          • Art. 2. Connections that entitle a man who is not a loser to partake of my gain, 103
          • Art. 3. Connections that entitle one who is a loser to be indemnified by one who is not a gainer, 109
      • chap. iv. Powers of a court of equity to remedy what is imperfect in common law with respect to deeds and covenants, 117
        • sect. 1. Where will is imperfectly expressed in the writing, 122
          • Art. 1. Where the words leave us uncertain about will, 123
          • Art. 2. Where the words are short of will, 128
          • Art. 3. Where the words go beyond will, 132
        • sect. 2. Implied will, 141
        • sect. 3. Whether an omission in a deed or covenant can be supplied, 144
        • sect. 4. A deed or covenant that tends not to bring about the end for which it was made, 154 Edition: current; Page: [11]
        • sect. 5. Equity with respect to a deed providing for an event that now can never happen, 160
        • sect. 6. Errors in deeds and covenants, 162
        • sect. 7. A deed or covenant being void at common law as ultra vires, can a court of equity afford any relief, 179
        • sect. 8. Where there is a failure in performance, 185
        • sect. 9. Indirect means employed to evade performance, 194
      • chap. v. Powers of a court of equity to remedy what is imperfect in common law with respect to statutes, 195
        • sect. 1. Where the will of the legislature is not justly expressed in the statute, 207
          • Art. 1. Where the words are ambiguous, 207
          • Art. 2. Where the words fall short of will, 208
          • Art. 3. Where the words go beyond will, 208
        • sect. 2. Where the means enacted fall short of the end purposed by the legislature, 210
        • sect. 3. Where the means enacted reach unwarily beyond the end purposed by the legislature, 219
      • chap. vi. Powers of a court of equity to remedy what is imperfect in common law with respect to matters between debtor and creditor, 224
        • sect. 1. Injustice of common law with respect to compensation, 225
        • sect. 2. Injustice of common law with respect to indefinite payment, 231
        • sect. 3. Injustice of common law with respect to rent levied indefinitely, 236
      • chap. vii. Powers of a court of equity to remedy what is defective in common law with respect to a process, 240
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  • volume ii.
  • book i. part i.
    • chap. viii. Powers of a court of equity to remedy what is imperfect in common law with respect to legal execution, 245
      • sect. 1. Where the common law is defective, 245
        • Art. 1. Subjects that cannot be attached by the executions of common law, 246
        • Art. 2. Circumstances where even common subjects are withdrawn from these executions, 247
        • Art. 3. These executions are in some cases imperfect, 250
        • Art. 4. They serve only to make debts effectual, and give no aid to other claims, 251
      • sect. 2. Where the common law with respect to execution is oppressive or unjust, 253
    • appendix to chapter viii. 258
    • chap. ix. Powers of a court of equity to inflict punishment, and to mitigate it, 263
  • 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, 274
    • chap. i. How far a covenant or promise in favour of an absent person, is effectual, 275
    • chap. ii. Powers of a court of equity to repress immoral acts that are not pecuniary, 287
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  • book ii. Powers of a court of equity founded on the principle of utility, 289
    • chap. i. Acts in themselves lawful reprobated in equity as having a tendency to corrupt morals, 290
    • chap. ii. Acts and covenants in themselves innocent prohibited in equity, because of their tendency to disturb society, and to distress its members, 292
    • chap. iii. Regulations of commerce, and of other public concerns, rectified where wrong, 295
    • chap. iv. Forms of the common law dispensed with in order to abridge law-suits, 297
    • chap. v. Bonafides as far as regulated by utility, 300
    • chap. vi. Interposition of a court of equity in favour even of a single person to prevent mischief, 304
    • chap. vii. Statutes preventive of wrong or mischief extended by a court of equity, 305
    • conclusion of Book II. Justice and Utility compared, 311
  • book iii. Application of the principles of equity and utility to several important subjects, 315
    • chap. i. What equity rules with respect to rents levied upon an erroneous title of property, 315
    • chap. ii. Powers of a court of equity with respect to a conventional penalty, 324
    • chap. iii. What obligations and legacies transmit to heirs, 328
    • chap. iv. Arrestment and process of forthcoming, 333
    • chap. v. Powers of a court of equity with relation to bankrupts, 345
    • chap. vi. Powers and faculties, 379 Edition: current; Page: [14]
    • chap. vii. Of the power which officers of the law have to act extra territorium, 395
    • chap. viii. Jurisdiction of the court of session with respect to foreign matters, 401
      • sect. 1. Personal actions founded on foreign covenants, deeds, or facts, 405
      • sect. 2. Foreign covenants and deeds respecting land, 409
      • sect. 3. Moveables domestic and foreign, and their legal effects, 411
      • sect. 4. Debts whether regulated by the law of the creditor’s country or that of the debtor, 416
      • sect. 5. Foreign evidence, 420
      • sect. 6. Effect of a statute, of a decree, of a judicial conveyance, or legal execution, extra territorium, 421
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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.

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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 applied for payment, first of the interest, and next of the capital.

Writer, scrivener.

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INTRODUCTION*

Equity, scarce known to our forefathers, makes at present a great figure. It has, like a plant, been tending to maturity, slowly indeed, but constantly; and at what distance of time it shall arrive at perfection, is perhaps not easy to foretell. Courts of equity have already acquired such an extent of jurisdiction, as to obscure in a great measure courts of law.1 A revolution so signal, will move every curious enquirer 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 a court of law and a court of equity. The former we know follows precise rules: but does the latter act by conscience solely without any rule? This would be unsafe while men are the judges, liable no less to partiality than to error: nor could a court without rules ever have attained that height of favour, and extent Edition: orig; Page: [2] of jurisdiction, which courts of equity enjoy. But if a court of equity be governed by rules, why are not these brought to light in a system? One would imagine, that such a system should not be useful only, but 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 Edition: current; Page: [18] 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 the 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 commonly happens, was at first confined within narrow bounds. To these courts power was given to enforce duties essential to the Edition: orig; Page: [3] existence of society; such as that of forbearing to do harm or mischief. Power was also given to enforce 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 authority of a court to natural duties of every sort, would, in a new experiment, have been reckoned too bold. Thus, among the Romans, many pactions were left upon conscience, without receiving any aid from courts of law: buying and selling only, with a few other covenants essential to commercial dealing, were regarded.2 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 ordinary life, we are not at liberty to suppose that any other was more privileged. Edition: orig; Page: [4]

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 Edition: current; Page: [19] arising in 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 Edition: orig; Page: [5] 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, Pleas of the crown. Such extraordinary causes, multiplying greatly by complex and intricate connections among individuals, 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 remote, and therefore less interested in foreign affairs, there was not the same necessity for this innovation: our kings, however, addicted to action more than to contemplation, neglected in a great measure their privilege of being judges, and suffered causes peculiar to the king and Edition: orig; Page: [6] 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,3 or according to what the judge in conscience thinks Edition: current; Page: [20] 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 Edition: orig; Page: [7] not ascertained by any natural rule, 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 Britain4 was originally not so extensive as at present; and instances will be mentioned afterward, which evince, that the common law is in Scotland 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.5

Among a plain people, strangers to refinement and subtilties, law-suits may be frequent, but never are intricate. Regulations to restrain individuals from doing mischief, and to enforce performance of covenants, composed originally the bulk Edition: orig; Page: [8] 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, in that early period, little felt, and less regarded. But law, in this simple form, cannot long continue stationary: Edition: current; Page: [21] 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, though no way connected but by contiguity and resemblance of condition, are sensible, however, Edition: orig; Page: [9] 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, formerly disregarded. The duties that arise from connections so slender, are taken under the jurisdiction of a court of equity; which at first exercises its jurisdiction with great reserve, interposing in remarkable cases only, where the duty is palpable. But, gathering courage from success, it ventures to enforce 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 Edition: orig; Page: [10] system.a In rude Edition: current; Page: [22] 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; 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 Edition: orig; Page: [11] disorder, ought not the friend who undertakes the management to be kept indemnis,6 though the subject upon which his money was usefully bestowed may have afterward perished casually?7 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 enforcing 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 Edition: orig; Page: [12] 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 Edition: current; Page: [23] the common law, and 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 at common law.

The duties hitherto mentioned arise from connections independent altogether of consent. Covenants and promises also, are the source of various duties. The most obvious of these duties, being commonly declared in words, belong to 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, 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 Edition: orig; Page: [13] 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 supplies a defect in words, where will is evidently more extensive: it rejects words that unwarily go beyond will; and it gives aid to will where it happens to be obscurely or imperfectly expressed.8 By taking such liberty, a covenant is made effectual according to the aim and purpose of the contractors; 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 anomalous. But with respect to the circumstances that occur in the same Edition: orig; Page: [14] cause, it cannot fail to appear singular, that a court Edition: current; Page: [24] should be confined to a few of these circumstances, neglecting others no 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 bond9 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, namely, the sum borrowed, must follow the words of the bond, and give judgment 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 Edition: orig; Page: [15] covenants altogether from the common law, or to impower the judges of that law 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 Edition: current; Page: [25] 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 in its application to some singular cases. Every work of man Edition: orig; Page: [16] 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 porregi 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 Edition: orig; Page: [17] which justice enters not, but only 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:10 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.11 This court goes farther: it discountenances many things in themselves indifferent, merely because of their bad tendency. A pactum de Edition: current; Page: [26] quota litis12 is in itself innocent, and may be beneficial to the client as well as to the advocate: but to remove the temptation that advocates are under 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. Edition: orig; Page: [18]

A mischief that affects the whole community, figures in the imagination, and naturally moves 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.13 A similar example is, where a court of equity gives authority to sell the land of one under age, where the sale is necessary for payment of debt: to decline interposing, would be ruinous to the proprietor; for without authority of the court no man will venture to purchase from one under age. Here the motive is humanity to a single individual: but it would be an Edition: orig; Page: [19] 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 court properly, giving or denying action, in order to answer the end purposed: but in the cases now mentioned, and in others 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,14 from necessity, Edition: current; Page: [27] without any express authority. “Jus praetorium est quod praetores introduxerunt, adjuvandi vel supplendi vel corrigendi juris Civilis gratia, propter utilitatem publicam.”*

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 matters, which must be premised before entering into particulars. The first I shall insist on is of the greatest moment, namely, Whether a court of Edition: orig; Page: [20] 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 judgment 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 worse, will often be arbitrary, and substantially unjust; for such too frequently are human proceedings Edition: orig; Page: [21] 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 somewhere; for courts cannot be established without end, to be checks one upon another. And hence it is, Edition: current; Page: [28] 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 Edition: orig; Page: [22] judicis, optimus judex qui minimum sibi.”*

In perusing the following treatise, it will be discovered, that the connections 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 solely to the grosser connections of interest? doth any connection founded on property make an impression equally strong with that of friendship, or blood-relation, or of country? doth not the law of nature form duties on the latter, more binding in conscience than on the former? Yet the more conscientious duties are left commonly to shift for themselves, while the duties founded on interest are supported and enforced 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 Edition: orig; Page: [23] mentioned, are commonly ascertained and circumscribed, so as to be susceptible of a general rule to govern 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 Edition: current; Page: [29] 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 enforcing 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 Edition: orig; Page: [24] 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.

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. The circumstances that found a right at common law, being always few and weighty, are not variable: a bond of borrowed money, for example, must subsist till it be paid. A claim in equity, on the contrary, seldom arises without a multipli-Edition: orig; Page: [25]city of circumstances; which make it less permanent, for if but a single circumstance be withdrawn, the claim is gone. Suppose, for example, that an infeftment of annualrent15 is assigned to a creditor for his security: the creditor 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,16 without hurting the assignee. But if the cedent have another creditor who arrests17 the interest, the equitable rule now mentioned ceases, and gives Edition: current; Page: [30] 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 adjudges18 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 creditor,19 ought to deal impartially between them: if he be not willing to take Edition: orig; Page: [26] 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,20 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 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 different, the boundary between equity and common law, where the legislature doth not Edition: orig; Page: [27] 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 it is fully established in practice; and then it is considered as common law: thus the actio negotiorum gestorum,21 retention, salvage, &c. are in Scotland scarce now considered as depending on principles of equity. But by cultivation of society, and practice of law, Edition: current; Page: [31] 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 by common law.

What is now said suggests a question, no less intricate than important, 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 Edition: orig; Page: [28] 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 political interest, being the most involved in circumstances, are the most difficult to be brought under precise rules. I pretend not to deliver any opinion; 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 feel the weight of the argument urged in the passage above quoted. 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 Edition: orig; Page: [29] relieved from determining this preliminary point, will be apt to lose sight altogether of the distinction between 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 one who has a claim to prosecute? Before bringing his action, he must at his peril determine an extreme nice point, Whether the case be governed by common Edition: current; Page: [32] law, or by equity. An error in that 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 always 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 extremely uncouth, that a court should be so constituted, as to be tied down in many instances to pronounce an iniquitous judgment. This not only happens frequently with respect to covenants, as above mentioned, but will always happen where a claim founded on common law, which Edition: orig; Page: [30] 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; so far at least, as that the court before which a claim is regularly brought, should be empowered to judge of every defence that is laid against it. The sole inconvenience of an united jurisdiction, 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 are suggested with the greatest diffidence; for I cannot be ignorant of the bias that naturally is produced by custom and established practice.22

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 Edition: orig; Page: [31] being the supreme court in civil matters;23 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. It is probable, Edition: current; Page: [33] that this power was not intended, nor early thought of; and that it was introduced by necessity. That the court itself had at first no notion of being possessed of this power, is evident from the act of sederunt,24 November 27, 1592, declaring, “That in time coming they will judge and decide upon clauses irritant25 contained in contracts, tacks,26 infeftments,27 bonds and obligations, precisely according to the words and meaning of the same;”28 which in effect was declaring themselves a court of common law, not of equity. But the mistake was 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 Edition: orig; Page: [32] institution of a court. When the Roman Praetor 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,29 upon fraud, &c. is not competent before an inferior court. But if against a process founded on common law an equitable defence be stated, it is the practice of inferior courts to judge of such defence. Imitation of the supreme court, which judges both of law and equity, and the inconvenience of removing to another court a process that has perhaps long depended, paved the Edition: orig; Page: [33] way to this enlargement of power. Another thing Edition: current; Page: [34] 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, are too trifling, or too ludicrous, to merit the countenance of Edition: orig; Page: [34] 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 that manner, because there is no law against it; but 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.30 A man having taken a piece of gold, under condition to pay back a greater sum, in case he should be ever 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 Edition: orig; Page: [35] 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, Edition: current; Page: [35] 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 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 will relieve him: but in the present case there is no evidence, nor indeed suspicion, of inequality. It was replied, That it tends Edition: orig; Page: [36] not to the good of society to sustain action upon such bargains:31 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 not 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 Edition: orig; Page: [37] equitable principles to a Edition: current; Page: [36] 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.

Having thus given a general view of my subject, I shall finish with explaining my motive for appearing in print. 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 Pagan 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 them-Edition: orig; Page: [38]selves; and are no 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 no 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 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 no 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 se-Edition: orig; Page: [39]cure against every insult or wrong. By that means, peace and concord in society are promoted; and individuals are finely disciplined to submit with the like deference to all other acts of legal authority. Integrity is not the only duty required in a judge: to Edition: current; Page: [37] behave so as to make every one rely upon his integrity, is a duty no less essential. Deeply impressed with these notions, I dedicate my work to every lover of science; having endeavoured to explain the subject in a manner that requires in the reader no particular knowledge of municipal law. In that view I have avoided terms of art; not indeed with a scrupulous nicety, which might look like affectation; but so as that with the help of a law-dictionary, what I say 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 Edition: orig; Page: [40] 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; in which I have endeavoured to ascertain all the principles of equity that occurred to me. I thought it would benefit the reader to have these principles illustrated in a third book, where certain important subjects are selected to be regularly discussed from beginning to end; such as furnish the most frequent opportunities for applying the principles ascertained in the former part of the work. Edition: orig; Page: [41]

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BOOK I: 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 arises from a principle, That where there is a right, it ought to be made effectual; in the latter, from another prin-Edition: orig; Page: [42]ciple, That for every wrong there ought to be a remedy. In both, the object commonly is 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 that 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 Edition: orig; Page: [43] order. The following arrangement, if not the best, seems at least to be natural and easy. 1. Imperfections Edition: current; Page: [40] of common law in protecting men from being harmed by others. 2. In protecting the weak of mind from harming themselves. 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 statutes. 6. With respect to transactions between debtor and creditor. 7. With respect to actions at law. 8. With respect to legal execution. 9. Power of a court of equity to inflict punishment.

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

The social state, however desirable, could never have taken place among men, were they not restrained from inju-Edition: orig; Page: [44]ring those of their own species. To abstain from injuring others, is accordingly the primary law of society, enforced by the most vigorous sanctions: every culpable transgression of that law, subjects the wrong-doer to reparation; and every intentional transgression, subjects him also to punishment.

The moral principle of abstaining from injuring others, naturally takes the lead in every institute of law; and as the enforcing that principle was 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.

With respect to harm done intentionally, there is no imperfection in common law, and consequently no necessity for a court of equity. But that court may be necessary in the following cases. First, Harm done by one in exercising a right or privilege. Second, Harm done by one who has it not in view to exercise any right or privilege. Third, A man tempted or overawed by undue influence to act Edition: orig; Page: [45] knowingly against his interest. Fourth, A man moved to act unknowingly against his interest, by fraud, deceit, or other artificial means. I close the chapter with the remedies that Edition: current; Page: [41] are applied by a court of equity against the wrongs above stated. Of these in their order.

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

The social state, which on the one hand is highly beneficial by affording mutual aid and support, is on the other attended with some inconveniences, as where a man cannot have the free exercise of a right or privilege without harming others. How far such exercise is authorised by the law of our nature, is a question of nice discussion. That men are born in a state of freedom and independence is an established truth; but whether that freedom and independence may not admit of some limitation from the collision of opposite rights and privileges, deserves to be examined. If the free exercise of my right Edition: orig; Page: [46] 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 right 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 of whom must be thrust off, otherwise both will 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 no less beautiful than salutary. This rule consists of two branches: the first is, That the exercising my 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 exercising my right I am not answerable for any indirect or consequential damage that another may suffer; and so far the Edition: orig; Page: [47] 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 of morality, That no interest of mine, not Edition: current; Page: [42] 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 easy in its application, requires much illustration. I begin with the first branch. However profitable it may be to purge my 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 Edition: orig; Page: [48] 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 encroachments upon his property. Neratius puts the case of a lake which in a rainy season overflows the neighbouring fields, to prevent which on one side, a bulwark is erected. He is of opinion, that if this bulwark have the effect, in a rainy season, to throw a greater quantity of water than usual upon the opposite fields, it ought to be demolished.§,1 As the damage here is only Edition: current; Page: [43] occasional or accidental, this opinion is not well founded. It has not even a plausible appearance. Is it not natural and common for a proprietor to fence his bank, in order to prevent the encroachments of a river or of a lake? The course of the river is not altered; and the proprietor on the opposite side may fence his bank, if he be afraid of encroachments. Edition: orig; Page: [49]

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,2 as expressed in the Roman law. But the principle of abstaining to hurt others regards persons as well as property. “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 life uncomfortable. Upon the same ground, the court of session was of opinion, that the working in the upper storey 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.

As to the second branch of the rule, it Edition: orig; Page: [50] is agreed by all, as above mentioned, that where a river gradually encroaches on my property, I may fence my bank in order to prevent further encroachments; for this work does not tend to produce even indirect or consequential damage: all the effect it can have is, to prevent my neighbour from gaining ground on his side.3

In matters of common property, the application of this second branch Edition: current; Page: [44] is sometimes more intricate. A river or any running stream directs its course through the land of many proprietors; who are thereby connected by a common interest, being equally intitled to the water for useful purposes. Whence it follows, that the course of the river or running stream cannot be diverted by any one of the proprietors, so as to deprive others of it. Where there is plenty for all, there can be no interference: but many streams are so scanty, as to be exhausted by using the water too freely, leaving little or none to others. In such a case, there ought to be a rule for using it with discretion; though hitherto no rule has been laid down. To supply the defect in some measure, I venture to suggest the following particulars, which practice Edition: orig; Page: [51] may in time ripen to a precise rule. It will be granted me, that if there be not a sufficiency of water for every purpose, those purposes ought to be preferred that are the most essential to the well-being of the adjacent proprietors. The most essential use is drink for man and beast; because they cannot subsist without it. What is next essential, is water for washing; because cleanness contributes greatly to health. The third is water for a corn-mill, which saves labour, and cheapens bread. The fourth is watering land for enriching it. The fifth is water for a bleachfield. And the lowest I shall mention, is water for machinery, necessary for cheapening the productions of several arts. There may be more divisions; but these are sufficient in a general view. From this arrangement it follows, that one may use the water of a rivulet for drink, and for brewing and baking, however little be left to the inferior heritors.4 But a proprietor cannot be deprived of that essential use by one above him, who wants to divert the water for a mill, for a bleachfield, or for watering his land. Nor can a proprietor divert the water for a bleachfield, or for Edition: orig; Page: [52] watering his land, unless he leave sufficient for a mill below. According to this doctrine, I may lawfully dig a pit in my own field 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.*

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Under this head comes a question that may be resolved by the principles above laid down, which is, How far the free use of a river in carrying goods can be prevented or impeded by a cruive for catching salmon. It is admitted, that a navigable river fit for sailing, ought to be free to all for the purposes of commerce; and that the navigation ought not to be hurt, or rendered difficult, by any work erected in the channel of the river. But supposing a river that can only admit the floating of timber, is it lawful to erect there a cruive with a dam-dike, so as to prevent that operation? A cruive for catching salmon is an extraordinary privilege, granted to a single proprietor, prejudicial to all above who have right to fish salmon. The floating of timber, on the contrary, Edition: orig; Page: [53] is profitable to the proprietor, and to every person who stands in need of that commodity. A cruive, therefore, ought to yield to the floating of timber, as far as these rights are incompatible. But will positive prescription5 give no aid to the proprietor of a cruive in this case? This prescription regulates the competition among those who pretend right to the same subject; but protects not the possessor from burdens naturally affecting his property. Now it is a rule, That property, which is a private right, must yield to what is essential for the good of the nation. In order to defend a town besieged, a house standing in the way ought to be demolished. The right of property will not avail in this case, even admitting the proprietor and his predecessors to have been in possession for a century. Or suppose, that to repel a foreign enemy, my field is found to be an advantageous situation for the national troops, it is lawful to encamp upon it, though the consequence be to destroy the trees, and all it produces. Or, to come nearer the present case, a manufacturing village is erected on the brink of a rivulet, which is used for a mill below Edition: orig; Page: [54] that has been in constant exercise forty years and upward. The manufactures succeed, and the village becomes so populous as nearly to exhaust the water in drink for man and beast, in brewing, and in other purposes preferable to that of a mill. Yet I take it for granted, that positive prescription will not protect the proprietor of the mill; because here there is no competition, but only property subjected to the burdens that naturally attend it. The transition from this example to the case in hand is direct. The Edition: current; Page: [46] possession of a cruive for a hundred years, will not bar a superior heritor from planting trees, nor consequently from floating them down the river for sale; for evidently positive prescription can have no operation in this case. It can have no effect but to bestow upon the possessor the property of the cruive, which otherwise might have been doubtful. But such property must, like all other property, be subjected to its natural burdens; and cannot stand in the way of a right of greater importance to the public.

It is lawful for me to build a house upon my march,6 though it intercept the light Edition: orig; Page: [55] from a neighbouring house; for this is consequential damage only: beside, that if my neighbour choose to build on his march, he must see that I am equally intitled.

With regard to this section in general, there is a limitation founded entirely upon equity; which is, That though a man may lawfully exercise his right for his own benefit where the harm that ensues is only consequential; yet that the exercise is unlawful if done intentionally to distress others, without any view of benefiting himself. Rights and privileges are bestowed on us for our own good, not for hurting others. 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 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 e-Edition: orig; Page: [56]quity, 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.7 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.

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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 Edition: orig; Page: [57] to distress the defendant, and done in aemulationem vicini.

In order to establish the jus crediti8 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 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 conveyed his right to the assignee: and Edition: orig; Page: [58] 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 what is imperfect in common law, will oblige the debtor to make payment over again to the assignee, as reparation of the wrong done him.

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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 is 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 however sufficient to bar the debtor from making payment to the cedent. The court went farther: they were of opinion, that the assignee Edition: orig; Page: [59] having shown his assignment to the debtor, though without intimating the same by a notary, the debtor could not 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 fide.9 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.

SECTION II: Harm done by one who has it not in view to exercise 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 Edition: orig; Page: [60] 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. 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: the passion Edition: current; Page: [49] of resentment, in a fierce and lawless people, is roused by the slightest harm; and is too violent for any deliberate distinction between intentional and culpable wrong. In fact, both were equally subjected to punishment, even after the power of punishment was transferred to the magistrate. Of this we have a notable example in the lex Aquilia among the Romans: “Qui servum alienum, quadrupedem vel pecudem, injuria occiderit; quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto.”* Here the word injuria1 is interpreted, “quod Edition: orig; Page: [61] 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 levissima2 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 surprising 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 great talents, and was celebrated all the world over 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?

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When such was the common law of the Romans with regard to punishment, there Edition: orig; Page: [62] 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, 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, Edition: orig; Page: [63] 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 for the security of individuals in society, it is not sufficient 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. 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 Edition: orig; Page: [64] window in my house, or have his cloaths sullied by dirty water Edition: current; Page: [51] poured 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. With respect to animals, it is the proprietor’s duty to keep them from doing harm; and if harm ensue that might have been foreseen, he is bound to repair it; 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.* As to things, it is also the duty of the proprietor to keep them from doing harm. Thus both fiar3 and liferenter4 were made liable to repair the hurt occasioned to a neighbouring tenement by the fall of their house. It is the duty of a man who carries stones in a waggon a-Edition: orig; Page: [65]long the highway, to pack them so as 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 enclosure, 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 Edition: current; Page: [52] as well as commissions; and therefore so far the common law appears complete, leaving no gleanings to a court of equity. Edition: orig; Page: [66]

SECTION III: A man tempted or overawed by undue influence to act knowingly against his 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 advantage of the latter to distress a person by acts of violence be a moral wrong, intitling the sufferer to reparation, it is no 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, yielding to a temptation, acts knowingly against his interest: the next, where he is overawed to act knowingly against his interest. Edition: orig; Page: [67]

ARTICLE I.: Where a man, yielding to a temptation, acts knowingly against his 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.* Edition: current; Page: [53] Upon this case it ought to be observed, that though fraud and circumvention Edition: orig; Page: [68] 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 circumvented 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 give away 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 is of no avail, more than the consent of a child. With respect to the end, it is no less pernicious than theft or robbery. Edition: orig; Page: [69]

ARTICLE II.: Where a man is overawed to act knowingly against his 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,1 the debtor engaged 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. Edition: orig; Page: [70] Upon the same ground, a bond for a sum taken from Edition: current; Page: [54] the principal debtor by his cautioner2 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 wadset3 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. This paction is in the Roman law named lex commissoria in pignoribus,4 and in that law seems to be absolutely 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 fol-Edition: orig; Page: [71]lowing a general rule applicable to all cases of the kind; which is, to admit the debtor to redeem his pledge by payment, at any time, till the creditor in a declaratory process5 signify his will to hold the pledge 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 can be demanded by the creditor. And thus, the declarator serves a double purpose: it relieves the debtor from the hardship of a penal irritancy, by furnishing him an opportunity to pay the debt; and Edition: current; Page: [55] if he be silent, the extracted decree operates a transference of the property to the creditor, which extinguishes the debt.

Hence it follows, that the debtor can redeem the wadset or pledge, whether the bargain be lucrative or no. A declarator being necessary, the property is not transferred to the creditor, if the debtor be willing to redeem his pledge: and this option he must have, whether the creditor have made profit or no 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 Edition: orig; Page: [72] have an option to redeem even after the term limited, until the equity of redemption6 be foreclosed by a declarator; and if a declarator be necessary, as is proved, the debtor must have his option, even where the creditor has drawn less than his interest.

In equity, however, there is a material difference 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. 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 tho’ the rents have fallen short of the interest. But if the debtor insist upon the equity of redemption after the term to which the re-Edition: orig; Page: [73]demption is limited; he must, beside repaying the sum borrowed, make good the interest, as 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.*

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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. 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. Edition: orig; Page: [74]

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. 1592.7 And, by the authority of that statute, such pactions may be brought under challenge in courts of common law, against which otherwise no remedy was competent except in a court of equity.

It was perhaps the statute now mentioned that 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.”8 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: Edition: orig; Page: [75] 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 other matters.

It is usury by statute to bargain with a debtor for more than the legal interest;9 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. Edition: current; Page: [57] But tho’ 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 the judge’s conduct? Must he give an opinion upon every wadset according to its peculiar circumstances? or ought he to follow some Edition: orig; Page: [76] 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 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 Edition: orig; Page: [77] 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 case; which is, to oblige the creditor to account for what 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 Edition: current; Page: [58] benefit he draws from it, when he runs no chance of getting less than the legal interest.

Pacta contra fidem tabularum nuptialium10 belong to this article. Such private pac-Edition: orig; Page: [78]tions between the bridegroom and his father, contrary to the marriage-articles openly agreed on, are hurtful to the wife and children; who will therefore be relieved upon the head of fraud. But the husband cannot be so relieved, because as to him there is no fraud: he is relieved upon the head of extortion. 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 afterward having privately before the marriage granted bond for a certain sum to his father, it was voided at the wife’s in-Edition: orig; Page: [79]stance, 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 £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 exercised, the defendants were assoilzied,11 the deed granting the faculty being in fraudem pactorum Edition: current; Page: [59] nuptialium.12,* The following cases relate to the other branch, namely oppression, intitling the husband to reduce deeds granted by him-Edition: orig; Page: [80]self. 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 warrandice.13 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.14, A discharge of part of the portion before solemnization of the marriage, 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 marriage-treaty. In England the same rule of equity obtains. 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 Edition: orig; Page: [81] mother surrenders part of her jointure15 to enable her son to make a settlement upon the bride, and the bride’s father agrees to give £3000 portion. The bridegroom, without privity of his mother, gives a bond to the bride’s father, to pay back £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 Edition: current; Page: [60] 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, Edition: orig; Page: [82] Condictio16 ob injustam causam.17 To take money for doing what I am bound to do without it, must be extortion: I hold the money sine justa causa18 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 curator19 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 unequal, 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 £350 to pay £700 when the lives should fall, and Edition: orig; Page: [83] mortgages the estate as a security. Tho’ both the tenants for life died within two years, yet the bargain being equal, no relief was given against it.|| A young man, presumptive heir to an Edition: current; Page: [61] estate-tail20 of £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 £30 paid him in money, and a security for £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 £1000 from the defendant, became bound, in case he survived his father, to pay the defendant £5000 within a month after his father’s death, with interest; but that, Edition: orig; Page: [84] 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 rehearing before Lord Chancellor Jeffreys, it was insisted, That the clause freeing the plaintiff from the debt if he died before his father, made no difference; 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 Edition: orig; Page: [85] Mordaunt, granted bond at London, after the English form, to Dr William Abercromby, bearing, “That £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 £840 to the Doctor, two months after the Earl’s death; and if he, the Lord Mordaunt, died in the lifetime Edition: current; Page: [62] of the Earl, the obligation was to be void.” Upon the death of the Earl of Peterborough, 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.* Edition: orig; Page: [86]

SECTION IV: A man moved to act unknowingly against his interest, by fraud, deceit, or other artificial means.

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 Edition: orig; Page: [87] 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 judgment,1 understanding the writing to be of a different import. Edition: current; Page: [63] In selling a house, it being a lie to affirm that the rent is £30, instead of £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.

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 e-Edition: orig; Page: [88]quity. Thus a policy of insurance was set aside upon fraud by a bill in chancery.*

We next proceed to enquire, whether every deceitful practice to impose upon others comes under common law.2 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 may be deceived or misled, 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. Where a man is 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 Edition: orig; Page: [89] 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. 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.

Edition: current; Page: [64]

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 Edition: orig; Page: [90] 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 to a composition,3 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 animus4 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;5 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.6 Other circumstances may concur with in-Edition: orig; Page: [91]solvency 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 Edition: current; Page: [65] execution7 against him. 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 were 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-Edition: orig; Page: [92]settlement A is tenant for life of certain mills, remainder to his first son in tail.8 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 justice 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.,9 The defendant on a treaty of marriage 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 Edition: current; Page: [66] 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 Edition: orig; Page: [93] 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 compensation10 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. To mortgage land as free when there is an incumbrance upon it, is a cheat in the borrower; to which cheat the in-Edition: orig; Page: [94]cumbrancer 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 Edition: current; Page: [67] conceals, advises B to lend A £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, 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, Edition: orig; Page: [95] his mortgage will be postponed.,11 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.,12

SECTION V: What remedy is applied by a court of equity against the wrongs above stated.

It is proper to be premised, that regulations for preventing harm cannot be other but prohibitory; and consequently cannot afford opportunity for the Edition: current; Page: [68] 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 Edition: orig; Page: [96] as the most complete remedy. 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,1 and when that is the case, the person injured, who cannot be restored to his former situation, must be contented with reparation in money.

The first question that occurs here is, Whether in money-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 him; which is not Edition: orig; Page: [97] 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 not 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 regularly incumbent on 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 from 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 Edition: current; Page: [69] Edition: orig; Page: [98] criminal act, the consequences of this uncertainty ought to affect the delinquent, 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,2 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 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,3 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;4 and it is more expedient that he Edition: orig; Page: [99] suffer some prejudice, than that men should be terrified from industry and activity, by a rigorous and vague claim.a This doctrine is espoused by Ulpian:* “Item Labeo scribit, si cum vi ventorum alio modo, nisi praecisis funibus explicare se potuit, nullam actionem dandam. Idemque Labeo, et Proculus, et circa retia piscatorum, in quae navis inciderat, aestimarunt. Edition: current; Page: [70] 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 reach-Edition: orig; Page: [100]es 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, which might have been ascertained by inspecting the Duke’s title on record. But as to the consequential damage, namely, the profits Robertson could have made by the ship Edition: orig; Page: [101] had he not been unjustly deprived of the possession, which must be uncertain, the court unanimously rejected that branch of the claim.

The next question is, Whether in estimating damage there be ground in any case for admitting the pretium affectionis.5 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 affectione, nec utilitate singulorum, sed communiter fungi. Itaque eum, qui filium naturalem possidet, non eo locupletiorem esse, Edition: current; Page: [71] quod eum plurimo, si alius possideret, redempturus fuit: nec illum, qui filium alienum 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 Edition: orig; Page: [102] 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.

CHAPTER 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 imbecility 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 Edition: orig; Page: [103] who are not misled by undue influence, from hurting themselves by their own weakness and imbecillity. And here, though for the sake of commerce utility will not Edition: current; Page: [72] listen to a complaint of inequality among majores, scientes, et prudentes;1 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 in respect to every person.

I begin with deeds granted by persons under age, who cannot be supposed mature in judgment. 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 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, Edition: orig; Page: [104] 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 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 enforce the duty of gratitude, because it can seldom be brought under a general rule; but here the court 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. I put a third case. 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-male2 succeeds, who supplies this Edition: orig; Page: [105] 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 Edition: current; Page: [73] 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 the court 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 no less various than their faces: and as the world is seldom agreed about what is rational and irrational in such matters, there can be no rule for restraining the settlements of those who are not remarkably weak, Edition: orig; Page: [106] unless such settlements be not only irrational but absurd. But as the weak and facile are protected against unequal bargains, there is the same reason for their being protected against 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 instances rational, in others little better than delirious, never perfectly sound in 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;3 and the scroll she copied was furnished by the defendant, in whose favour Edition: orig; Page: [107] the testament was made, who had ready access to her at all times, while her brother lived at a distance. In reasoning 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 Edition: current; Page: [74] 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 health. Weight also was laid upon the following circumstance, That the testament was made remotis arbitris,4 and kept secret; which showed the defendant’s consciousness, that the testatrix would have been easily diverted by her friends from making so irrational a settlement. In this view, it was considered as a wrong in him to take from her, in these circumstances, an irrational Edition: orig; Page: [108] 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 1686.5

CHAPTER 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 Edition: orig; Page: [109] into a duty; and that duties of this kind, being neglected by the common law, are enforced 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 Edition: current; Page: [75] limited than the virtue. The virtue of benevolence may be exercised in 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 enlarge the estate of any person who has already a sufficiency, or to make him locupletior,1 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 Edition: orig; Page: [110] 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 Edition: current; Page: [76] indeed scarce felt to be such, but when it prevents or relieves from harm; and a favour naturally is returned in kind. Edition: orig; Page: [111]

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 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 Edition: orig; Page: [112] 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, namely, to relieve others from distress.

It appears then, that equity, with respect to 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 pre-Edition: orig; Page: [113]cise 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 enforced 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 into two sections. In the first are handled connections that make benevolence a duty when not prejudicial to our interest. In the second are Edition: current; Page: [77] 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 more intimate connection, to Edition: orig; Page: [114] 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.

SECTION 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 demands benevolence on the part of the creditor. The cautioner, when he pays the debt, suffers loss by the act of the creditor, though not by his fault; and the creditor will find himself bound in humanity, 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 Edition: orig; Page: [115] obtain relief from the principal. 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 on 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 acceptum Edition: current; Page: [78] videtur.”* From which consideration it follows, that this assignment may be demanded and granted ex post facto, if the precaution be omitted when the money is paid.

From this connection 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 cre-Edition: orig; Page: [116]ditor discharge or pass from his separate security, the cautioner, as 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, 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 Edition: orig; Page: [117] 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 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, in my apprehension, the mutual relief between co-cautioners. Of two cautioners bound for the same debt at different times and in different Edition: current; Page: [79] 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 clause is left out of a deed, it is natural to ascribe the omission to design rather than to forgetfulness. Edition: orig; Page: [118] The principal debtor is ex mandato1 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 im-Edition: orig; Page: [119]plied legal assignment, is the true foundation of the mutual relief among co-cautioners, which obtains both in Scotland and England.

Utility 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 Edition: current; Page: [80] 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 cau-Edition: orig; Page: [120]tioner, deducting only his own part of the debt, is unequal; because it evidently gives the assignee an advantage over his co-cautioners. On the other hand, the assignee is in a worse situation than any other of them, if he must submit to take from each of them separately his proportion 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 assignee. 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.2 This Edition: orig; Page: [121] method not only preserves equality, but avoids after-reckonings in cases 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 no more be actually drawn out of the estate of the co-cautioners, than what 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 Edition: current; Page: [81] 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,3 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 Edition: orig; Page: [122] to enforce this impartiality. And it makes no difference whether the correi debendi be bound for a civil debt, or be bound ex delicto;4 for in both causes 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, by having the same debtor, and a security upon the same subject. Hence it follows, as in the former case, that if it be the will of the preferable creditor 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 Edition: orig; Page: [123] must have drawn had not the preferable creditor intervened; and this sum is held to be the purchase-money of the 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. 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 concurs to support this equitable claim.

It is scarce necessary here to observe, that a supposed conveyance, sufficient as above mentioned to found a claim of relief among co-cautioners, Edition: current; Page: [82] 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 conveyed 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 Edition: orig; Page: [124] the preferable creditor to assign, the question is, To what extent. Whether ought the assignment to have a total effect, or only to put the disappointed creditor in the same situation as if the preferable creditor had 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 in England,* if the creditors sweep 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 Edition: orig; Page: [125] is that between the preferable creditor infeft in 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,5 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 equitable measure is, to 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 Edition: current; Page: [83] intitle him to draw out of the other subject, what he would have drawn out of his own, had the preferable creditor drawn proportionally 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 cumulo6 burdened with an Edition: orig; Page: [126] infeftment of annualrent. A man grants a rent-charge out of all his lands, and afterwards 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, 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 Edition: orig; Page: [127] is totally disappointed. 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 Edition: current; Page: [84] 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 distrain7 in all or any part of the lands for her rent; and there is no equity to abridge her remedy.* Edition: orig; Page: [128]

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 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 Edition: orig; Page: [129] 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 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 Edition: current; Page: [85] 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 Edition: orig; Page: [130] 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 by being both of them creditors to the same person, and both of them infeft on the same subject for security.

A question of great importance, that has frequently been debated in the court of session, appears to depend upon the principles above set forth. The question is, 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. With respect to feu-duties,8 cess,9 and teind,10 these are debita fructuum11 and at common law afford an action for payment against every person who levies the rents, and against a tenant in tail in particular.12 But this is not the case of the entailer’s personal debts, which burden the Edition: orig; Page: [131] heirs of entail personally, but not the fruits. Let us consider what that difference will produce. An heir in a fee-simple13 is 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 property, just as much if the estate were a fee-simple; and the consuming Edition: current; Page: [86] 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 burdens, unless what is a debitum fructuum.

A court of equity, less confined than a court of common law, finds this case resolvable into one above determined, namely, that of correi debendi, where several debtors are conjunctly bound for payment of one debt. There is no difference between correi debendi and heirs of entail, but that the former are all of them liable at Edition: orig; Page: [132] the same time, the latter only successively; 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; 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 entitled 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 curtesy14 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 or customary, in order to make the law rational. The law, autho-Edition: orig; Page: [133]rising the husband to possess 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.15,

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 £500 contained in a bond specified, without power of Edition: current; Page: [87] 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,16 bequeathing in the testament the foresaid bond of £500 to another relation. The testator’s effects, abstracting from the bond, not exceeding in value £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 Edition: orig; Page: [134] 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 do not hurt 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 Edition: orig; Page: [135] 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 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 encrease the estate of another. Thus, the Earl of Eglinton having built a mill upon the river of Irvine, and stretched Edition: current; Page: [88] 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 against all fu-Edition: orig; Page: [136]ture 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 encroachment on the pursuer’s property, and ordained the same to be removed or taken down as far as it occasioned the restagnation.*

SECTION 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 me to bestow upon another any portion of my substance, than merely to do a good office which takes nothing from me. The bulk of these connections, though extremely various, may be brought under the fol-Edition: orig; Page: [137]lowing heads. 1st, Connections that intitle a man to have his loss made up out of my gain. 2d, Connections that intitle a man who is not, properly speaking, a loser, to partake of my gain. 3d, Connections that intitle one who is a loser to a recompence from one who is not a gainer.

ARTICLE I.: Connections that intitle a man to have his loss made up out of my gain.

No personal connection, supposing the most intimate, that of parent and child, can make it an act of justice, that one who is a gainer, should repair Edition: current; Page: [89] the loss sustained by another, unless there be also some connection between the loss and gain; and that 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 that I consider to be my own, but which is afterward discovered to be the property of another; my loss in this case is Edition: orig; Page: [138] intimately connected with his gain, because in effect my money goes 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.1 When this connection is found in the highest degree, there is scarce requisite any other circumstance to oblige one to apply his gain for making up another’s loss: in its lower degrees no duty arises, unless the persons be otherwise strongly connected. Proceeding then to trace these degrees, the lowest I 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 Edition: orig; Page: [139] large cargo from abroad, retailing it 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 Edition: current; Page: [90] 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 which the one is deprived benefits the other. This is the case first mentioned, of money laid out by a bona fide possessor, in meliorating a subject that is afterward claimed by the proprietor. Edition: orig; Page: [140] The money that the former loses is gained by the latter.

A famous maxim of the Roman law, Nemo debet locupletari aliena jactura,2 is applicable 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. I observe first, 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. In the second and third cases above mentioned, the same cause that destroys Edition: orig; Page: [141] the one merchant is profitable to the other: yet no man who in such circumstances makes profit, finds himself bound in conscience to make up the other’s loss. It appears then, that this maxim, like most general maxims, is apt to mislead by being too comprehensive. Upon serious reflection, we find, that what a man acquires by his own industry, or by accident, however connected with the loss sustained by another, will not be taken from him to make up that loss, if there be no personal connection. The only real connection that of itself 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 the other’s loss as far as he himself is a gainer. Here the maxim, Nemo debet locupletari aliena jactura, taken in its most extensive sense, is applicable; Edition: current; Page: [91] and the single case, as 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 fide considers to be his own, bestows his money on reparations and meliorations,3 intending nothing but his own benefit: the Edition: orig; Page: [142] proprietor claims the subject in a process, and prevails: he profits by the meliorations; and the money bestow’d on these meliorations is converted to his use. Every one 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 the 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 separate existence upon which to found a rei vindicatio:4 the proprietor, in claiming the subject, does no more but exercise his own right; which cannot subject him personally to any demand. 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 uncomfortable 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 Edition: orig; Page: [143] 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, to save himself from loss, he takes advantage of an error committed by another: if there must be a loss, the moral sense 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,5 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 Edition: current; Page: [92] 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 ju-Edition: orig; Page: [144]stice. 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 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 internally by the delight it affords the human mind. No scene is more disgustful than that of things depending on 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 clearly applicable to the case above mentioned. The titles of land-property being intricate, and often uncertain, instances are frequent, where a Edition: orig; Page: [145] man in possession of land, the property of another, is led by unavoidable error to consider it as belonging to himself: his money is bestowed without hesitation on repairing and meliorating the subject. Equity will not permit the owner to profit by such a mistake, and in effect to pocket the money of the innocent possessor: he will be compelled by a court of equity to make up the loss, as far as he is locupletior. Thus the possessor of a tenement, having, on the faith and belief of its being his own, made considerable meliorations, was 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, 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 per-Edition: orig; Page: [146]son who gains, to make up the other’s loss.

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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 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 formula6 to authorise the action; for at first when brieves or forms of action were invented,* this claim was not thought of. But an exception7 was soon thought of to intitle the bona fide possessor to retain the subject, till he got payment of his expence; and this ex-Edition: orig; Page: [147]ception 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 broken through, and actiones in factum8 or upon the case,9 were introduced, which are 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, namely, 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 mandate: but if I can Edition: current; Page: [94] 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 gave no com-Edition: orig; Page: [148]mission; 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 it, perhaps more clearly than in the former, every one must be sensible, that the man who reaps the benefit is in duty bound to make up the other’s loss. Hence the action de in rem verso,10 the name of which we borrowed from the Romans. In a case precisely similar, the court inclined to sustain it relevant to assoilzie 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 alleged donation. Upon the supposition of a gift, it could not well Edition: orig; Page: [149] be specified that the defendant 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 comprehends 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 land, this is a positive accession to the subject, which makes the proprietor locupletior in the strictest sense of the word. But it may happen Edition: current; Page: [95] 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 transacts11 a claim that threatened to carry off Edition: orig; Page: [150] the property. Is the maxim applicable to cases of this kind, 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 encroachments of a river, makes the land sell at a higher price; and a real accession, such as a house built, or land enclosed, 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 evitando12 as well as where he claims money laid out upon meliorations; and the proprietor claiming the subject, is certans de lucro captando13 in the one case as well as in the other. Here equity supports the claim of him who is Edition: orig; Page: [151] certans de damno evitando; for, as observed above, there is in human nature a perception 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; which is the same whether it has been applied to prevent loss, or to make a real accession to a man’s 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 Edition: current; Page: [96] to the executrix qua next in kin, pursuer of the reduction, it was profitable by saving her the expence of a confirmation.* Edition: orig; Page: [152]

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 proves beneficial to another. But this will be found a rash thought, 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 Edition: orig; Page: [153] 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.14 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 casu15 a court of equity cannot interpose, but must leave them to the common law.

I add another limitation, which is not peculiar to the maxim under Edition: current; Page: [97] 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; Edition: orig; Page: [154] for otherwise a court of equity must not undertake to make up 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 mode 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, Edition: orig; Page: [155] 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. The following case confirms this doctrine. In an action at a tercer’s16 instance for a third of the rents levied by the fiar, the court refused to sustain a deduction claimed by the defendant, namely, a third of the factor-fee17 paid by him for levying the rents; though it was urged, that the pursuer could not have levied her third at 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 Edition: current; Page: [98] be ascertained: the lady herself might have levied her share, or have got a friend to serve her gratis. Edition: orig; Page: [156]

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 enforce natural justice, and by no means to encourage any wrong. Whence it follows, that no man is intitled to the aid of a court of equity, where he suffers by his own fault. For this reason the proprietor is not made liable for the expence of profitable meliorations, but where the meliorations were made bona fide by a person 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 fide 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 plough and Edition: orig; Page: [157] 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 my gain. Of which take the following examples.

There are three creditors connected by their relation to the same debtor who is a bankrupt, and 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 Edition: orig; Page: [158] secondary creditor, who is thus cut out of his security. It cannot indeed be specified here, as in the case of the bonae fidei possessor rei Edition: current; Page: [99] alienae,18 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, namely, 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 with confidence may deliver this opinion, when the following circumstance 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,19 will be preferred. But to what extent? Will it be preferred for the whole Edition: orig; Page: [159] sum in the bond, or only for the price paid for it? The circumstances here 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 Edition: orig; Page: [160] hesitation to apply equity to this case. That court extends its power a great way farther; farther indeed than seems just. A stranger, for Edition: current; Page: [100] 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 with the other incumbrancers: but this purchase does not harm the other incumbrancers; for when the Edition: orig; Page: [161] purchaser claims the debt in its utmost extent, it is no more than what his author20 could 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 on 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,21 is a proposition more agreeable to the principles of equity. This is the law of England, and it is the law of Scot-Edition: orig; Page: [162]land with regard to heirs who take the benefit of inventory.22 But the case of an Edition: current; Page: [101] 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 has no claim but to be kept indemnis.23 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. Edition: orig; Page: [163] 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 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 Edition: orig; Page: [164] 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 Edition: current; Page: [102] respects them equally. This appears to be the ratio decidendi24 in the case reported by Stair, July 27. 1672, Brodie contra Keith.25 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 Leslie.26

There is one circumstance that, without much connection real or personal, extends to many cases the maxim, 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 Edition: orig; Page: [165] another is hurt.” Take the following example. A second disposition of land, though gratuitous, with the first infeftment, is preferred at 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, Non debet locupletari aliena 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 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 Edition: orig; Page: [166] to the disposition, were admitted to affect the estate.*

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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 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 uxorem27 is re-Edition: orig; Page: [167]vocable; 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 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. Edition: orig; Page: [168]

ARTICLE II.: Connections that intitle a man who is not a loser, to partake of my 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 claims to partake of it. 2d, Where he has not contributed to the gain.

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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,1 get for a farm a rent of eighty pounds yearly; and an offer of ten pounds additional rent if they will drain a lake in it. John is willing; but James refuses, judging it impracticable, or at least too expensive. John proceeds at his own risk; and for the sum of £100 drains the lake. He cannot specify any loss by this undertaking; because the sum he laid out is fully compensated by the five pound additional rent accruing to him: and therefore the maxim, Nemo debet locupletari aliena jactura, is not applicable to Edition: orig; Page: [169] his case. But James is a profiter, not only by John’s advancing the money, but at his risk; for if the undertaking had proved abortive, John would have lost both his labour and money. Is it just that James should be permitted to lay hold of an additional rent of £5, without defraying any part of the expence? He cannot justify this to his own conscience, nor to the world. The moral sense dictates, that where expence is laid out in improving or repairing a common subject, no one ought to take 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 come clearly under the same general rule. One of three joint proprietors of a mill, having raised a decla-Edition: orig; Page: [170]rator of thirlage,2 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 judgment against the debtor’s relict,3 Edition: current; Page: [105] 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 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 lucratus4 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 wadset-lands, would be profitable to the re-Edition: orig; Page: [171]verser; and that the reverser,5 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 not found liable for the meliorations of the glebe6 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 forever. I do not say, Edition: orig; Page: [172] 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 sum-total of the expence ought to be converted into a Edition: current; Page: [106] 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 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,7 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 to contribute a share. His answer was sustained to free him from any part, That the expence was wholly laid out on recovering the freighter’s goods; and therefore that they Edition: orig; Page: [173] only ought to be liable.* The answer here sustained resolves into the following proposition, That he only is liable whose benefit is intended: which holds not 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; 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 versum8 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 £1000, have laid out £100 upon salvage: they have in effect saved or recovered but £900; and beyond that sum they cannot be liable for the freight: which in numbers Edition: orig; Page: [174] 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 Edition: current; Page: [107] 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.9 But the real connection 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 be-Edition: orig; Page: [175]stowed upon it: therefore my case comes not under the maxim, Nemo debet locupletari aliena jactura. Neither can I have any claim upon the rule, That 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-fence 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, Edition: orig; Page: [176] 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 Edition: current; Page: [108] 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 reckon upon being liable to all casualties arising from the nature of Edition: orig; Page: [177] his right; and that there is no reason for limiting the superior’s claim, more than that of any other donatar.10 But it was answered, That the relation between superior and vassal is such, as that the superior cannot bona fide 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.

If a purchaser of land, discovering a defect in the progress,11 secure himself by acquiring the preferable title; common law will not permit him to use this title as a ground of eviction, and 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 evicted from him; and therefore he cannot have any claim upon the Edition: orig; Page: [178] 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.

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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 benefit to the whole. One case Edition: orig; Page: [179] 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.

ARTICLE III.: Connections that intitle one who is a loser to be indemnified by one who is not a gainer.

Cases daily occur, where, by absence, infancy, inadvertence, or other circum-Edition: orig; Page: [180]stances, effects real or personal are left without proper management, and where ruin must ensue, if no person 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; and when a proprietor is benefited by such acts of friendship or benevolence, justice and gratitude claim from him a retribution, to the extent at least of the benefit received. Here the Edition: current; Page: [110] maxim, 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 Edition: orig; Page: [181] no contract between us, a claim will not be sustained at common law for the money expended. But equity pierces deeper, 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 to support 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 doc-Edition: orig; Page: [182]trine 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 Edition: current; Page: [111] utiliter gessit, etsi effectum non habuit negotium. Et ideo, si insulam fulsit, vel servum aegrum curavit, etiamsi insula exusta est, vel servus obiit, aget negotiorum gestorum. Idque et Labeo probat.”*,1

From what is said above it is evident, Edition: orig; Page: [183] 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 fide 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.2 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 began that management, not to serve me, but with a view to his own interest. A Edition: orig; Page: [184] prohibition Edition: current; Page: [112] 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, 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 cargo ransomed; and therefore the casual loss of the cargo cannot have the effect to deprive him of his claim.3

The lex Rhodia de jactu,4 a celebrated maritime regulation, has prevailed among all civilized nations ancient and modern. Where in a storm weighty goods of little Edition: orig; Page: [185] value are thrown over board 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 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 Edition: current; Page: [113] 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, Edition: orig; Page: [186] whatever becomes of the cargo after it is landed.5

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 prestare oporteat, et si qui tales merces imposuissent, quibus navis non onerare-tur, 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 Edition: current; Page: [114] rule is adopted Edition: orig; Page: [187] by all the commercial nations in Europe, without a single exception, as far as I can learn. And in pursuance of the rule, it is also adopted, That the owner of the ship ought to contribute, because the shipwreck being prevented by throwing overboard part of the cargo, 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 great regard is justly due, it is not in my power to banish an impression, That the rule of contribution ought to be weight, not value. 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; Edition: orig; Page: [188] 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 each must contribute, being laid out on 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 proceed warily, 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 one person is not bound to abandon a greater proportion than another. This method, however, is seldom Edition: current; Page: [115] 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 Edition: orig; Page: [189] 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 proprietors 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 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 Edition: orig; Page: [190] goods to be thrown into the sea instead of their own.

I must observe at the same time, 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 jactura6 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 thrown into the sea upon their account?

Under this article comes a case that appears to be in apicibus juris.7 A Edition: current; Page: [116] bond extinguished by payment is assigned for a valuable consideration, and the assignee, Edition: orig; Page: [191] ignorant of the payment, obtains payment a second time from the debtor’s heir. After several years the error is discovered, but the cedent by this time has become bankrupt. The heir is at common law entitled to demand from the assignee the sum he paid; as twice payment can have no support in law. The assignee paying this sum is barred by the insolvency of the cedent from any relief against him. What does equity rule in this intricate case, where there is a real connection between the parties by their concern in the same subject? A strong circumstance for the assignee is, that the payment he received from the heir bona fide, was to him invincible evidence, that he could have no claim against the cedent. He was led into that mistake by the heir’s remissness or rather rashness in paying without examining his father’s writings. They are equally certantes de damno vitando; and yet the heir’s claim at common law must be sustained, if there be nothing in equity to balance it. The balance in equity is, that the loss ought to rest on the heir, by whose remissness it was occasioned, and not on the assignee, who had it not in his power Edition: orig; Page: [192] to prevent it. But as the assignee’s loss is only the price he paid to the cedent, his equitable defence against the heir can go no further. This principle of equity is acknowledged by the court of session, and has been frequently applied. Thus an heir having ignorantly paid a debt to an assignee, and several years after having discovered that his ancestor had paid the debt to the cedent, he insisted in a condictio indebiti.8 The defendant was assoilzied, because the cedent had become insolvent after the erroneous payment.* In this case it seems to have been overlooked, that the assignee was not intitled to withhold from the heir more than what he himself had paid to the cedent. So far he was certans de damno vitando: to demand more was captare lucrum ex aliena jactura.9 A creditor, after receiving a partial payment, assigned the whole sum for security of a debt due by him to the assignee; who having got payment of the whole sum from the debtor, ignorant of the partial payment, was on discovery of the fact Edition: current; Page: [117] sued for restitution condictione in-Edition: orig; Page: [193]debiti. His defence was sustained, That he was not bound to restore what he received in payment of a just debt.* This judgement is founded on a mistake in fact. The debt due to the assignee by the cedent was a just debt; but the sum paid by the debtor to the assignee was not in payment of that debt, but of the debt due by him to the cedent, which was not wholly just, as part had been formerly paid. The debtor therefore was well intitled to demand the overplus from the assignee, because a second payment can have no support from law. But probably the cedent had become insolvent after the erroneous payment, which brings this case under the rule of equity handled above. Edition: orig; Page: [194]

CHAPTER IV: Powers of a court of equity to remedy what is imperfect in common law with respect to deeds and covenants.

We have seen above, that, abstracting from positive engagements, the affording relief to a fellow-creature in distress, is the only case that exalts our benevolence to be an indispensable duty. A man however is singly the most helpless of all animals; and unless he could rely upon assistance from others, he would in vain attempt any work that requires more than two hands. To secure aid and assistance in time of need, the moral sense makes the performance of promises and covenants a duty; and to these accordingly may justly be attributed, the progress at least, if not the commencement, of every art.

Among the various principles that qualify men for society, that by which one man can bind Edition: orig; Page: [195] himself to another by an act of will, is eminent. By that act, a new relation arises between them: the person bound is termed obligor, the other obligee. But a man may exert an act of will in favour of another without binding himself, which is the case of a testament or latter-will: during the testator’s life, his will expressed in his testament, differs not from a resolution, as he is bound by neither; but after death it differs widely, for death puts an end to the power of alteration. Edition: current; Page: [118] A testament therefore must be effectual by the testator’s death, or it never can be effectual.

Where two persons bind themselves to each other by mutual acts of will, this is termed a contract or covenant. Where one binds himself to another without any reciprocal obligation, that act of will is termed a promise. I promise to pay to John £100. An offer is a different act of will: it binds not unless it be accepted; and acceptance is an act of will of a fourth kind. Where one by an act of will conveys a subject to another, that is a fifth kind; and that act expressed in writing is termed a deed. Edition: orig; Page: [196]

Nature, independent of will, bars absolutely men from harming each other. It binds them positively to afford relief to the distressed as far as they are able. But in no case is a man bound to add to the estate of another, or to make him locupletior, as termed in the Roman law, otherwise than by voluntary engagement. This distinguishes the obligation of a voluntary engagement from the other duties mentioned. The latter cannot be transgressed without making others suffer in person, in goods, or in reputation: but in relieving from the obligation of a promise or covenant, the person in whose favour it is made, is indeed deprived of any benefit from it, but suffers no positive loss or damage: to him it is lucrum cessans1 only, not damnum datum.2 Hence it is, that the moral sense is less rigid as to voluntary engagements, than as to duties that arise without consent. To fulfil a rational promise or covenant, is a duty no less inflexible than to fulfil the duties that arise without consent. But as man is a fallible being, liable to fraud and deceit, and apt to be misled by ignorance and error, the moral sense would be ill suited to his na-Edition: orig; Page: [197]ture, did it compel him to fulfil every engagement, however irrational, however rashly or ignorantly made. Deplorable indeed would be our condition, were we so strictly bound by the moral sense: the innocent would be a prey to the designing, the ignorant would be over-reached by the crafty, and society be an uncomfortable state. But the author of our nature leaves none of his works imperfect: the moral sense, corresponding to the fallibility of our nature, binds us by no engagement but what is fairly entered into with every Edition: current; Page: [119] consequence in view, and what in particular answers the end for which it was made.3

Few persons pass much of their time without having purposes to fulfil, and plans to execute; for accomplishing 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. Every deed and covenant may accordingly be considered to be a mean employed to bring about some end or event.

Sometimes the desired event is mention-Edition: orig; Page: [198]ed in the deed or covenant, and expressly agreed on to be performed; in which case performance concludes the transaction, being all that was intended. 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 accomplished when the money is repaid. A legacy bequeathed in a testament is another example: 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, the fact appointed to be done, is not ultimate, but intended to bring about a further end. Thus, when I buy a stone horse for propagation, the contract is performed upon delivery of the horse to me. But this performance does not fulfil my promise: I have a further end in view, which is 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 Edition: orig; Page: [199] rotten, the end I have in view is disappointed.

This suggests a division of voluntary engagements into two kinds: the first, where the performance mentioned is ultimate by fulfilling all that was intended; the other, where the performance mentioned is not ultimate, but intended as a mean to a further end, not mentioned. In this kind, a contract is a mean to bring about the immediate end, namely, the performance of what was mentioned and agreed on; and this immediate end is a mean to bring about the ultimate end.

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In contracts of this kind, 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. Here equity may interpose, to vary these means in some cases, and to proportion them more accurately to the ultimate end: 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,4 that is, contracts in which equity may inter-Edition: orig; Page: [200]pose to correct inequalities, and to adjust all matters according to the plain 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 that he had in view in contracting? Contracts accordingly of that kind, are termed contracts stricti juris.

To the 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, what stricti juris, we are left in the dark by Roman writers. Some of their commentators give us lists or catalogues; but they pretend not to lay down any precise rule by which the one kind may be distinguished from the other. I have endeavoured to supply that defect: whether satisfactorily or not, is the province of others to judge.

Have we in Scotland any action similar Edition: orig; Page: [201] to what in the Roman law is termed Condictio ex poenitentia?5 Voet, upon the title Condictio causa data,6 &c. says, that the condictio ex poenitentia is not admitted in Edition: current; Page: [121] modern practice, because every paction is now obligatory.7 I admit, that every paction is obligatory so far as to produce an action; but that does not bar an equitable defence. And it appears to me, that there are contracts where repentance may be sustained in equity as a good defence; as where the contract is of a deep concern to one of the parties, and of very little to the other. 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. Am I bound notwithstanding to fulfil my covenant with the undertaker? Will not ignorance here relieve me, as error would do, where it is lucrum cessans only to the undertaker, and a very deep loss to me? Suppose again, that upon a more narrow inspection into my finances, the sum agreed on for building is found to be more than I ought to afford. Or what if, rebus integris,8 I suc-Edition: orig; Page: [202]ceed to an estate with a good house upon it, or am invited by an employment to settle elsewhere? If I be relieved, the undertaker is at liberty to accept of employment from others; and perhaps of more beneficial employment than mine: if I be kept bound, a great interest on my side is sacrificed to a trifling interest on his. Covenants, intended for the support of society, ought not rashly to be converted to the ruin of an individual. It is a delicate point to determine in what cases a court of equity ought to interpose. All arbitrary questions are dangerous, and this is one of them. The court of session, however, must not decline such questions where it is to relieve from deep inequality and distress. In the cases above mentioned, they certainly would not refuse to interpose.9

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Great interest on the one side, and very little on the other, is not the only instance where a court of equity will admit of repentance. Of all articles of commerce, that of land is of the highest importance. For that reason, repentance is permitted in a verbal bargain of land, however fair and equal the bargain may be. It requires Edition: orig; Page: [203] writing to fix the bargain. Marriage is a contract still more important, as the happiness of one’s whole life may depend on it. Hence it is that nothing but a contract de praesenti10 can bind. Repentance is permitted of every agreement that can be made about a future marriage. Thus a bond granted by a woman to marry the obligee under a penalty, will not be effectual even for the penalty.*

This chapter, consisting of many parts, requires many divisions; and in the divisions that follow a proper arrangement is studied, which ought to be a capital object in every didactic subject.

SECTION I: Where will is imperfectly expressed in the writing.

In applying the rules of equity to deeds and covenants, what comes first under consideration is, whether the will be fully Edition: orig; Page: [204] or fairly taken down in the writing. A man, expressing his thoughts to others, is not always accurate in his terms; neither is the writer always accurate in expressing the will of his employer: and between the two, errors are often multiplied. Thus, clauses in writings are sometimes ambiguous or obscure, sometimes too limited, sometimes too extensive. As in common law the words are strictly adhered to, such imperfections are remedied by a court of equity. It admits words and writing to be the proper evidence of will; Edition: current; Page: [123] but excludes not other evidence. Sensible that words and writing are not always accurate, it endeavours to reach will, which is the substantial part; and if, from the end and purpose of the engagement, from collateral circumstances, or from other satisfying evidence, will can be ascertained, it is justly made the rule, however it may differ from the words. The sole purpose of the writing is to bear testimony of will; and if that testimony prove erroneous, it can avail nothing against the truth. This branch of equitable jurisdiction, which comprehends both deeds and covenants, is founded on the Edition: orig; Page: [205] principle of justice, which declares for will against every erroneous evidence of it.

This section may be divided into three articles. First, Where the words leave us uncertain about will. Second, Where they are short of will. Third, Where they go beyond it.

ARTICLE I.: Where the words leave us uncertain about will.

This imperfection may be occasioned by the fault of the writer, mistaking the meaning of his employer; or by the fault of the employer, exerting an act of will imperfectly, or expressing his will obscurely. But I purposely neglect these distinctions; because in most of the cases that occur, it is extremely doubtful upon whom the inaccuracy is to be charged. Nor will this breed any confusion; for from whatever cause the doubt about will arises, the method of solving it is the same, namely, to form the best conjecture we can, after considering every relative circumstance. Edition: orig; Page: [206]

Contracts shall furnish the first examples. In a bargain of sale, the price is referred to a third person: the referee dies suddenly without naming 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 Edition: current; Page: [124] equity supply the defect in order to validate the bargain? This question depends on 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, which no court will make effectual. But if it was intended, that the sale should in all events stand good, leaving only the price to be determined by the referee; the unexpected accident of his death cannot resolve the bargain; upon which account, it belongs to a court of equity, in place of the referee, to name a price secundum arbitrium boni viri.1 A man having purchased land, obliged himself in a backbond2 to redispone, upon receiving back the price from the vender within a time specified. The vender having died within the time, it was questioned, Whether his heir was privileged to redeem the Edition: orig; Page: [207] land. If it was the meaning of the contract to confine the privilege of redemption to the vender personally, his heir could have no right. But if it was understood sufficient that the price should be repaid within the time specified, the heir was intitled to redeem, as the predecessor was. This construction, as the more equal and rational, was adopted by the court of session. And, accordingly, the land was found legally redeemed, upon the heir’s offering the price before the term was elapsed.* A gentleman having given a bond of provision to his sister for 3000 merks, took from her a backbond, importing, “That the sum being rather too great for his circumstances, she consented that the same should be mitigated by friends to be mutually chosen, their mother being one.” After the mother’s decease without mitigation, the brother’s creditors insisting for a mitigation secundum arbitrium boni viri, the defence was, That the condition of the mitigation had failed by the mother’s death; and therefore that the bond must subsist Edition: orig; Page: [208] in totum.3 The defence was sustained. Supposing the backbond to be conditional, the judgment is right. But as it seems the more natural construction, that there should be a mitigation if the brother’s circumstances required it, the unexpected death of the mother ought not to have prevented the mitigation.4

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The next examples shall be of deeds. The minister of Weem settled his funds upon five trustees, and their successors, for the use of the schoolmasters of that parish, declaring the major part 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 upon the following ground, That the deed of mortification5 was conditional, requiring the acceptance of a quorum at least of the trustees; and therefore void, the condition not having been purified. The defence was, That the deed of mortification was pure, vesting a right in the schoolmasters of Weem; that the nomination of trustees was only Edition: orig; Page: [209] intended, like the nomination of an executor, to make the funds effectual; and that it was not intended to make the deed depend on their acceptance or non-acceptance. The deed was sustained; the court being of opinion, that it would have been effectual though all the trustees had declined acceptance.*,6 I illustrate this by an opposite case, where it was understood that no right was created by the deed. Lady Prestonfield made 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. First, the yearly interest to be applied for the education and support of such of her descendents as should happen to be in want or stand in need thereof, and that at the discretion of the trustees. Second, failing descendents, the capital to return to her 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 descendents of the Edition: orig; Page: [210] maker. As here it appeared to be the maker’s will to leave all to the discretion of the trustees, without the least hint of giving any right to her Edition: current; Page: [126] descendents independent of the trustees, the deed was declared void by their non-acceptance.*

Colonel Campbell being bound in his contract of marriage to secure the sum of 40,000 merks, and the conquest during the marriage,7 to himself and spouse in conjunct fee and liferent, and to the children to be procreated of the marriage in fee,8 did, by a deathbed deed settle all upon his eldest son, burdened with the sum of 30,000 merks to his younger children, to take place if their mother could be prevailed on to give up her claim to the liferent of the conquest, and restrict herself to a less jointure: otherwise the provision to the younger children 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 question occurred between the heir and the younger children, What Edition: orig; Page: [211] was the Colonel’s intention, whether to make a provision for his younger children, referring the quantum only to the Duke and Earl; or to make the provision conditional, that it should not be effectual unless the referees named a sum. The court adopted the latter construction; and refused to interpose in place of the referees to name a sum. The judgement probably would have been different, had no provision been made for the children in the contract of marriage.9

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A married woman gives a security on her estate to her husband’s creditors; but with what intention it is not said. If a donation was intended, she has no claim for relief against her husband: but in dubio,10 a cautionary engagement will be presumed; which affords her a claim.* A court of common law would hardly be brought to sustain a claim of this nature, where there is no clause in the deed on which it can be founded.11 Edition: orig; Page: [212]

Where a man provides a sum to his creditor, without declaring it to be in satisfaction, it 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 maxim, Quod debitor non praesumitur donare,12 a court of equity, supplying a defect in words, decrees the sum to be in satisfaction. Thus, a man being bound for £10 yearly to his daughter, gave her at her marriage a portion of £200. Decreed, That the annuity was 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 [that is, Belsches], taking them bound, among Edition: current; Page: [128] other legacies, to pay £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 Edition: orig; Page: [213] the narrative13 of love and favour, binding himself to pay to her in liferent, and to her children nati et nascituri14 in fee, at the first term after his decease, the sum of £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 £1200 there is no mention of the former legacy, nor of any legacy; which clearly shews, that Anthony had forgot the first legacy, and consequently that he intended no more for Emilia but £1200 in whole. Which was accordingly decreed.*

ARTICLE II.: Where the words are short of will.

Between this article and a following section, intitled Imply’d will, there is much affinity; but as the blending together Edition: orig; Page: [214] things really distinct, tends to confusion of ideas, I have brought under the present article, acts of will that are indeed expressed, but so imperfectly as to leave room for doubt whether the will does not go farther than is spoken out; leaving to the section Imply’d will articles essential to the deed or covenant, that must have made a part of the maker’s will, and yet are totally omitted to be expressed.

In England, where estates are settled by will, it is the practice to make up any defect in the words, in order to support the will of the devisor. But here it is essential, that the will be clearly ascertained, in order that the court may run no hazard of overturning the will, instead of supporting it. An executor being named with the usual power of managing 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 Edition: current; Page: [129] executry,” was held by the court to import an universal legacy in favour of the executor.* A man having two nephews who were his Edition: orig; Page: [215] heirs at law, made a settlement in their favour, dividing his farms between them, intending probably an equal division. A farm was left out by the omission of the clerk, which the scriviner swore was intended for the plaintiff. The court refused to amend the mistake, leaving the farm to descend as ab intestato [by intestacy]. For here it was not clear that the maker of the deed intended an equal division.

There being an entail of the estate of Cromarty to heirs-male, the Earl, in his contract of marriage, anno 1724, became bound, in case of children of the marriage who should succeed to and enjoy the estate, to infeft his lady in a liferent-locality1 of forty chalders victual;2 and in case of no children to succeed to and enjoy the estate, he became bound to make the said locality fifty chalders. The following clause is added: “That if at the dissolution of the marriage there should be children succeeding to and enjoying the estate, but who should afterward decease during the life of his said spouse, she from that period should be entitled to fifty chalders, as if the said children Edition: orig; Page: [216] had not existed.” The Earl being forfeited in the year 1745, having issue both male and female, a claim was entered by his lady for the jointure of fifty chalders, to take effect 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 have succeeded to the estate. Here evidently the words fall short of intention; for as the claimant would have had a jointure of fifty chalders if the Earl’s brother or nephew had succeeded to the estate, there can be no doubt that had the event of forfeiture been foreseen, the Earl would have given her at least fifty chalders. The claim accordingly was sustained.

Walter Riddel, in his contract of marriage 1694, became bound to settle his whole land-estate on the heir-male of the marriage. In the year 1727, Edition: current; Page: [130] purposing to fulfil that obligation, he disponed to his eldest son the lands therein specified, burdened with his debts, reserving to himself an annuity of 2000 merks only. Edition: orig; Page: [217] The lands of Stewarton, which came under the said obligation, were left out of the disposition 1727. But that they were omitted by oversight, without intention, was made evident from the following circumstances: first, That the title-deeds of that farm were delivered to the son along with the other title-deeds; second, That he took possession of the whole; third, That a subsequent deed by the father anno 1733, proceeds upon this narrative, “That the whole lands belonging to him were conveyed to his son by the disposition 1727.” Many years after, the father, having discovered that Stewarton was not mentioned in the said disposition, ventured to convey that farm to his second son, who was otherwise competently provided. It was not pretended, that Stewarton was actually conveyed to the eldest son, which could not be but in a formal disposition; but as there was clear evidence of the father’s obligation to convey it with the rest of the estate, which obligation he was still bound to fulfil, the court judged this a sufficient foundation for voiding Edition: orig; Page: [218] the gratuitous disposition to the second son.*

In the cases mentioned, writing is necessary as evidence only: it is of no consequence what words be used in the nomination of an heir or of an executor, provided the will of the maker be ascertained. But in several transactions, writing, beside the evidence it affords, is an indispensable solemnity. Land cannot be conveyed without a procuratory or a precept,3 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 conveyed 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, no 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 Edition: orig; Page: [219] be the sovereign rule? Far from it. Though in certain transactions Edition: current; Page: [131] writ4 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 will, is contrary 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, where from the context, from the intendment of the granter, 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 Edition: orig; Page: [220] the words where these are made essential; for this, in effect, would be to overturn 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 with the due and ordinary annualrent5 of the said principal sum from the said term of Martinmas 1742,” &c. Here the obligatory clause is imperfect, as it omits the principal sum corroborated, name-Edition: orig; Page: [221]ly, the 1000 merks, 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 against him for payment of the principal sum. It was obvious to the court, that the Edition: current; Page: [132] bond, though defective in the most essential part, afforded 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 in point of solemnity. A defective bond, like the present, whatever evidence it may afford, is still less formal than if it wanted the requisites of the act 1681.6 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.7 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 Edition: orig; Page: [222] 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 will however 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 was 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.

ARTICLE III.: Where the words go beyond will.

It is a rule in daily practice, That Edition: orig; Page: [223] however express the words may be, a court of equity gives no force to a deed beyond the will of the granter.1 Edition: current; Page: [133] This rule is finely illustrated in 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 conveyed 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, Edition: orig; Page: [224] That nothing could be intended by the Provost, but to settle his proper estate upon his eldest son, without any intention 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 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.”* Charles Farquharson writer, being in a sickly condition and apprehensive of death, did, anno 1721, settle all the effects real and personal that should belong to him at his death, upon his eldest brother Patrick Farquharson of Inverey, and his heirs; reserving a power to alter, and dispensing with the delivery. Charles was at that time a bachelor, and died so. Being restored to health, he not only survived his brother Patrick, but also Patrick’s two sons, who successively inherited the estate Edition: orig; Page: [225] of Inverey. Patrick left daughters; but as the Edition: current; Page: [134] investitures2 were to heirs-male, Charles was infeft as heir-male, died in possession, and left the estate open to the next heir-male. Against him a process is raised by the daughters of Patrick, claiming the estate of Inverey upon the settlement 1721 as belonging to Charles at the time of his death, and consequently now to them as heirs of line to Patrick. The defence was, That here the words of the settlement are more extensive than the will of the granter, which was only to augment the family-estate by settling his own funds on Patrick the heir of the family; that this purpose was fulfilled by the coalition of both estates in the defendant, the present head of the family; whereas the claim made by the pursuers, the purpose of which is to take from the representative of the family the family-estate itself, is not only destitute of any foundation in the maker’s will, but is in direct opposition to it. The court judged, That the pursuers had no action on the deed 1721 to oblige the defendant to denude of the e-Edition: orig; Page: [226]state of Inverey.* A contract of marriage providing the estate 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 tailzied3 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; to an only daughter 40,000 merks,” &c. The estate being forfeited for treason committed by the eldest son of the marriage, the only daughter of the marriage claimed the 40,000 merks as being excluded from the succession by the existence of an heir-male. Objected by the King’s Advocate, That the provision not being to younger children in general, but to daughters only, upon consideration that the estate was entailed to heirs-male, was obviously intended to be conditional, and only to take effect failing sons of the mar-Edition: orig; Page: [227]riage; 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.

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The same rule obtains with respect to general clauses in discharges, submissions,4 assignments, and such like, which are limited by equity where the words are more extensive than the will. Thus, a general submission of all matters debateable, is not understood to comprehend land or other heritable right.* Nor was a general clause in a submission extended to matters of greater importance than those expressed. A had a judgement of £6000 against B. B gave A a legacy of £5, and died. A, on receipt of this £5, gave the executor of B a release in the following words. “I acknowledge to have received of C £5, left me as a legacy by B, and do release to him all demands which I Edition: orig; Page: [228] against him, as executor to 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, namely, the receipt of the £5, and should not be a discharge of the judgement.

A variety of irritancies contrived to secure an entail against acts and deeds of the proprietor, furnish proper examples of this doctrine. Where such irritancies are so expressed as to declare the proprietor’s right voidable only, not ipso facto void, an act of contravention may be purged before challenge, and even at any time before sentence in a process of declarator. But what shall be said upon clauses declaring the proprietor to fall from his right ipso facto upon the first act of contravention? Supposing the entailer by this clause to have only intended to keep his heirs of entail to their duty, which in dubio will always be presumed, his purpose is fulfilled if the estate be relieved from the debts and deeds of the tenant in tail. Edition: orig; Page: [229] The words indeed are clear; but words unsupported by will have no effect in law. 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 bruik5 or enjoy the estate, the omission shall import a contravention of the irritant and resolutive clauses against the person and his Edition: current; Page: [136] heirs who shall omit to insert the same, whereby the estate shall ipso facto fall, accresce,6 and be devolved upon the next heir of tailzie; but shall not militate against creditors,”7 &c. Here the words go inadvertently beyond will. It cannot be the will of any entailer, to forfeit his heir for an omission that the heir supplies rebus integris. Nor could it be the intendment of the legislature to be more severe than entailers themselves commonly are. This irritancy, according to order, ought to come in afterward in treating of equity with respect to statutes; but by the intimacy of its connection with the irritancies mentioned, it appears in a better light here.

The foregoing irritancies relate to grants and single deeds. The following is an ex-Edition: orig; Page: [230]ample of a conventional irritancy,8 an irritancy ob non solutum canonem9 in a lease 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 to 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 words go inadvertently beyond the will; and a declarator of irritancy will still be necessary, in order to afford an opportunity for purging the irritancy.

Conditional bonds and grants afford proper examples of the same kind. These are of two sorts. 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; Edition: orig; Page: [231] as for example, a bond for a sum of money to a young woman upon condition of her marrying with Edition: current; Page: [137] consent of certain friends named, the intendment of which is to prevent an unsuitable match. Conditions of the first sort are taken strictly, and the sum is not due unless the condition be purified [that is, fulfilled]. This is requisite at common law; and no less so in equity, because justice requires that a man’s will be obey’d. To judge aright of the other sort, 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, though without consulting the friends named, I pronounce that the bond ought to be effectual in equity, though not at common law. The reason is given above, that the ultimate will or purpose ought to prevail in opposition to the words.10 I am aware, that in Scotland we are taught a different lesson. In bonds of the sort under consideration, a distinction is made between a suspensive condition, and one that is resolutive.11 If the bond to the young woman contain a resolutive condition only, namely, if she Edition: orig; Page: [232] 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 if the condition be suspensive, as where a bond for money is granted to a young woman, on condition that if she marry it be with consent of certain friends named, it 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 Edition: current; Page: [138] and simple. This argument is conclusive where a condition is ultimate, whether suspensive or resolutive; but not where the condition is a means to an end. The granter’s will, it is true, ought to be obey’d; but whether his will with regard to the means, or his will with regard to the end? The means are of no significancy but as productive of the end; and if the end be accomplished without them, they can have no weight in equity or in common sense. Let us try the force of this reasoning by bringing it down to common apprehension. Why is a resolutive condition disregarded, where the ob-Edition: orig; Page: [233]ligee marries suitably? For what reason but that it is considered as a mean to an end; and that if the end be accomplished, the granter’s purpose is fulfilled? Is not this reasoning applicable equally to a suspensive condition? 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 £8000 is given to a woman, provided she marry with consent of A; and if she marry without his consent, she shall have but £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.12 And in all cases where compensation can be made for Edition: orig; Page: [234] 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,13 and a less sum accepted, upon condition that the Edition: current; Page: [139] 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 that this will not 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, namely, to compel payment of the transacted sum; and therefore if payment be offered at any time before a declarator of irritancy, with damages for the delay, the conditional irritancy has had the full effect that was intended. Equity therefore requires a decla-Edition: orig; Page: [235]rator 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 difficulty of recovering the 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 particular, that the acts of Edition: orig; Page: [236] contravention can be purged, so as to restore matters to the same state 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 Edition: current; Page: [140] damages to the landlord. Take the following instance. The plaintiff, tenant for life of a copyhold-estate, felled trees, which, at a court-baron, was found a waste,14 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,15 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.* Edition: orig; Page: [237]

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 clearly expressed. A man devised to his wife his personal estate, upon trust and confidence,16 “That she should not dispose thereof but for the benefit of her children.” She by will gave to one but five shillings, and all the rest to another. The court set aside so unequal a distribution. A man by will directed that his land should descend to his daughters, “in such shares as his wife by a deed in writing should appoint.” The wife makes an unequal distribution. The court at first declared, the circumstances must be very strong, as bribery, for instance, or corruption, that could 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. Here the plaintiff was allowed but a small proportion; and for any causeless displeasure she might have been put off with a single barren acre; that the court in the latter case, would have a jurisdiction; and Edition: orig; Page: [238] therefore in the case that really happened.

Edition: current; Page: [141]

SECTION II: Implied will.

In framing a deed it belongs to the granter to declare his will and purpose: the proper clauses for expressing these are left to the writer. But seldom it happens that every particular is expressed: nor is it necessary; for where a man declares his will with respect to a certain event, he undoubtedly wills every necessary mean; which is only saying, that he is not a changeling. I grant, for example, to a neighbour, liberty of my coal-pit for the use of his family. It follows necessarily, that he have a coal-road through my land, if he have not otherwise access to the pit. The same holds in covenants. A clause in a lease entitling the lessee to take possession at a time specified, implies ne-Edition: orig; Page: [239]cessarily authority from the landlord to remove the tenant in possession.

Tacit will, where made clear from circumstances, ought to have the same authority with expressed will: the only use of words is to signify will or intention; and from the very nature of the thing, will or intention cannot have greater authority when expressed in words, than when ascertained with equal clearness by any other signs or means. A court of common law rarely ventures to dive into tacit will. But it is one of the valuable powers of a court of equity, to imply will where it is not expressed; without which deeds and covenants would often fall short of their purposed end. But a judge ought to be extremely cautious in the exercise of this power, to avoid counteracting will, instead of supporting it; an error that seems to have been committed in the following case.1 The sum of £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 £60 should be returned. He having died within three weeks, a bill was brought in chancery to have a greater sum returned. And Edition: orig; Page: [240] notwithstanding the express provision, it was decreed that a hundred guineas should be returned.*

Edition: current; Page: [142]

As tacit will is to be gathered from various circumstances, particularly from the nature and intendment of the deed or covenant, general rules are not to be expected. All I can venture on, is to give examples of various kinds, which may enure the student of law to judge, in what cases will ought to be imply’d, in what not. For the sake of perspicuity, these examples shall be put in different classes. And first, of accessories.2 Where a subject is conveyed, every one of its accessories are understood to be conveyed with it, unless the contrary be expressed. An assignment, for example, of a bond of borrowed money, implies a conveyance of what executions have passed upon it: these may be of use to the assignee; but can avail nothing to the cedent after he is denuded. Thus, an assignment to a bond was understood to comprehend an inhibition3 that followed upon it; though there was no general clause that could compre-Edition: orig; Page: [241]hend the inhibition.* In an infeftment of annualrent a personal obligation for payment is now common. In the conveyance of an infeftment containing that obligation, no mention was made of it. It was however imply’d by the court of session; as there appeared no intention to relieve the debtor. Tenants, taken bound by lease to carry their corn-rent to the place of sale, were decerned to perform that service to the proprietor’s widow, infeft in a liferent-locality. Such implication is not made with respect to penal accessories: these will not go to the assignee, unless expressly convey’d. The superior of a feu-right dispones the same for a valuable consideration; but antecedently the feuer4 had incurred an irritancy upon failing to pay his feu-duty. Is the purchaser entitled to reduce the feu upon that head? The irritancy is indeed an accessory to the superiority; but loosely con-Edition: orig; Page: [242]nected and easily separated. The punishment is what few superiors are so Edition: current; Page: [143] hardhearted as to inflict; and a superior who declines the taking advantage of it for himself, will not readily bestow the power on another. If intended therefore to be convey’d, it must be expressed; for it will not be imply’d by a court of equity.

A discharge of the principal debt includes accessories by imply’d will. An agent, for example, employ’d to carry on a process, states an account without any article for pains. He receives payment of the sum in the account, and gives a discharge. The article for pains is understood to be also discharged. Imply’d will is extended still farther. The extract of a decree5 implies the passing from any claim for costs of suit; because no rational person who purposes to claim such costs will reserve them for a new process, when by delaying extract it is so much more easy to claim them in the same process.

So much for accessories. Next, of consequents. A commission being given to execute any work, every power necessary to carry it on is implied. Example: A man commissioned to navigate a ship, Edition: orig; Page: [243] termed the master, can bind his owners to pay what money he has borrowed in a foreign country for repairing the ship.

I shall add but one class more, which is, where in a settlement upon one person a benefit is understood to be conferred on another. Thus, where a man devises land to his heir after the death of his wife, this by necessary implication is a good device to the wife for life: by the words of the will, the heir is not to have it during her life; and none else can have it, as the executors cannot intermeddle.* But if a man devises land to a stranger after the death of his wife, this does not necessarily infer, that the wife should have the estate for her life: it is but declaring at what time the stranger’s estate shall commence; and in the meantime the heir shall have the land.,a

I close this head with the following reflection, That the power of implying will Edition: orig; Page: [244] can only be of use where tacit will is authoritative: it can avail Edition: current; Page: [144] nothing where writing, and consequently words, are essential. To make a valid entail, for example, words are essential: tacit will avails nothing.

SECTION III: Whether an omission in a deed or covenant can be supplied.1

With regard to the former section, a court has no occasion to extend its equitable power farther than to dive into tacit will and to bring it into day-light. With respect to the present section, the court is called on to extend its power a great way farther, in order to do justice. In framing a deed or covenant, every necessary circumstance is not always in view: articles are sometimes omitted essential to the deed or covenant; which therefore ought to be supplied, in order to do justice to the parties concerned. It is a bold step in a court to supply will in any particu-Edition: orig; Page: [245]lar, which so far is making a will for a man who omitted to make one for himself; but where will is declared with respect to capital articles, so as to create a right to one or to both of the parties, it is the duty of a court of equity to supply omissions, in order to make the rights created effectual: a right is created by what is actually agreed on; the court is bound to give force to that right, according to the maxim, That right ought never to be left without remedy.

This extraordinary power ought never to be exercised but where it clearly follows, from the nature of the writing, from the intendment of parties, or from other pregnant circumstances, that there really is an omission of some clause that would have been expressed had it occurred to the parties. If a court should venture to interpose without being certain that the clause was not purposely left out, they would be in hazard of making a will for a man, and overturning that which he himself made. But where they are satisfied that there is really an omission, their supplying the omission is not making a will for a man, Edition: orig; Page: [246] but, on the contrary, is completing his will.

Edition: current; Page: [145]

This doctrine will be illustrated by the following examples. In a wadset the naming a consignator2 is omitted; which could not be done purposely, a consignator being an essential person in following out an order of redemption. From the nature of the contract, the granter is intitled to redeem; and to make his right effectual, the court will name a consignator. Upon a wadset granted to be held of the superior, an infeftment passed; but it was omitted to provide, that the wadsetter, on redemption, should surrender the subject to the superior for new infeftment to the reverser. The court of session, considering that this is a proper clause, and that the wadsetter could not have objected to it had it occurred in framing the wadset, decreed him to grant a procuratory3 of resignation.*

A man lent a sum on bond, payable to himself and to his children nominatim4 in fee, with the following provision, Edition: orig; Page: [247] “That in case of the decease of any of the said children, the share of that child shall be equally divided among the survivors.” One of the children, a son, having predeceased his father, leaving issue, it was questioned, whether his share of the bond descended to his issue, or accresced to the survivors. Here was evidently an omission; as the granter could not intend to exheredate5 the issue of any of his children. And accordingly the issue of the son were preferred. Papinian, the greatest of the Roman lawyers, delivers the same Edition: current; Page: [146] 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.”* Our author supposes, that the testator had provided for the issue of his grandchildren, but Edition: orig; Page: [248] that the provision had been casually omitted by the writer. This is cutting the Gordian knot, instead of untying it; for what if the writer had not received any such instruction? There is no occasion for Papinian’s conjecture: it was obviously an omission, which a court of equity ought to supply, in order to do justice, and to fulfil the intendment of the creditor.6

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. As a legacy was intended even in case of a child, it cannot be thought that the friend should have no legacy if no children were born. The clause therefore is evidently imperfect, a member being wanting, that of the testator’s dying without children. The want of that member was a pure omission, which the testator would have supplied had the event occurred to him; and which a court of equity may supply, in order fully to accomplish the intendment of those who are Edition: orig; Page: [249] no longer in being to speak for themselves. Edition: current; Page: [147] The court of session accordingly found the highest sum due ex praesumpta voluntate testatoris.7,* They could go no further without exerting an act of power altogether arbitrary; as they had no data for determining what greater length the testator himself would have gone. Here it is proper to be observed, that in the former cases mentioned, a right was created, to make which effectual a court of equity ought to lend their aid. In the present case, there was no right created; and a court of equity had no call to interpose, but in order to give the most liberal effect to deeds made by persons deceased. The present case then is much more delicate than any formerly mentioned.

But now, what if the wife had brought forth twins? Though the testator gave a legacy in the event of a single child, it follows not necessarily, that he would have given a legacy had he foreseen the birth of two children. Therefore, as it is not certain that in the case here figured there is Edition: orig; Page: [250] any omission, a court cannot interpose, without hazarding the making a will for a man that he himself would not have made.8 I venture this opinion even against the authority of Julianus, the most acute of all the writers on 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 Edition: current; Page: [148] suggerente decursum est; quod etiam Juventio Celso appertissime placuit.”* Edition: orig; Page: [251]

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, 11,000 to the eldest, and 9000 to the other; 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.” There the contract stops, because probably a greater number was not expected. The existence of a fourth daughter brought on the question, Whether she could have any share of the 30,000 merks, or be left to insist for her legal provision ab intestato [from an intestacy]. As it appeared to be the father’s intention to provide for all the children of the marriage, and as he certainly would have provided for the fourth daughter, it belonged to a court of equity to supply the omission, by naming to her such a sum as he himself would have done. The court decreed 4500 merks to the fourth daughter, as her proportion of the 30,000 merks; and restricted the eldest daughter to 10,500, the second to 8500, and the Edition: orig; Page: [252] third to 6500.,9 The following case stands on the Edition: current; Page: [149] 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 filia, 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.”*

No article concerning law ought to be more relished, than the authority a court of equity is endued with to make effectual deeds and covenants, not only according to the actual will of the parties, but according to their honest wishes. With respect to family-settlements in particular, a man in his last moments has entire satisfaction in reflecting, that his settlement will be made effectual after his death, candidly and fairly, as if he himself were at hand to explain his views. So great stress is laid up-Edition: orig; Page: [253]on will as the fundamental part of every engagement, that where it is clear, defects in form are little regarded by a court of equity. Take the following instances. A man settles his estate on his eldest son in tail, with a power, by deed or will under seal, to charge the land with any sum not exceeding £500. A deed is prepared and engrossed, by which he appoints the £500 to his younger children; but dies without its being signed and sealed. Yet this in Edition: current; Page: [150] 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 to give them £500, which afforded them a good claim in equity for that sum. Provost Aberdeen wishing to have a country-seat Edition: orig; Page: [254] near the town of Aberdeen, purchased the lands of Crabstone from Farquharson of Invercauld, for £3900 Sterling; and missive letters were exchanged, agreeing that the lands should be disponed to the Provost in liferent, and in fee to any of his children he should name. The title-deeds were delivered to a writer, who, by the Provost’s order, made out a scroll of the disposition, to the Provost in liferent, and to Alexander the only son of his second marriage in fee. A disposition was extended 12th June 1756, and dispatched to Invercauld, 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 hands of your doer.” Invercauld not being at home, the packet was delivered to his lady. As soon as he came home, which was on the 21st of the said month, he subscribed the disposition, and sent it with a trusty hand to be delivered to the Provost at Aberdeen. But he, having been taken suddenly ill, died on the 24th of June, a few hours before the express arrived; whereby it happened, that Edition: orig; Page: [255] the disposition was not delivered to him, nor the bond for the price subscribed 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 the disposition remained an undelivered evident under the power of the granter; nor could it bind the Provost, since it was not accepted by him; and laying aside that incompleted deed, nothing remained binding but the mutual missives; the benefit of which must descend to the Provost’s heir at law, seeing none of his Edition: current; Page: [151] children is named in these missives. It was answered for Alexander, That his father’s will being clearly for him, it is the duty of the court of session to make it effectual. And he accordingly was preferred.* A settlement being made on 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 it was not understood to be the will of Edition: orig; Page: [256] the maker to forfeit the young woman merely for the want of form, when the substance was preserved. Land cannot be charged but by a formal deed; for such is the common law. But a court of equity may supply a defective deed, considered as a satisfactory evidence of will, by subjecting the heir personally.10 In one case, the court of session made a wide step. In a disposition the granter reserved power to burden the land with a sum to particular persons named. The disponee was made liable for the sum, though the disponer had made no step toward exercising the power. This indeed was a favourable case, the power reserved being to provide younger children. And yet, were this extension of equity to be justified, I cannot discover any bounds to equitable powers. What better evidence can be required of the disponer’s resolution not to exert his reserved power, than his forbearing to exert it?

I must observe upon this section in general, that to ascertain what was a man’s will, to make it effectual, and to supply omissions, afford a spacious field in equity Edition: orig; Page: [257] for supporting deeds and covenants, upon which the prosperity of society and many of its comforts greatly depend. But as far as I discover, equity, which has a free course in supporting will, never is exerted against it. It ventures not to alter a man’s will, far less to void it: it cannot even supply will where totally wanting. Where a deed or covenant Edition: current; Page: [152] is fairly made without any reserved power to alter, what before was voluntary, becomes now obligatory; and it must have its course, whatever be the consequence. However clear it may be, that it would not have been made had the event been foreseen, yet no court of law is impowered to void the writing or to alter it; for this would be to make a settlement for a man who himself made none. Power so extensive would be dangerous in the hands of even the most upright judges. I dare not except a British parliament.

Were a court of law endued with a power to alter will, or to supply its total absence, the following cases would be a strong temptation to exercise the power. A gratuitous bond by a minor being voided at the instance of his heir, because a Edition: orig; Page: [258] minor cannot bind himself without a valuable consideration; the obligee insisted for an equivalent out of the moveables left by the minor, on the following ground, That he could have left the same sum to his friend by way of legacy. It was admitted, that if the heir’s challenge had been foreseen, the minor probably would have given a legacy instead of a bond: but that in fact the minor gave no legacy; and no court can make a testament for a man, who himself made none: which accordingly was found.*,11 The bond here was complete in all its parts, and no article omitted that a court of equity could supply. There was indeed a defect of foresight with respect to what might happen; but a court of equity does not assume a power to supply defects of that kind. The like was found with respect to a gratuitous disposition of an heritable subject, which was voided as being granted on deathbed. The disponee claimed the value from the executor, presuming that the deceased, had Edition: current; Page: [153] the event been foreseen, would have given an equivalent out of his moveables. But as in fact the deceased signified no will nor Edition: orig; Page: [259] intention to burden his executor, the judges refused to make him liable.*,12 The Roman law concerning a legatum rei alienae13 adheres to the same principle. Where a testator legates a subject as his property, which after his death is discovered to be the property of another, the heir is not bound to give an equivalent, because deficit voluntas testatoris.14 But if the testator knew that the subject was not his, it must have been his will, if he did not mean to be jocular, that it should be purchased by his heir for the legatee; and this implied will was accordingly made effectual by the Pretor as a judge of equity.

Edition: current; Page: [154]

SECTION IV: A deed or covenant that tends not to bring about the end for which it was made.

Where a man exerts an external act, however inconsiderately, he cannot be relieved, quia factum infectum fieri ne-Edition: orig; Page: [260]quit.1 But a man making a deed or covenant may be relieved by a sentence of the judge; and will be relieved if a good cause be shown. With respect particularly to the subject of the present section, a deed or covenant, as laid down in the beginning of this chapter, is a mean employed to bring about a certain end or event: whence it follows, that it ought to be voided where it fails to be a mean, or, in other words, where it tends not to bring about the end or event desired. To think otherwise, is to convert a mean into an end, or to adhere to the mean without regard to the end.2 Common law, regarding the words only, may give force to such a deed or covenant; but equity pierces deeper into the nature of things. Adverting to the fallibility of our nature, it will not suffer one to be bound by such an engagement; and considers, that when he is freed from it, it is only lucrum cessans3 to the party who insists on its performance, not damnum datum.4

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 Edition: orig; Page: [261] in view of the one or the other party, but that which is spoken out, or understood by both; for a thought retained within the mind, cannot have the effect to qualify an obligation more than to create it. The overlooking this distinction 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 set; and his opinion is, that in equity the purchaser is not bound. This opinion is of a man unacquainted with Edition: current; Page: [155] the world and its commerce. Were mistakes of that 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 a large quantity, I ought to be relieved in equity, having now no occasion for the goods purchased. 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, Edition: orig; Page: [262] more than at common law. If a subject answer the purpose for which it is purchased, the vender has no farther concern: he is entitled 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 purposed 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;5 a bond, Edition: orig; Page: [263] 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.

The first example shall be from deeds. Upon a young man living abroad under sentence of forfeiture, his father settled an annuity for life, ignorant that it would fall to the crown. This deed will not bind the granter; for it does not produce the end or effect intended. To sustain it, would be to give force to the mean without regarding the end.

Here a subtile question casts up, What in the view of law is to be held Edition: current; Page: [156] the end upon which the fate of the deed or covenant depends: is a court of equity confined to the immediate end, or may it look forward to consequences. An example will explain the question. In a contract of marriage, the estate is settled on heirs-male of the marriage. The eldest son, being forfeited for high treason, is forced to abandon his native country. The father makes a settlement, excluding him from the succession, in order to prevent his estate from falling to the crown. Can this Edition: orig; Page: [264] settlement be supported by a court of equity? I doubt. The contract of marriage was a proper mean for the end in view, namely, that the estate should descend to the heirs-male of the marriage. The contractors had no farther view; and if a court were to be sway’d by unforeseen consequences, deeds and covenants could not be much relied on. Suppose that after the father’s death a pardon is procured for the son, must not this have the effect to void the last settlement, and to restore the son to his right as heir of the marriage? Yet in a case still more delicate, the court of session gave judgment for the father, influenced probably by an overflow of compassion and humanity. James Thomson, in his marriage-contract, provided his estate and conquest to the heirs of the marriage. The heir, a son idle and profligate, became a notour bankrupt;6 which induced the old man to settle his estate on his grandchildren by that son, burdened with the liferent of the whole to him. A reduction being brought of this settlement as in defraud of the marriage-contract, the court of session repelled the reason of Edition: orig; Page: [265] reduction, and sustained the settlement.* Beside setting the father free from a rational and solemn contract, there was a very material point in equity against sustaining the settlement, which seems to have been overlooked. What if the whole debts, or the bulk of them, were contracted by the son for necessaries before his bankruptcy? On that supposition, the creditors were certantes de damno vitando: the children, on the other hand, were certantes de lucro acquirendo. Take a different view of the case: What if the bankrupt, by some fortunate adventure, a lottery-ticket for example, had been enabled to pay all his debts: would he not have been entitled as a free Edition: current; Page: [157] man to claim the benefit of the contract of marriage, seeing the only cause for disinheriting him was now removed? If so, a contract of marriage is but an unstable security, as it may depend on future contingencies whether it will be effectual or no.

In questions between husband and wife, a contract of marriage is a contract in the Edition: orig; Page: [266] strictest sense; but in questions with the heirs, it is rather to be considered as a deed; in which light it is viewed above. I proceed now to give examples relative to what are properly contracts. In a contract of sale, the circumstance regarded at common law, is the agreement of the parties, the one to sell the other to purchase the same subject. What are its qualities, whether the price be adequate, and whether it will answer the end for which it is purchased, are left to the regulation of equity. The last belongs to the present section; one instance of which makes a figure in practice, to wit, where goods sold are by some latent insufficiency unfit for the purchaser’s use. A horse is bought for a stallion that happens to be gelt, or a hogshead of wine for drinking that happens to be sour. If the purchaser be notwithstanding bound, he is compelled to accept goods that are of no use to him, and over and above to pay a full price for what is of little or no value. It would, on the other hand, be to act against conscience, for the vender to take a full price in such a case. Supposing the goods to be sufficient at the time of the bargain, but in-Edition: orig; Page: [267]sufficient at the time of delivery, the loss naturally falls on the vender, who continues proprietor till the subject be delivered. If insufficient at the time of the bargain, there is an additional reason for setting it aside, namely error; for error relieves the person who is certans de damno vitando against the person who is certans de damno captando, which will be more fully explained afterward.a

A large cargo of strong ale was purchased from a brewer in Glasgow, Edition: current; Page: [158] in order to be exported to New York. In a suit for the price, the following defence was sustained, That having been not properly prepared for the heat of that climate, it had bursted the bottles, and was lost. It was not supposed, that the brewer had been guilty of any wilful wrong; but the defence was sustained upon the following rule of equity, That a man who purchases Edition: orig; Page: [268] 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 where the goods are 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-right7 in favour of his creditors; and, among his other subjects, dispones to the trustees his interest in a company-stock. A creditor of the company, who 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.8 Is he bound by his agreement? He undoubtedly draws by it all the benefit he Edition: orig; Page: [269] 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 this man shall draw such proportion of the bankrupt’s effects as he is intitled to by law. The means concerted, that he shall draw an equal proportion, contribute not to this end, but to one very different, namely, 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.

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Having laid open the foundation in equity for giving relief against a covenant where performance answers not the end purposed 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 ful-Edition: orig; Page: [270]fil 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 fide, 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, of no use to him? The Roman law indeed gave an actio redhibitoria9 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 squares not 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 Edition: orig; Page: [271] considerable inequality. Hence the actio quanti minoris,10 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 Edition: current; Page: [160] 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 utili-Edition: orig; Page: [272]ty, we ought to sustain the actio quanti minoris, as well as the actio redhibitoria. But if we adhere to utility, the great law in commercial dealings, we ought to sustain neither. To indulge debate about the true value of every commercial subject, would destroy commerce: and for that reason, equity, which has nothing in view but the interest of a single person, must yield to utility, which regards the whole society.

SECTION V: Equity with respect to a deed providing for an event that now can never happen.

This section chiefly concerns settlements intra familiam1 and such like, which on the part of the maker are gratuitous. I cannot easily figure a case relative to a covenant where it can obtain.

A bachelor in a deadly disease, daily expecting death, settles his estate on a near relation, without reserving a power to alter, which he had no prospect of needing. He recovers as by a miracle, and lives Edition: orig; Page: [273] many years. The deed, being in its tenor pure, is effectual at common law. But as death was the event provided for, which did not happen, and as he had no intention to give away his estate from himself, it will not be sustained in equity. And indeed it would be hard to forfeit the poor man for a mistake Edition: current; Page: [161] in thinking himself past recovery. In this example, the failure of the event is accidental, independent of the granter’s will. But equity affords relief, even where the failure is owing to the granter himself. An old man, on a preamble that he was resolved to die a bachelor, settles his estate on a near relation, reserving his liferent and power to alter. In dotage, he takes a conceit for a young woman, marries her, but dies suddenly without altering his settlement. Seven or eight months after, a male child is born, who claims the estate. The deed cannot stand in equity, being made for an event that has not fallen out, to wit, the granter’s dying without children.2 Take another example which depends on the same principle. In the year 1688, the Duchess of Buccleugh obtained from the crown a gift of her husband the Duke of Mon-Edition: orig; Page: [274]mouth’s personal estate, which fell under his forfeiture. As by this means their younger son the Earl of Deloraine was left unprovided, she gave him a bond for £20,000. The Duke’s forfeiture being afterward rescinded, the Earl of Deloraine, executor decerned to him,3 claimed from his mother the Duke’s personal estate. The Duchess was willing to account; but insisted that payment of the bond should be held as part-payment of the personal estate. Which was accordingly found.* Here the event provided for, which was the Earl’s being deprived Edition: current; Page: [162] of his legal right by his father’s forfeiture, had failed; and consequently the bond could not be effectual in equity. There was beside a still stronger objection against it, namely, that the pursuer had now right to the very subject out of which the bond was intended to be paid.

Cases of this nature are resolved by lawyers into a conditional grant, imply’d, they say, though not expressed. A condition may be imply’d in the case last mentioned; but the circumstances of the two Edition: orig; Page: [275] former will not admit such implication. In the first, the granter is described as having lost all hope of recovery; in which he would not readily think of making his death a condition of the grant. Neither in the other is there any foundation for implying a condition si sine liberis,4 as the granter declared his firm intention to die a bachelor. In cases of this nature, there is no necessity of cutting the Gordian knot by a supposed condition. It is loosed with great facility, by applying to it a maxim, That a deed providing for an event that has failed, cannot in equity be effectual.

SECTION VI: Errors in deeds and covenants.1

In the beginning of this chapter it is laid down, that the moral sense, respecting the fallibility of our nature, binds us by no engagement but what is fairly done with every circumstance in view; and consequently, that equity will afford relief Edition: orig; Page: [276] against rashness, ignorance, and error. In handling the circumstance last mentioned, it will contribute to perspicuity, that we distinguish errors that move a person to enter into a deed or covenant, from errors that are found in the deed or covenant itself. Errors of the former kind happen more frequently with respect to deeds: of the latter kind, seldom but in contracts. I begin with the first kind, of which the following is an example. My brother having died in the East Indies, leaving children, a boy is presented to me as my nephew, with credentials in appearance sufficient. After executing a bond in his favour for a moderate Edition: current; Page: [163] sum, the cheat is discovered. The moral sense would be little concordant with the fallibility of our nature, did it leave me bound in this case. And supposing the cheat not to be discovered till after my death, a court of equity, directed by the moral sense, will relieve my heir. Here the relief is founded on error solely; for the boy is not said to have been privy to the cheat, or to have understood what was transacting for his behoof. To the same purpose Papinian, “Falsam causam legato non obesse, verius Edition: orig; Page: [277] est; quia ratio legandi legato non cohaeret. Sed plerumque doli exceptio locum habebit, si probetur alias legaturus non fuisse.”* The circumstances of the following case make it evident, that the error was the sole motive, bringing it under the 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 Edition: orig; Page: [278] fuisset heres scripta.’” The testament could not stand in equity, Edition: current; Page: [164] proceeding from an erroneous motive. To sustain such a testament, would be to disinherit the favourite heir, contrary to the will of the maker. As to the legacies contained in the latter testament, they were justly sustained, as there appeared no evidence nor presumption that the testator was moved by an error to grant them.

In many cases it may be doubted, whether error was the sole motive, or one of them only. To solve that doubt, the nature of the deed will have great influence. A rich man executes a bond for a small sum in favour of an indigent relation, upon the narrative, that he had behaved gallantly in a battle, where he was not even present. Equity will not relieve the granter against this bond, because charity of itself was a good cause for granting. The following texts of the Corpus Juris belong to the same head. “Longe magis legato falsa causa adjecta, non nocet: veluti cum quis ita dixerit, ‘Titio, quia me absente negotia mea curavit, stichum do, lego.’ Vel ita: ‘Titio, quia patro-Edition: orig; Page: [279]cinio 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.”

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With respect to a deed entirely gratuitous to a person unconnected with the granter, and above taking charity, an error like what is mentioned above, will be held more readily the sole motive; and consequently a ground in equity for voiding the deed.

Where there is any foundation of controversy, a transaction putting an end to it must be effectual; for where there is a Edition: orig; Page: [280] rational motive for making a deed, the making of it will never be held to proceed from error. But where a man is moved to make a transaction on supposition of a claim that has no foundation, as in the case of a forged deed, he will be relieved from the transaction in equity, the motive being erroneous.* An unequal transaction may be occasioned by error; but here utility forbids relief; for to extinguish law-suits, the great source of idleness and discord, is beneficial to every member of society.

We proceed now to errors found in a deed or covenant after it is made. These are of two kinds: one prevents consent altogether; as where the purchaser has one subject in view, the vender another. And as no obligation can arise where there is no agreement, such a covenant, if it can bear that name, is void at common law, and there is no occasion for equity. The other kind is where the error is in the qualities of a subject, not in the subject itself; a purchase, for example, of a horse understood to be an Arabian of true blood, but discovered after to be a mere Ple-Edition: orig; Page: [281]beian. The bargain is effectual at common law; and the question is, Whether or how far there ought to be a relief in equity.

We begin with errors that regard the subject itself. If in the sale of a horse, the vender intended to sell the horse A, the purchaser to buy the horse B, there is no agreement: the one did not agree to sell the horse B, nor the other to buy the horse A. The same must hold in every bargain of sale, whatever the subject be.

Next, where an error respects not the subject, but its qualities. I purchase, for example, a telescope, believing it to be mounted with silver, though the mounting is only a mixed metal. Or, I purchase a watch, the Edition: current; Page: [166] case of which I take to be gold, though only silver gilt. Equity will not relieve me from the bargain, as the instrument equally answers its end, whether more or less ornamented. The most that can result from such an error, is to abate the price, in order to make the bargain equal; and this was done in the Roman law. But a claim of that nature, impeding the free course of commerce, is rejected by commercial nations. Edition: orig; Page: [282]

It is a very different case, where the error is such as would have prevented the purchase had it been discovered in time, termed in the Roman law, Error in substantialibus.2 Example: A horse is purchased as a stallion for breed; but unknown to both, he happened to be gelt before the bargain. It may be doubted, whether such a bargain be not effectual at common law, as the error is only in the quality of the horse; but undoubtedly it may be set aside in equity, upon a principle mentioned more than once above, That the vender certans de lucro captando, ought not to take advantage of the purchaser’s error, who is certans de damno vitando. Another principle concurs, handled sect. 4 of the present chapter, that one is not bound to fulfil a contract which answers not the purposed end.

We proceed to errors that respect the property of the subject sold. As here the Roman law affords not much light, we have the greater need to proceed warily. I sell to John a horse understood by both of us to be my property. After all is agreed on, it is discovered to be his property. The bargain is void even at common Edition: orig; Page: [283] law, as it is incapable of being fulfilled on either side. I cannot convey the property to him, nor can he receive the property from me. It was not my intention to sell a horse that did not belong to me; nor was it his intention to pay for his own horse. The case where the horse belongs to a third person, is in effect the same. I did not intend to sell a horse that belongs not to me; nor did John intend to purchase a horse from me that belongs to a third person. If the mistake be discovered before delivery to John, I am bound in justice to deliver the horse to the proprietor, not to John; and John is under no obligation to pay the price. If the discovery be not made till after John has received the horse and paid the price, there is no obligation on either side, but that I restore the price, as the bargain was void from the beginning.

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That the same doctrine ought to obtain in the sale of land, is extremely evident. And as in a sale of land writing is essential, the warrandice contained in the disposition,3 or in the minute of sale, ought not to go further than to oblige the vender to repeat4 the price in case of eviction; un-Edition: orig; Page: [284]less the circumstances of the bargain be such as to justify a more extensive warrandice. Hence it follows, that the clause of warrandice in a disposition or minute of sale of land, even what is termed absolute warrandice, ought to be confined to a repetition of the price upon eviction, unless the vender be further bound in express terms. Yet absolute warrandice here is by the generality of lawyers understood as binding the vender to make up to the purchaser all the loss he sustains by eviction, which in effect is the value of the subject at that time. Whether this be a just conception, deserves the most serious consideration, being of capital importance in the commerce of land.

That the eviction of land ought not to subject the vender to harder terms than the eviction of a moveable, is a doctrine that at least has a plausible appearance. A plausible appearance however is not sufficient: let us enter into particulars, in order to try whether some lurking objection may not be detected that will overturn it. If none can be detected, we may rest secure that the doctrine is solidly founded in principles. In communing about a sale Edition: orig; Page: [285] of land, the title-deeds are produced for the inspection of the purchaser: there is a search of the records; and the bargain is not concluded till the purchaser have full satisfaction that the vender is proprietor. If there happen, after the strictest examination, to be a latent defect in the progress, it is not to be charged on the vender more than on the purchaser. For what good reason then ought he to be made liable for the value of the land as at the time of eviction? The land was understood by both parties to belong to the vender: he wanted to have money for his land; the purchaser to have the land for his money; neither of which purposes can be fulfilled. The purchaser is not bound, because he cannot have the land he bargained for: the vender is not bound, because he agreed to sell his own land, not that of another. Suppose the eviction has taken place while Edition: current; Page: [168] the subject remains with the vender, the minute of sale is void, no less than in the case first mentioned, where the one has it in view to purchase the horse A, the other to sell the horse B. Nor can it make any difference that the purchaser is infeft before eviction. The infeft-Edition: orig; Page: [286]ment is void, as taken without consent of the proprietor: and after restoring the price, both parties are free as before they entered into the contract. Upon the whole, the vender must restore the price, because he cannot perform the mutual cause. And as for the purchaser, he can have no claim for the value of the subject evicted; because there can be no claim, either for a subject or its value, at the instance of a person who has no right to the subject. Add another argument no less conclusive. From a contract binding on no person, no claim can arise to any person; not even the claim against the vender for restoring the price, which arises not from the contract, but from being in his hand sine causa.5 Hitherto every particular is the same as in the sale of a moveable. The only difference that can found an argument of favour, is on the side of a vender of land. As in the sale of a moveable all rests on the information of the vender; it might be thought, that more is incumbent on him than on a vender of land, whose affirmation is not relied on, but the progress.

So much for common law. Let us now Edition: orig; Page: [287] examine, whether there be any ground in equity for subjecting the vender of land to all the loss that the purchaser may suffer by eviction. A bargain of sale is intended to be fair and equal. The purchaser gets the land, the vender the price, and both are equally accommodated. By eviction, the vender is the only sufferer. Land is seldom alienated but to pay debt. The vender is deprived of the price: his debts remain unpaid; and he is reduced to poverty. But what does the purchaser suffer? He is indeed deprived of what he probably reckons a good bargain; but the price, which is restored to him, will give him the choice of as good a bargain in any corner of Scotland. This is a just state of the case; upon which I put the following question, Is there any equity for subjecting the vender, after restoring the price, to pay what more the land may be worth at the time of eviction? Before answering this question, let the following case be considered. Soon after the purchaser’s Edition: current; Page: [169] entry to the land, a valuable lead or coal mine is accidentally discovered, for which the purchaser paid nothing, the parties having had no view to it. This mine Edition: orig; Page: [288] belongs to the evicter, and to neither of the contractors. Suppose now the purchase to have been only of a few acres, the mine may intrinsically be worth a hundred times the price. Not satisfied with saying, that I see no equity for obliging the vender to pay this immense sum; I have no hesitation to affirm positively, that it would be highly unjust. This example deserves attention. Would it not require the most express terms in a clause of warrandice to oblige the vender to pay such a sum? One thing will certainly be granted me, that such a contract entered into by a facile person, or by a minor even with consent of curators, would be voided without hesitation. There may indeed be good ground to demand caution from the vender to restore the price in case of eviction; considering that venders of land are seldom in opulent circumstances. More cannot justly be demanded.

The hardship is here intolerable, which no man with his eyes open will submit to. But now, supposing, for argument’s sake, the purchaser’s claim, however much above the price, to be well founded; is there nothing to be said for the vender, Edition: orig; Page: [289] where the land happens to fall in value below the price? If the purchaser, upon a rise of the market, be intitled to draw from the vender more than the price, ought not the vender to have the benefit of a falling market to pay less than the price? I cannot invent a case where the maxim, Cujus commodum, ejus debet esse incommodum,6 is more directly applicable. It is evident, however, that the vender must restore the price wholly, as the bargain was from the beginning void; and for the same reason, the purchaser can have no claim for more than the price.

Viewing this case with regard to expediency, it is of importance to the public, that the commerce of land, the most useful of all, be free, easy, and equal. If a vender must be so deeply burdened as above, and laid open to such consequences, no man will sell land but in the most pinching necessity. Men at any rate are abundantly averse to sell land, which reduces many to low circumstances; and if this law should obtain, there would be few sales but by public authority. Nor is this all. This law, as to Edition: current; Page: [170] meliorations, would be of no use to the purchaser, who Edition: orig; Page: [290] is secured absolutely without need of oppressing the vender: he is intitled to retain possession, till the evicter make good to him all the expence profitably laid out upon the subject.

Hitherto of a complete progress. Very different is the case where the progress is acknowledged to be incomplete. If in this case the vender be unwilling to sell under the market-price, he must submit to the hazard of eviction, and give warrandice to make up to the purchaser what he loses by eviction, being the value of the subject at the time of eviction. It is a chance-bargain, importing, that if the land sink in value below the price, the purchaser is intitled to that value only; and is intitled to double or triple the price, if the land rise so high in value.

What then is the true import of a clause of absolute warrandice in a sale of land? In the sale of a moveable, there is no warrandice. The vender is held to be proprietor, of which the purchaser is satisfied without requiring warrandice. Neither is there use for warrandice against incumbrances; because a moveable passes from hand to hand, without being subjected to Edition: orig; Page: [291] any incumbrance. But in a sale of land warrandice is necessary; for though there may be no doubt of the vender’s right, yet it is proper that the purchaser be secured against incumbrances, to many of which that appear not on record land is subjected. Clauses of warrandice are different, according to the nature of the bargain. In some contracts of sale, the vender gives warrandice against his own facts and deeds only; in some, against the facts and deeds of his predecessors and authors; in some, against all incumbrances whatever; and this last is termed absolute warrandice. But of whatever tenor the warrandice be, it will not be understood to guard against a preferable title of property, unless expressed in the clearest terms. The reason is given above, that to extend warrandice so far, where the progress is good and the price adequate, is repugnant to common law, to equity, and to expedience.

The authors of our styles7 have had a just conception of this matter. Every clause of warrandice I have seen ingrossed8 in a disposition of land Edition: current; Page: [171] for a just price, and where the progress was held sufficient, is Edition: orig; Page: [292] confined to incumbrances, without any mention of eviction on a preferable right of property. The style follows: “warranting the land from all wards, reliefs, nonentries, marriages of heirs, liferent escheats, recognitions, liferent infeftments, annualrents, and from all and sundry other burdens and incumbrances whatever, whereby the land may be evicted, or possession impeded, at all hands, and against all deadly, as law will.” Nor a syllable of eviction upon a preferable title of property; which, as it cuts deeper than any incumbrance, would be placed in the front were it intended. Nor let the concluding words, at all hands and against all deadly, create any doubt; it being an infallible rule in the construction of writs, Never to extend a general clause beyond the particulars to which it is added. This rule holds, even where the general clause is expressed absolutely, without reference to any of the antecedent articles in particular. In the present case, we have scarce occasion for that rule, as the general clause has an immediate reference to incumbrances, and to nothing else. Edition: orig; Page: [293]

It is admitted by all lawyers, that in the conveyance of claims or debts, absolute warrandice does not secure the purchaser against eviction upon a preferable title; and I am utterly at a loss to see, that the same precise words should have a different meaning in a conveyance of land. Lord Stair indeed endeavours to account for this difference; but without success, as far as I can comprehend. His words are, “Warrandice has no further effect than what the party warranted truly paid for the right whereby he was or might be distressed, though less than the value of the right warranted. This will not hold in warrandice of land; as to which land of equal value, or the whole worth of what is evicted as it is at the time of the eviction, is inferred; because the buyer had the land with the hazard of becoming better or worse, or the rising or falling of rates, and therefore is not obliged to take the price he gave.”* I cannot avoid observing, that two very different subjects are jumbled together in this passage; namely, the purchasing a competing right in order to pre-Edition: orig; Page: [294]vent eviction, and the effect of warrandice where land is actually evicted. These are different propositions depending on different principles, and entirely unconnected; Edition: current; Page: [172] yet are opposed to each other as if they were parts of the same proposition. Can any accuracy be expected in such a manner of handling a question? His Lordship beside stops short in the middle. In the case of rising of rates, the purchaser, says he, is not obliged to take the price he gave. Not a word upon the case of falling of rates. His Lordship upon maturer thinking would have seen, that as the subject never belonged to the purchaser, he could have no claim for it or its value against the vender; and he also would have seen, that from a contract binding neither party, no claim can arise to either party. But this is not all. I am at a loss to conceive that the hazard of becoming better or worse, can be of any weight in this case. One thing I clearly conceive, that if this circumstance have any weight, it will make absolute warrandice to have the same effect in the conveyance of debts, that it is said to have in the conveyance of land. Real debts9 produced in a rank-Edition: orig; Page: [295]ing10 are commonly at first of uncertain value. An adjudication is purchased for a trifle, which, by objections sustained against competing creditors, draws at the conclusion a large sum. There is here perhaps more hazard of becoming better or worse, than in the purchase of land: yet, after the purchaser of the adjudication has laid out a considerable sum in obtaining a high place in the ranking, he has upon eviction no claim against the vender but for the price he paid: he must rely on the evictor for recovering the expence of process. Sensible I am from my own experience, how difficult it is to guard against errors in the hurry of composition. Lord Stair was an able lawyer; and, not to mention the case of a mine discovered after the purchase, had he but thought on useful improvements laid out by the purchaser, he certainly would not have thought it reasonable that the vender should be liable for the value of these, considering that the evicter is bound for it. The following scene might have occurred to his Lordship. After adjusting the progress and the price, “Nothing remains,” says the intended purchaser, “but that you Edition: orig; Page: [296] warrant the expence I intend to lay out upon inclosing, planting, Edition: current; Page: [173] and other improvements.[” “]Are you not secured by law?” answers the vender: “you are intitled to retain possession till you obtain full satisfaction from the evicter. You have thus real warrandice, and need not the addition of personal.” “I insist however for your warrandice,” replies the other: “one cannot be made too secure.” “After being absolutely secure,” rejoins the vender, “beyond the possibility of a disappointment, your demand for my warrandice has no meaning but to have it in your power to oppress me. A demand so irrational proves you either to be a fool or a knave: I reject all dealing with you.” As no man of sense would advise the vender to submit to that demand, I hold it as demonstration, that the expence of profitable improvements cannot be understood to be comprehended in a clause of absolute warrandice. As to voluptuary expences,11 termed so by Roman writers, the law, it is true, gives no security in case of eviction; nor is there reason for it. A man embellishes his person, his house, his fields, in order to make Edition: orig; Page: [297] a figure. In case of a voluntary sale, he reckons not upon any additional price for a fine garden, and as little in case of eviction. And were the vender to be made liable, it would oblige venders to be extremely cautious about the person they sell to; no man could sell an acre or two without the hazard of absolute ruin. Upon these acres the purchaser erects a palace, adorns his gardens with temples, triumphal arches, cascades, &c. &c. sufficient to exhaust the riches of a nabob. The poor vender all this while sits trembling at every joint for fear of eviction.

I put a case the most favourable that can be for the purchaser, to which the argument urged by Lord Stair is directly applicable. By a gradual rise of the market without a farthing laid out on it, the land purchased thirty years ago has risen in value a third or fourth part above the price paid for it. There lies no claim against the evicter for this additional value; and it is so much lost to the purchaser if the vender be not liable. This probably is the case his Lordship had in view. If the vender, major, sciens, et prudens,12 bound himself to make up that loss, he must sub-Edition: orig; Page: [298]mit. But I state a plain question, Is there any thing in justice, or in the nature of a contract of sale, to lay this risk on the vender? In making the bargain, both parties are equally in bona Edition: current; Page: [174] fide, the progress is held to be good by both; and both are losers; not equally indeed, for the vender, who must restore the whole price, is the greatest loser. Say, what is it that intitles the purchaser to draw from the vender the present value of the land? Not the contract, for a contract that does not bind can produce no action: not the property of the land, which did not pass to the purchaser. The only remaining foundation I can think of, is to claim that loss on the footing of damage. Neither can this hold, as there can be no claim for damage, except from express paction or from a delict; and the case supposed admits of neither. Nor could Lord Stair have a view to either, when the opinion he gives is founded solely on the rising or falling of rates.

This interesting point of law was judicially handled in a late process, Lord Napier contra the Representatives of Mr William Drummond, who sold the estate of Edition: orig; Page: [299] Edinbelly to his Lordship. The progress had been held sufficient by the purchaser; and the warrandice was in the ordinary style, the same that is above mentioned. It was found however by decree of the court of session, “That the representatives of Mr William Drummond are liable to Lord Napier for the value of the estate of Edinbelly, evicted from him, as the same was at the time of eviction.”* This judgement has a formidable appearance against the doctrine above inculcated. Yet as far as could be gathered from the reasoning of the judges, what moved them was not the terms of the absolute warrandice, but the two following arguments: First, That possessors of land ought not to be discouraged from making ornamental improvements; and, next, That though many evictions must have happened, there is not on record a single instance of a process for eviction: whence it was presumed, that the present value must have been submitted to by the vender, otherwise that it would have been demanded from him in a process. And the inference was, that Edition: orig; Page: [300] it is now too late to alter a practice so long established. To the first answered, That the possessor has absolute security for profitable improvements, which, as beneficial to the public, deserve every encouragement; but that ornamental improvements, being a species of luxury, are entitled to no favour; and were they intitled, that the evicter only ought to be subjected, as they were occasioned by his delay or negligence; especially as he now has the pleasure Edition: current; Page: [175] of them. Answered to the second, The presumption lies clearly on the other side. No man who has produced a progress to the satisfaction of the purchaser, will upon eviction find himself bound in conscience to pay the present value of the land, including all the improvements, voluptuary as well as profitable. And as there is no instance of a decree against the vender for that value, there is the highest probability that the demand has never exceeded the price, which will always be admitted without a process. As for embellishments in particular, the taste for them is but creeping in; and they are so rare in Scotland, as to afford no probabi-Edition: orig; Page: [301]lity that they ever were claimed upon eviction.

The arguments I have endeavoured to obviate, were spoken out; but what I conjecture chiefly influenced the judges, was the authority of Lord Stair; which could not fail to have great weight, considering that for a course of years it had been inculcated into every student as a rule of law, and adopted by every member of the court. Men, who in early youth have sucked in a maxim whether of law or of religion, are impregnable by argument. Much superior to that of reason must the authority be, which can operate a conversion. In matters arbitrary and doubtful, I chearfully submit to the authority of eminent writers, to that especially of Lord Stair, who is our capital writer on law. But neither reason nor common sense will justify such deference, with regard to points that are resolvable into principles.

But now, waving that subject, I have another attack to make on his Lordship, and on its offspring the late judgement of the court, which will open the eyes of our men of law, if any thing can. Though his Lordship’s opinion respects voluntary Edition: orig; Page: [302] sales only, yet it must equally hold in judicial sales, as the fluctuating value of land is the same whether sold publicly or privately. Yet this opinion is not made the rule in judicial sales. The practice is, that each creditor gives warrandice against eviction to the extent of what he draws of the price; justly, because the creditors cannot retain the price, if the purchaser be deprived of the land. But warrandice is never exacted from them for the value of the land in case of eviction. This has not only been the uniform practice from the commencement of judicial sales, but is a practice authorised by an express act of sederunt,* declaring, Edition: current; Page: [176] “That the creditors preferred to the price, shall, upon payment, dispone to the purchaser their rights and diligences, with warrandice quoad13 the sums received by them; so that in case of eviction of the lands disponed, they shall be liable to refund these sums in whole or in part effeiring14 to the eviction. And this is declared to be the import of any former obligements of warrandice given by creditors in the case foresaid.” Here we have Edition: orig; Page: [303] constant and uniform practice for a long course of time, authorised by the supreme court of the nation; which equals in authority an act of parliament. Now as, with respect to the present point, no difference can be figured between a public and a private sale, the rule laid down for the former must equally obtain with regard to the latter, were the case of the latter otherwise doubtful. Had the practice in public sales been suggested to the court, or had it occurred to any of the judges, we may rest with assurance, that a different judgment would have been given in the case of Lord Napier.

I have insensibly been led, from the close and concise manner of a didactic work, into a sort of dissertation. But the importance of the subject will I hope plead for me.

Hitherto of errors discovered in the contract itself. We proceed to errors arising in the performance of a contract. Under this head comes erroneous payment, or solutio indebiti,15 as termed in the Roman law. Of this there are two kinds; one where payment is erroneously made of an extinguished debt, supposed to be subsisting; and Edition: orig; Page: [304] one where a debt really subsisting is paid by a man who mistakes himself to be the debtor. To judge rightly of the former, the following preliminaries will pave the way. The sale of a subject as existing which does not exist, is void: the vender cannot deliver a non ens;16 and the purchaser is not bound to pay the price unless he get what he bargained for. In like manner, where an extinguished debt is assigned, understood to be subsisting, the assignment is void; and if the price have been paid, it must be restored on discovery of the error. This doctrine is applicable to the case in hand. As it is unjust in a creditor Edition: current; Page: [177] to take twice payment, he can have no pretext for detaining the second payment made erroneously by the debtor. The same must follow, where the second payment has been made to the creditor’s heir, who, though in bona fide, can have no better right than his predecessor had. The same will also follow in the case of an executor-creditor.17,* An assignee to a debt extinguished by payment obtains payment from Edition: orig; Page: [305] the debtor’s heir; both of them being ignorant of the former payment. The error is discovered rebus integris.18 The heir must have back the money he paid, being in the hands of the assignee sine causa; and the assignee is intitled to draw from the cedent the price he paid for a non ens. So far clear. But what if the error be discovered several years after, when the cedent happens to be insolvent? This intricate case is handled above, where it comes in more properly. There it is laid down, that the assignee having been deprived of his recourse against the cedent by the debtor’s rashly paying the debt a second time, neglecting to look into his affairs, the loss ought to rest on him. The argument is still stronger for the assignee, where a debt is purchased on condition that the debtor’s heir grant a bond of corroboration. This bond indeed corroborating a non ens cannot be effectual; but as the purchase was made on the faith of it, the loss occasioned by the cedent’s bankruptcy, ought to fall on the heir, who was at least rash or incautious, not on the purchaser, who acted prudently. And when Edition: orig; Page: [306] the price he paid to the cedent is made up to him by the heir, matters are restored to their original state, as if the bargain had not been made. There may be bargains against which there can be no restitution; as where a bond is assigned to a husband in name of tocher19 with his wife, which happens to be corroborated by the debtor’s heir before it was assigned to the husband. As the marriage was made on the faith of the bond of corroboration, the granter of the bond can have no relief, but must pay the whole to the husband. And so says Paulus: “Si quis indebitam pecuniam, per errorem, jussu Edition: current; Page: [178] 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.”*

We proceed to the case where a debt really subsisting is paid by a man who er-Edition: orig; Page: [307]roneously understands himself to be the debtor. This case has divided the Roman writers. To the person who thus pays erroneously, Pomponius gives a condictio indebiti.20, Paulus is of the same opinion. Yet this same Paulus, in another treatise, refuses action.§ The solution of this question seems not to be difficult.21 Were it the effect of the erroneous payment to extinguish the debt, a condictio could not be sustained against the creditor: a man who does no more but receive payment of a just debt, cannot be bound to repeat. But the following reasons evince, that a debt Edition: current; Page: [179] is not extinguished by erroneous payment. First, There is nothing that can hinder the creditor, upon discovery of the mistake, to restore the money, and to hold by the true debtor. Second, 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 were the debt already extinguished. Hence it follows, that the creditor holds the putative debt-Edition: orig; Page: [308]or’s money sine justa causa22 and consequently, that a condictio indebiti against him is well founded. But the circumstance that operates in the case first mentioned, where there exists no debt, operates equally here. Upon receiving payment bona fide from the putative debtor, the creditor thinks no more of a debt he considers to be extinguished; and therefore, if the real debtor become insolvent after the payment, the inconsiderateness of the putative debtor will subject him to the loss; which may instruct him to be more circumspect in time coming.

With respect to payment erroneously made by the debtor to one who is not the creditor, see book 2. chap. 5.

The legal consequences of the payment of a debt by a man who knows himself not to be the debtor, are handled book 1. part 2. at the end. Edition: orig; Page: [309]

SECTION VII: A deed or covenant being void at common law as ultra vires, can a court of equity afford any relief?

A Principle in logics, That will without power cannot produce any effect, is applicable to matters of law; and is thus expressed, That a deed ultra vires23 is null and void. Common law adheres rigidly to this principle, without distinguishing whether the deed be wholly beyond the power of the maker, or in part only. If it be one deed, it admits of no division at common law, but must be totally effectual or totally 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. Take the following illustrations.

Edition: current; Page: [180]

If one having power to grant a lease for ten years grants it for twenty, the lease is in equity good for ten years.* For here Edition: orig; Page: [310] there can be no doubt about will; and justice requires, that the lease stand good as far 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 li-Edition: orig; Page: [311]miting 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 lease challenged.

By the act 80, parl 1579,24 “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, a deed is held by the court of session to be of great importance when what is claimed upon it exceeds in value £100. And upon the statute thus constructed, it has often been debated, Whether a bond for a greater sum than £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 £100. A court of common law, adhering to the words of the statute, will refuse action upon it. Edition: current; Page: [181] And such was the practice originally of the court of ses-Edition: orig; Page: [312]sion.* 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 £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 £100. But in applying the rules of equity to this case, the bond ought to be for a valuable consideration, or at least be rational: if irrational, it is not intitled to any support from equity.

Oral evidence is not sustained in Scotland to prove a verbal legacy exceeding £100, but if it be restricted to that sum, witnesses are admitted.,25

When arbiters take upon them to determine articles not submitted, the award or Edition: orig; Page: [313] decreet-arbitral26 is at common law void even as to the articles submitted. A decreet-arbitral is considered as one entire act, which must stand or fall in totum. Equity, prone to support things as far as rational, separates the articles submitted from those not submitted, and sustains the proceedings of the arbiters as far as they had power. Thus, if two submit all actions subsisting at the date of the submission, and the arbitrators release 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 compromissi27 with respect Edition: current; Page: [182] 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 relative to the articles submitted, and found void as to the general discharges only.* Arbiters having decreed a sum to themselves and their clerk, for which the submission gave no Edition: orig; Page: [314] authority; yet the decreet-arbitral, as far as supported by the submission, was found good even at common law, so as to have the privilege of the regulations 1695,28 not to be liable to any objection but falsehood, bribery, and corruption. Upon this ground, an objection of iniquity was repelled as incompetent. Here the objection of iniquity had but an indifferent look: an objection carrying a strong appearance of justice, would probably have been better received.

Family-settlements are commonly more complex than any of the cases mentioned above, consisting of many parts interwoven so intimately, that if one be withdrawn as ultra vires, the rest must tumble. There is no remedy but to adjust the will to the present circumstances, in such a manner as the maker himself would have done had he foreseen the event. Take the following examples. A man having two sons, John and James, makes a deed, settling upon them his estate, consisting of two baronies, to John one of the baronies, the other to James. John’s part is evicted by one having a preferable right. The deed, as far Edition: orig; Page: [315] as in favour of James, will be supported at common law, which regards the words only without piercing deeper. But a court of equity considers, that to give to one of the brothers the whole that remains of the estate, and nothing to the other, is inconsistent with the will of the maker, who proportioned his estate between them in the same deed by a single act of will. Therefore to support that will as far as the present circumstances can admit, the court will divide the remaining estate between the brothers, in the same proportion that the whole was divided by the maker. And this may be done boldly; as being what the granter himself would have done, had he foreseen the event. The following example is of the same kind. A man settles his estate of £1000 yearly rent on his eldest son, burdened with £8000 to his eight Edition: current; Page: [183] other children. A farm making half of the estate is evicted. The children notwithstanding claim their whole provision; which perhaps would be sustained at common law, as there is no condition expressed. But assuredly, the provision was not intended to be made effectual, even though there should not remain a shilling Edition: orig; Page: [316] to the heir. In order to fulfil the maker’s will as far as the present circumstances admit, a court of equity will restrict the provision to £4000, which is giving to the younger children the same proportion of their father’s effects that was originally intended. But let it be remarked, that the result will be different where there is a bond of provision for £8000, and the estate settled on the heir by a different deed, or left to be taken up ab intestato [by intestacy]. He will be subjected to all the debts, and to the bond of provision among the rest. Take a third example. A man having three daughters, settles his land-estate on the eldest, with competent provisions to the other two. As this settlement happened to be made on deathbed, it was reduced by the younger sisters, who by that means came to be heirs-portioners29 with the eldest. Can they claim their provisions over and above? Here the whole was done in the same deed, and by a single act of will. It was not the intention of the father, that the eldest should have the estate independent of her sister’s provisions; and as little that they should have their provisions independent of their eldest sister’s right to Edition: orig; Page: [317] the estate. A court of equity, therefore, to support the father’s deed as far as possible, will reject the claim for the provisions. The younger sisters disobeying their father’s will, are not permitted to take any benefit from it. Equity suffers no person to approbate and reprobate the same deed. The younger sisters, therefore, if they adhere to their reduction, must give up their provisions.30 The following is a similar example. John Earl of Dundonald, by a deed of entail, settled his land-estate on his heirs-male; with the same breath settled his moveables by a testament; and executed bonds of provision to his daughters. These several writings, done unico contextu31 in pursuance of one act of will, and making a complete settlement of his estate real and personal, remained with him undelivered. Edition: current; Page: [184] After the Earl’s death, certain lands contained in the entail being found to be still remaining in hereditate jacente32 of a remote predecessor, they were claimed by the daughters as heirs of line. It was objected, That the whole settlement was one act of will, and one deed, though in different writings; that the pursuers could not approbate and reprobate; Edition: orig; Page: [318] and that therefore, if they claimed the lands contrary to their father’s will, they could take no benefit by that will. It was accordingly found, That the pursuers might chuse either, but could not have both.*

The settlement of an estate by marriage-articles upon the heirs of the marriage, is not intended to bar the husband from a second marriage, or from making rational provisions to the issue of that marriage. A man thus bound makes exorbitant provisions to the issue of a second marriage, such as his whole estate, or the greater part. This settlement, as a breach of engagement, is wholly void at common law; and it is a matter of delicacy for a court of equity to interpose where there is no rule for direction. It would, however, be inconsistent with common sense, that children should suffer as much by excess of affection in their father, as by his utter neglect. As it would be a reproach on law, that the children should be left without remedy, the court of session ventures Edition: orig; Page: [319] to interpose, by sustaining the provisions to such an extent as to be consistent with the engagement the father came under in his first contract of marriage. The court, however, never interposes without necessity; and if common law afford any means for providing the children, the matter is left to common law. The following case will illustrate this observation. Colonel Campbell, being bound by marriage-articles to provide to the issue the sum of 40,000 merks, with the conquest, did, by a deathbed-settlement, appoint his eldest son to be heir and executor; leaving it upon the Duke of Argyle and the Earl of Ilay to name rational provisions to his younger children. The referees having declined to act, the younger children insisted to have the settlement voided, as contradictory to the marriage-articles. It was urged for the heir, That the Colonel had power to divide the special sum and conquest, by Edition: current; Page: [185] giving more to one child and less to another; and that though the whole happens to be settled on the eldest son, by accident not by intention, it belongs to the court of session to remedy the inequality, by doing what was expected from the referees, Edition: orig; Page: [320] namely, to appoint rational provisions to the younger children. The court voided the settlement totally; which intitled the children per capita to an equal division of the subjects provided to them in the marriage contract.*

SECTION VIII: Where there is a failure in performance.

In order to distinguish equity from common law upon this subject, we 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, That in every engagement there is a term for performance; before which term there can be no demand; and after the term is past, performance at the term is imprestable.1, Edition: orig; Page: [321] A court of common law, confined to the words of a writing, 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 has failed. 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 Edition: current; Page: [186] 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. In a minute of sale of land, Edition: orig; Page: [322] a term is specified for entering the purchaser into possession, and for paying the price. 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, nor the price be paid, at a term that is now past: neither can damage be awarded for non-performance, as neither of the contractors has been in mora.2 But the remedy is easy in a court of equity; namely, to assign a new term for specific performance; which fulfils the purpose of the covenant, and makes the rights therefrom arising effectual.3 But the naming a new term for performance, must vary the original agreement. The price cannot bear interest from the term named in the minute, because the purchaser got not possession at that term: nor is the vender liable from that term to account for the rents, because he was not bound to yield possession till the price should be 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 Edition: orig; Page: [323] purchaser, for example, demands performance at the term stipulated; and years pass in discussing the vender’s defences. These being over-ruled, the purchaser insists for specific performance. What doth equity suggest in this case? for now, the term of performance being past, performance cannot be made in terms of the original articles. 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, at the instance of the purchaser, Edition: current; Page: [187] appoint an account to be made on the footing of the original articles. If the rent exceed the interest of the price, the balance may be justly claimed by the purchaser. But what if the interest of the price, as usual, exceed the rent? The vender will not be intitled to the difference; because no man is intitled to gain by his failure. In a word, the purchaser can claim damage in the former case, so far as he loses by the vender’s failure. But in the latter case, he gains by the failure, and has no damage to claim. This, at first view, may seem to clash with the maxim, Cujus commodum, ejus Edition: orig; Page: [324] debet esse incommodum.4 There is no clashing in reality: the vender suffers justly for his failure; but the purchaser cannot suffer, who was always ready to perform. This gives the true sense of the maxim, That it holds only between persons who are upon an equal footing; not between persons where the one is guilty, the other innocent. I need scarce add, that the option given to the purchaser upon the vender’s mora, is given to the vender upon the purchaser’s mora.

It frequently happens, that specific performance is imprestable; as where I sell the same horse first to John, and then to James. The performance to John becomes imprestable after the horse is delivered to James; and therefore, instead of specific performance, a court of equity must be satisfied, like a court of common law, to decree damages to John; according to the maxim, Loco facti impraestabilis succedit damnum et interesse.5

This suggests an inquiry, whether in awarding damages there be any difference between common law and equity. An obligor, bound to perform what he undertakes, ought to make up the loss occa-Edition: orig; Page: [325]sioned by his failure; and such failure accordingly affords a good claim for damages at common law as well as in equity. Thus, the purchaser of an estate from an apparent heir,6 having, along with the disposition, received a procuratory to serve and infeft the apparent heir, 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. The doer is bound at common law to make up Edition: current; Page: [188] the purchaser’s loss, though it be lucrum cessans7 only; and a court of equity can go no further. In cases of that nature, if skill be professed, unskilfulness will not afford a defence. “Proculus ait, si medicus servum imperite secuerit, vel locato vel ex lege Aquilia competere actionem.”* “Celsus etiam imperitiam culpae adnumerandum scripsit. Si quis vitulos pascendos vel sarciendum quid poliendumve conduxit, culpum eum praestare debere; et quod imperitia peccavit, culpam esse; quippe ut artifex conduxit.” Upon this rule the fol-Edition: orig; Page: [326]lowing case was determined. An advocate being debtor 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, containing a penalty. The advocate probably was ignorant that this was a nullity; but he undertook the trust of drawing the bill, and therefore was bound for its sufficiency.,8 Where a prisoner for debt makes his escape, it must be admitted, that the creditor is hurt in his interest; but he cannot prove any damage; for it is not certain that he would have recovered payment by detaining the debtor in prison, and it is possible he may yet recover it. But to be deprived of the security he has by his debtor’s imprisonment, is undoubtedly a hurt or prejudice; and the common law gives reparation by making the negligent jailor liable for the debt, as equity doth in similar cases. A messenger who neglects to put a caption9 in execution, affords another instance of the same kind. By his negligence he is subjected to the debt, which is said to be litem suam facere.10 Edition: orig; Page: [327] The Edition: current; Page: [189] undertaking an office implies an agreement to fulfil the duty of the office: negligence accordingly is a breach of agreement, which subjects the officer to all consequences, whether actual damage or other prejudice. At the same time, it ought not to escape observation, that as neglect singly 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 his duty. So far the remedy afforded by a court of common law is complete, without necessity of recurring to a court of equity.

Certain covenants unknown to common law, belong to a court of equity. This was the case of a bill of exchange, before it was brought under common law by act of parliament;11 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.12

And now as to the rules for estimating actual damage upon failure to perform a Edition: orig; Page: [328] covenant. A failure of duty, whether the duty arise from a covenant, or from any other cause, is a fault only, not a crime; and upon such failure no consequential damage that is uncertain ought to be claimed.* There is the greatest reason for this moderation with respect to Edition: current; Page: [190] covenants, where the failure is often occasioned by a very slight fault, and sometimes by inability without any fault. This rule is adopted by 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 venditor, mora non facta, consequi potuit; veluti si negotiator fuit, et, Edition: orig; Page: [329] pretio soluto, ex mercibus plus quam ex usuris quaerere potuit.”

At a slight view it might be thought, that to reject uncertain damage here is inconsistent with what is laid down above concerning a jailor or a messenger. But upon a more accurate view it will appear, that uncertain damage is not admitted in either case. The creditor’s risk upon escape of his prisoner is 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, and laying it on the jailor or messenger. Upon the whole, with respect to estimating actual damage from breach of covenant, there appears no defect in common law more than in estimating risk, to make the interposition of equity necessary.

Hitherto of a total failure. Next where the failure is partial only. Many obligations are of such a nature as to admit no medium between complete performance and total failure. Other obligations admit a partial performance, Edition: current; Page: [191] and conse-Edition: orig; Page: [330]quently a failure that is but partial. A bargain and sale of a horse furnishes examples of both. The vender’s performance is indivisible: if he deliver not the horse, his failure is total. The obligation on 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 praestanda13 are of the last kind. A waggoner who engages to carry goods from London to Edinburgh, and yet stops short at Newcastle, has performed his bargain in part, and consequently has failed only in part. The like, where a ship freighted for a voyage, is forced, by stress of weather, to land the cargo before arriving at the destined port. In cases of that kind the question is, What is the legal effect of a partial failure? The answer is easy at common law, which takes the bargain strictly according to the strict meaning of the words. I am not bound to pay the price or wages till the whole goods be delivered as agreed on. But in order to answer the question in equity, a culpable failure must be distinguished from a failure occasioned by acci-Edition: orig; Page: [331]dent or misfortune: a culpable failure can expect no relief from equity; the rule being general, That equity never interposes in favour of a wrong-doer: but where the failure is occasioned by accident or misfortune, the price or wages will be due in proportion to what part of the work has been done; and the claim rests on the following maxim, Nemo debet locupletari aliena jactura.14 Thus, where a man undertakes to build me a house for a certain sum, and dies before finishing, his representatives will be entitled to a part of the sum, proportioned to the work done; for in that proportion I am locupletior aliena jactura. And 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 good claim pro rata itineris. By the same rule, the freight is due pro rata itineris, as was decreed Lutwidge contra Gray.*

A process was lately brought before the court of session upon the following fact. Mariners were hired at Glasgow to per-Edition: orig; Page: [332]form a trading voyage, first to Newfoundland, next to Lisbon, and last to the Clyde. A Edition: current; Page: [192] certain sum per month was agreed on for wages, to be paid where 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 being taken by a French privateer, the mariners, when liberated from prison, claimed their wages pro rata itineris. This cause was compromised. It can scarce however admit of a doubt, but that the rule, Pro rata itineris, must hold with respect to mariners, as well as with respect to the freighter of a ship. And accordingly it is a common saying, That the freight is the mother of the seamen’s wages; meaning, that where the former is due, the latter must also be due.

What is said above is applicable to a lease. A lease, in its very nature supposes a subject possessed by one, for the use of which he pays a yearly sum to another: the possession and rent are mutual causes of each other, and cannot subsist separately. Land set in lease happens to be swal-Edition: orig; Page: [333]lowed up by the sea: this puts an end to the lease. Here the failure is total. A total sterility is in effect the same. Let us now suppose the sterility to be partial only. What says common law? It says, that such sterility will not intitle the lessee to any deduction of rent; that he must abandon the farm altogether, or pay the whole rent. In the following case, several rules of equity concerning sterility are opened. 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 lessees 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 let to others; by which means the fishing let to Adam-Edition: orig; Page: [334]son and Williamson became entirely unprofitable during the remainder of their lease. The granters of the lease having brought a process against the lessees for £36 Sterling, being the rent for the two last years, the defence was, a total sterility by the change of the current as aforesaid; and a proof being taken, the facts appeared to be what are above stated. It was pleaded for the pursuers, Edition: current; Page: [193] That 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 lessees adhered to the lease, and did not offer to surrender the possession, they certainly were in daily expectation that the current would take its former course. A tenant cannot pick out one or other steril year to get free of that year’s rent: if equity afford him any deduction, it must be upon computing the whole years of the lease; for if he be a gainer upon the whole, which is the present case, he has no claim Edition: orig; Page: [335] in equity for any deduction.15 It was carried, however, by a plurality, to sustain the defence of sterility, and to assoilzie the defenders from the rent due for the last two years.16 This judgement seems no 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 for the latter: the subject in controversy may be a trifle to the landlord, and yet be the tenant’s all. Let us put an opposite case. A widow 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 gentleman in opulent circumstances, for a rent of £15 for the house, and £25 for the orchard. He possesses for several years with profit. The orchard happens to be barren the two last years of the lease, and he claims a deduction upon that account. No one would give this cause against the poor widow. Such influence have extraneous circumstances, even where the judges are not conscious of them.17

Partial failure has hitherto been consi-Edition: orig; Page: [336]dered in its consequences with respect to the person who has failed to execute a commission. I proceed to the effect of a failure with respect to those who give the commission. Edition: current; Page: [194] A submission is a proper example. It being the professed intention of a submission to put an end to all the differences that are submitted, the arbiters, chosen to fulfil that intention, are bound by acceptance to perform. An award or decreet-arbitral is accordingly void at common law, if any article submitted be left undecided; for in that case the commission is not executed. Nor will such a decreet-arbitral be sustained in a court of equity, where claims made by the one party are sustained, and the other left to a process; which is partial and unfair. But where the claims are all on one side, and some of them only decided, equity will support the decreet-arbitral; it being always better to have some of the claims decided than none. But in this case, the decreet-arbitral, so far as it goes, must be unexceptionable; for a court of equity will never support a deed or act void at common law, except as far as it is just. Edition: orig; Page: [337]

SECTION IX: Indirect means employed to evade performance.

Among persons who are sway’d by interest more than by conscience, the employing indirect means to evade their engagements, is far from being rare. Such conduct, inconsistent with the candour and bona fides requisite in contracting and in performing contracts, is morally wrong; and a court of equity will be watchful to disappoint every attempt of that kind. 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,1 which will subject him to the multure2 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 be-Edition: orig; Page: [338]ing 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 Edition: current; Page: [195] 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 one made upon the son. In a process, after the gentleman’s death, for performance of the agreement, the defence was, That the agreement had not taken place, as the disposition was not in favour of the defendant, but of his son. The court judged, 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 can take benefit by his fraud. For which reason he was decreed to fulfil the engagement, as if the alteration had not been made.*,3 Edition: orig; Page: [339]

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

Considering the 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 Edition: current; Page: [196] 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 always the things enacted proper means to answer the end in view; falling sometimes short of the end, and sometimes going beyond it. Hence to make statutes effectual, there is the same necessity for the interposition of a court of equity, that there is with respect to deeds and covenants. But in order to Edition: orig; Page: [340] 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 enquiry.

Submission to government is universally acknowledged to be a duty: but the true foundation of that 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 what is it that binds future generations? 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 Edition: orig; Page: [341] 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 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 expressed 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. Consider farther, that 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 Edition: current; Page: [197] 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, Edition: orig; Page: [342] that like them it is rooted in human nature.* If a man be a social being and government be 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 enforc’d by the moral sense, it would be strange if nature were deficient with respect to the public duty only. But nature is not deficient in any branch of the human constitution: government is no 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 of society under government, there can be no means, it is true, other than compact; but 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 con-Edition: orig; Page: [343]viction 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 of wrong, of guilt, and of meriting punishment, when we transgress them.a Edition: orig; Page: [344]

Edition: current; Page: [198]

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 enquiry.

Many differences among statutes must be kept in view, in order to ascertain the powers of a court of common law con-Edition: orig; Page: [345]cerning them. Some statutes are compulsory, others prohibitory; some respect individuals, others the public; of some the transgression occasions damage, of others not; to some a penalty is annexed, others rest upon authority.

I begin with those which rest upon authority, 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 damages. Edition: current; Page: [199] Statutes relating to the public are for the most part of this nature; Edition: orig; Page: [346] 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 where no sanction is added, it must necessarily be the purpose of the legislature to leave the remedy to a court of law. This is a clear inference, unless we suppose the legislature guilty of 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 lege1 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 Edition: orig; Page: [347] 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 be construed to be such, unless from collateral circumstances it be Edition: orig; Page: [348] made evident, that there was an intention to contemn the law. Supposing then the transgression to be an act of omission only, and consequently not an Edition: current; Page: [200] object of 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 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 odium2 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 Edition: orig; Page: [349] 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;3 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 £50 Sterling. It was urged for the defendant, That the pursuer ought to 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 damage in this case; and therefore that to enforce these regulations a penalty is necessary. And if this remedy be neglected by the legislature, it must be 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 un-Edition: orig; Page: [350]der 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 Edition: current; Page: [201] 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. Disobedience however 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 attour4 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 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 Edition: orig; Page: [351] 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 as one of the means for repressing the evil, or the only means. This defect occasions in courts of law much conjectural reasoning, and many arbitrary judgements. The capital circumstance for clearing the doubt, is the nature of the evil prohibited. With respect to every evil 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 to evils less pernicious, 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.”5 Here is a penalty without declaring such bargains null: and yet it has ever been held the intendment of this act to dis-Edition: orig; Page: [352]charge usury totally; and the penalty is deemed as one mean only of making the prohibition effectual. There was accordingly never any hesitation to sustain action for voiding usurious bargains, nor even to make the lender liable for the sums received by him Edition: current; Page: [202] 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 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 Edition: orig; Page: [353] discharged to buy any lands, teinds, &c. the property of which is controverted in a process, under the certification of losing their office.” It has been always held the sense of this statute, to be satisfied with the penalty, without giving authority to reduce or void such bargains.6

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 sustain action upon such a contract or deed. And yet this distinction seems to have been overlooked in the court of session:7 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 a 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 Edition: orig; Page: [354] Edition: current; Page: [203] 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 take liberty to say, that this is a gross misapprehension of the spirit and intendment of the statute. Comparing together the statutes contained in both classes, both equally are prohibited: the difference concerns only the means employ’d for making the prohibition effectual. To repress the less noxious evils, the statutory penalty is thought sufficient: to repress the more noxious evils, beside inflicting the statutory penalty, a court may employ every lawful mean in its power. But evidently both are intended to be repressed; and justly, 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 conse-Edition: orig; Page: [355]quence, 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 enforce the will of the national legislator, 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? It is a transgression 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, concerning members of the college of justice, is satisfied with the penalty of deprivation, without declaring the bargain Edition: orig; Page: [356] 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 Edition: current; Page: [204] consideration of a very different nature: the refusing action is made necessary by the very constitution of a court of law; it being inconsistent with the design of its institution, to enforce any contract or any deed prohibited by statute. It follows indeed from these premises, that it is left optional to the vender to fulfil the contract or no 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,8 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, 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 Edition: orig; Page: [357] 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 hardened sinner. And yet, by mistaking the nature of prohibitory laws, actions in the court of session have been sustained for making such smuggling-contracts effectual. They are not sustained at present; nor I hope will be. “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 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 pro-Edition: orig; Page: [358]hibuisse 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.*

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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, Edition: orig; Page: [359] 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 empowering 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 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 Edition: current; Page: [206] powers with respect to matters of justice Edition: orig; Page: [360] that are left with it by the statute, and not bestowed upon courts of common law. I explain myself by an example. When goods were wrongously taken away, the common law of England gave an action for restitution to none but 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 unfolded when the statute of Marlebirge supplying the defect was made;* but no other remedy occurring, that statute empowers 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; Edition: orig; Page: [361] 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.9 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 defects in statutes. It is still enforcing justice in matters which come not under the powers of a court of common law.

Statutes that have utility for their object, are of two kinds. First, Those which are made for promoting the positive good and happiness of the society in general, or of some of its members in particular. Second, Those which are made to prevent mischief. 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 Edition: current; Page: [207] merely to promote the posi-Edition: orig; Page: [362]tive 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, 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.

SECTION 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. Edition: orig; Page: [363]

ARTICLE I.: Where the words are ambiguous.

The following is a proper instance. By the act 250. parliament 1597,1 “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 engrossed in the infeftment.” The forfeiting clause here is ambiguous: it may mean an ipso facto 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 upon 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 Edition: current; Page: [208] ignorance or inability. The construction chosen making the right voidable only, not void ipso Edition: orig; Page: [364] facto, 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.

ARTICLE II.: Where the words fall short of will.

In the act of Charles II. laying a tax on malt-liquors,1 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.

ARTICLE III.: Where the words go beyond will.

By the act 5. parl. 1695,1 it is enacted, “That hereafter no man binding for and Edition: orig; Page: [365] 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. 1695,2 for making effectual the debts of heirs who after three years possession die in apparency,3 is plainly contrived 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 Edition: current; Page: [209] the words to the sense of the statute, never sustains action upon this statute to gratuitous creditors.

The regulations 1695,4 admitting no objection against a decreet-arbitral but bribery and corruption only, reach unwarily Edition: orig; Page: [366] 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.5

By the statute 9° Annae, cap. 14,6 “The person who at one time loses the sum or value of £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. 5.7 “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 Edition: orig; Page: [367] 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 temporary. As here, therefore, the words go beyond will, it belongs to the court of session to limit this statute, by denying action if not brought within one year after the offence. Hence, in the decision January 19. 1737, Murray contra Cowan,8 where an action was sustained even after the year, for recovering money lost at play with the triple value, the court of session acted as a court of common law, and not as a court of equity.

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The following is an instance from the Roman law with respect to the hereditatis petitio,9 of words reaching inadvertently beyond the will of the legislator. “Illud quoque quod in oratione Divi Hadriani est, Ut post acceptum judicium id actori 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 orationes: quia po-Edition: orig; Page: [368]tuit 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.”*

SECTION 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, and fall short in others ubi par est ratio.1 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 Edition: orig; Page: [369] causa, in albo, vel in charta, vel in alia materia Edition: current; Page: [211] propositum erit, dolo malo corruperit; datur in eum quingentorum aureorum judicium, quod populare est.”2 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 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 Edition: orig; Page: [370] 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,3 cannot act more justly with respect to his predecessor’s creditors, than to bring his Edition: current; Page: [212] 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. 1695,4 was accordingly made, empowering 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;5 and the court of session supplied the defect, by sustaining a process at the instance of the heir Edition: orig; Page: [371] 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. 1661,6 declares, “That the creditors of the predecessor doing diligence7 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 Edition: orig; Page: [372] withdraw from the predecessor’s creditors part of his personal estate, is no less unjust than to withdraw from them part of his real estate.

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 not only enjoy’d the rents, but was enabled by that means to defend his Edition: current; Page: [213] possession against the creditors.* Among many remedies for this flagrant injustice, there is a clause in the act 62. parl. 1661,8 enacting, “That in case the apparent heir of any debtor shall acquire right to an expired apprising,9 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, Tho’ Edition: orig; Page: [373] 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 the 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 Edition: orig; Page: [374] 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. 359.10

It is chiefly to statutes of this kind that the following doctrine is applicable. “Non possunt omnes articuli singillatim aut legibus aut senatusconsultis Edition: current; Page: [214] 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, 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.11 Edition: orig; Page: [375]

An adjudication during the legal is a pignus praetorium:12 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 attention.

In a poinding13 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. 1469,14 was in reality a privilege bestowed upon the debtor, without any foundation in equity; Edition: current; Page: [215] and therefore equity could not support an extension of the reversion one hour beyond the time granted by the statute. But the nature of an apprising was totally reversed, by an oppressive and dishonest practice of Edition: orig; Page: [376] attaching15 land for payment of debt, without preserving any equality between the debt and the land; great portions of land being frequently 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 any estimation of value, ought to have been reprobated as flying in the face of law. By what means it happened that creditors were indulged to act so unjustly, I cannot say; but so it is, that such apprisings were supported even against the clearest principles of common law. An apprising so irregular cannot indeed be held as a judicial sale for a just price: the utmost indulgence that could be given it, was to hold it to be a security for payment of debt. Accordingly the act 6, parl. 1621,16 considers it in that light, enacting, “That apprisers shall be accountable for their intromissions17 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 Edition: orig; Page: [377] own. And it is considered in the same light by the act 62. parl. 1661,18 “ranking pari passu19 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 evidently implies that the property belongs to the debtor.a

An apprising, then, or, instead of it, an adjudication, has, during the Edition: current; Page: [216] legal, sunk down to be a pignus praetorium, or a judicial security for debt; and the remaining question is, Whether it be converted into a title of property upon expiry of the legal? The act 1621 above mentioned makes apprisers accountable for their in-Edition: orig; Page: [378]tromission within the legal; and if they be not accountable after, ought it not to be inferred, that they must be held to be proprietors? It may indeed be clearly inferred from the act, that they are not accountable after the legal is expired; but it follows not that the property must be held to be in them: I instance a proper wadsetter, who is not proprietor of the subject, and yet is not liable to account. I say further, that a court of equity, though it has no power to overturn express law, is not bound by any inference drawn from a statute, however clear, except as far as that inference 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 cu-Edition: orig; Page: [379]stomary to attach land at random without regarding its extent. The debtor’s 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 not signify the contrary. To relieve the creditor as well as the 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 Edition: orig; Page: [380] Edition: current; Page: [217] only gives the creditor an option, either to continue in his former situation, or to take the land for his debt; which last must be declared in a process, intitled a declarator of expiry of the legal. This removes all hardship: 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 transferable only, and not to be transferred but by the intervention of a declarator. The declarator here, serves the same double purpose that it serves in the lex commissoria in pignoribus:20 it is a declaration of the creditor’s will to accept the land for his money; and it relieves the debtor from 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 conform-Edition: orig; Page: [381]able to the principles 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 open an expired legal, in order to afford the debtor an opportunity to redeem his land by payment of the debt. And this 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.*,21

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In another particular, our practice appears to deviate far from just principles. Edition: orig; Page: [382] 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, he must have an option, to adhere to his debt, or to take the land instead of it. This is established in our present practice: and what man is so blind as not to perceive what necessarily follows? An adjudger, upon whose will it depends to continue creditor, or to take himself to the land, cannot 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 enquire. It is held, 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 consequently that he has no power to redeem, nor to purge his failure of payment. Here we find a direct inconsistency in our practice: with respect to the creditor, the property is not his, till he obtain a declarator of expiry of the legal: with respect Edition: orig; Page: [383] to the debtor, 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 cannot be reconciled; but the cause of them may be accounted for. In our practice, there is a strong bias to creditors in opposition to their debtors. This bias hath bestow’d on an appriser the equitable privilege of an option between the debt and the land upon which he 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.

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

By the common law of England, ecclesiastics were at liberty to grant leases without limitation of time. As this liberty might be exercised greatly to the hurt Edition: orig; Page: [384] of their successors in office, the statute 13° Eliz. cap. 10.1 was made, prohibiting ecclesiastics from granting a lease for a longer time than twenty-one years, or three lives. In the construction of this statute, it is held, that a lease during the life of the granter is good were he to live a century; for not being within the mischief, it is not within the remedy.

The act 6. parl. 1672,2 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 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 citation3 that was never given. But as there can be no opportunity for this abuse where an execution is written upon the back of the summons, it belongs to a court of equity, with respect to a case where the statutory remedy is un-Edition: orig; Page: [385]necessary, to relieve so far from the enacting clause; which is done by declaring, that it is not necessary to name the pursuers and defenders where the execution is written on the back of the summons.*

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By the 34 and 35 Henry VIII. cap. 5. §14.4 it is declared, That a will or testament made of any manors, lands, &c by a feme covert,5 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 and unjust, is a branch of Edition: orig; Page: [386] 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 14696 and 14747 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 ill-founded claims, not to cut off any just debt; and in this view nothing further could be intended than to introduce a presumption against every claim brought after forty Edition: orig; Page: [387] years; reserving to the pursuer to bring positive evidence of its being a subsisting claim, and justly Edition: current; Page: [221] due. Yet the court of session, acting as a court of common law, did in one instance 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:8 it is held, That a bare acknowledgment 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 e-Edition: orig; Page: [388]quity, “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,9 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 Edition: orig; Page: [389] 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.”§

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To the case first mentioned of referring a debt to the defendant’s oath, a maxim in the law of England is obviously applicable, “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 purposed. Coke* illustrates this maxim by the following example. The common law of England suffered goods taken by distress10 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. 16.11 Edition: orig; Page: [390] 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,12 is presumed to know what is done there.

The act 83. parl. 1579,13 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 E-Edition: orig; Page: [391]dinburgh apothecary, the court repelled the defence of the triennial prescription, and decreed, That the act of limitation in England, being the Edition: current; Page: [223] locus contractus,14 must be the rule.”* There is here another error beside that above mentioned. 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 that prescription, must be able to specify 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 Edition: orig; Page: [392] 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 shop-keeper 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 unjust, to sustain the Scotch triennial prescription as a bar to the action; in which 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.

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 will15 only.” In the construction of this statute the following point was resolved, That if there Edition: orig; Page: [393] be a parole-agreement for Edition: current; Page: [224] the purchase of land, and that in a bill brought for a specific performance, the substance of the agreement be set forth in the bill, and confessed in the answer, the court will decree a specific performance; 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. There are accordingly many instances in the English law-books, where a parole-agreement intended to be put into writing, but prevented by fraud, has been decreed in equity, notwithstanding the statute of 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. Edition: orig; Page: [394]

Statutory irritancies in an entail are handled book 1. part 1. chap. 4. sect. 1. art. 3.

Whether can a statutory penalty be mitigated by a court of equity? See below, chap. 8.

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

With respect to this subject, 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 such cases, it is the duty of a court of equity, to interpose and to relieve from the oppression. To trust this power with some Edition: orig; Page: [395] court, is evidently a matter of necessity; Edition: current; Page: [225] for otherwise wrong would be authorised without remedy. Such oppression appears in different shapes and in different circumstances, which I shall endeavour to arrange properly; beginning with the oppression a creditor may commit under protection of common law, and then proceeding to what may be committed by a debtor.

SECTION 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, a decree issues against him, to be followed with execution. Now this is rigorous, or rather unjust. For, with respect to the plaintiff, unless he mean to oppress, he cannot wish better payment Edition: orig; Page: [396] 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 execution for failing to pay a debt, when possibly the only means he has for payment is that very sum 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 furnishes a good defence against payment. 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 Edition: orig; Page: [397] thought necessary, because at that period the court of session Edition: current; Page: [226] was probably not understood to be a court of equity.* But perhaps there was a further view, namely, 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, however, the foregoing statute, the powers of a court of equity are more extensive, than of 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 been considered as a court of common law, and not as a court of equity; a misapprehension the less excusable, considering the subject of Edition: orig; Page: [398] 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 in the original process only, by way of exception, and gives no authority to plead it whether in the reduction or suspension1 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 the omitting or forbearing to plead compensation in the original process is not a good objection against the decree. 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 decree purely in absence ought not to bar compensation; because it is 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 Edition: orig; Page: [399] was not contumacious, ought to be at Edition: current; Page: [227] 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 foro2 is suspended for any good reason, compensation may be received in discussing the suspension;3 for the statute goes no farther but 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 error 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. The first case that presents itself, is, where one only Edition: orig; Page: [400] 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 account be instituted as at the time of the concourse,4 as if from that period interest were no longer due? Equity evidently concludes for the latter; for it considers, that each had the 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 concurred. But as it would be unjust to make a debtor pay interest for money he must retain in his hand ready to answer a demand, therefore in such a case compensation is excluded.5 Example. A Edition: current; Page: [228] tacksman6 lends a considerable sum to his landlord, agreeing in the bond to suspend the payment during the currency of the tack, but Edition: orig; Page: [401] 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, as 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 pleading 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: 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 Edition: orig; Page: [402] is uncertain as to its extent. But what if the pursuer be bankrupt, or be vergens ad inopiam?7 The common law authorises a bankrupt to insist for payment equally with a person solvent: but it is not just 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 when it shall become due; and this is the constant practice of the court of session.

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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 Edition: orig; Page: [403] 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 rule, That both sums should bear interest, or neither. Therefore, to give opportunity for applying that rule, 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, let it be understood, that an assignment intimated is, in our present practice, a proper cessio in jure,8 transferring 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 cir-Edition: orig; Page: [404]cumstance subjects him not to the counterclaim; 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 Edition: current; Page: [230] 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, the debtor ought not to suffer; and the proper reparation is to oblige him to pay interest ex aequitate,9 though the claim at common law bears none.

But if the debt assigned be that which bears not interest, a total separation is Edition: orig; Page: [405] thereby made between the two debts. 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 appears erroneous. To complete the subject, I must take a survey of that practice. 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;10 which did not transfer the jus crediti11 to the assignee, but only intitled him procuratoria nomine12 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 is right; because the pleading compensation against Edition: orig; Page: [406] a procurator, is in effect 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 such an assignee; being made to support compensation against Edition: current; Page: [231] the rigour of common law; but to support it only as far as just. It could not therefore 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, af-Edition: orig; Page: [407]ter an assignment is intimated, compensation is barred from the very nature of the assignee’s right, even laying aside the objection upon the head of equity. But we began 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, though now the title of an assignee protects him from compensation, as well as the nature of his right when he pays value for it.

SECTION II: Injustice of common law with respect to indefinite 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 Edition: orig; Page: [408] 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 give a discharge.

But now supposing a sum to be delivered by the debtor to the creditor as payment, but without applying it to any one debt in particular, termed indefinite payment, 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 Edition: current; Page: [232] 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;1 a rule founded on the principles of common law. The sum delivered to the creditor is in his hand for behoof of the debtor, and therefore it belongs to the debtor to make the application. But though this is the rule of common law, it is not the rule of justice: if the debtor make an undue Edition: orig; Page: [409] application, equity will interpose to relieve the creditor from the hardship. A debtor, it is true, delivering a sum to his creditor, may direct the application of it as he thinks proper: he may deliver it as payment 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 in the hand of the creditor indefinitely, the debtor has no longer the same arbitrary power of making the application: equity interposing, 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 of use. 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 Edition: orig; Page: [410] 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 enforced 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 is, that where a cautioner accedes to a bond of borrowed money, 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 Edition: current; Page: [233] the transaction. The case is different where the cautioner shows a willingness to continue his credit.

Entering now into particulars, 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 Edition: orig; Page: [411] 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 candour 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 for a presumption: his authority for making the application is derived from a principle of justice. The same principle directs, that where both debts bear interest, the indefinite payment ought first to be applied for extinguishing what is due of interest; and next 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 is secured by infeftment or inhibition. It is equal to the debtor which of the debts be first paid: Edition: orig; Page: [412] 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:2 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.

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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 ap-Edition: orig; Page: [413]plied 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 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 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. Edition: orig; Page: [414]

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 Edition: current; Page: [235] the difficulty of procuring money for that purpose, is an event Edition: orig; Page: [415] too distant and too uncertain to be regarded in forming a rule of equity.

Sixth case. Neither of the debts bear interest; and one of them is guarded by a penal irritancy, feu-duties for example, due 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.3

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 Edition: orig; Page: [416] 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.

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 for 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 Edition: orig; Page: [417] make the transaction effectual, or to Edition: current; Page: [236] 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 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. Edition: orig; Page: [418]

SECTION 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 levied by execution, upon an adjudication for example, must for the same reason be applied to the debt upon which the execution 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 of the same land, it is undoubt-Edition: orig; Page: [419]edly the debtor’s interest that the rents be applied to the adjudication, in order to prevent expiry of the legal, not to the wadset which contains no irritancy nor forfeiture upon failure of payment. But 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 Edition: current; Page: [237] 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 candour 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 candour 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; Edition: orig; Page: [420] and it is lucky that this can be done by 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 rigour of common law, ought not to be confined to real debts that 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 that is the title of possession. What if the personal debt be a bulky sum, 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, and consider-Edition: orig; Page: [421]ing matters in the view of material justice, reasons after the following manner. A personal creditor has not access to the rents of his debtor’s land till he lead an adjudication. 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 with expence. And thus where the question is with the debtor only, equity relieves the creditor in possession from the ceremony of leading an Edition: current; Page: [238] adjudication upon his separate debt: and no person can hesitate about the equity of a rule, that is no 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 Edition: orig; Page: [422] 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 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 accommoda-Edition: orig; Page: [423]ted 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 extremely easy. Let me only premise what is hinted above, 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 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 Edition: current; Page: [239] second rule is, That, in pari casu,4 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 ex-Edition: orig; Page: [424]piring, 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 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 that 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.5

Hitherto I have had nothing in view but the possession of a single fund, and the rules for applying the rent of that fund Edition: orig; Page: [425] where 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: 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 Edition: current; Page: [240] evitando, and the substitutes de lucro captando. And this coincides with the second case stated in the foregoing section of indefinite payment. Edition: orig; Page: [426]

CHAPTER VII: Powers of a court of equity to remedy what is imperfect in common law with respect to a process.

Under the shelter of common law, many act imprudently, many indecently, and not a few act against conscience and moral honesty. The two first are repressed by censure, public and private: the last, a more serious matter, is repressed by a court of equity; which will not sustain either a claim or a defence against conscience, however well founded it may be at common law. The party will be repelled personali objectione1 from insisting on his claim or defence. This personal objection is with respect to the pursuer the same with what is termed exceptio doli2 in the Roman law. I proceed to examples; and first of the personal objection against a claimant. An informal relaxation3 of a Edition: orig; Page: [427] debtor denounced rebel on a horning,4 is no relaxation; and therefore will not prevent single escheat.5 But the creditor on whose horning the escheat had fallen, craving preference on the escheated goods; it was objected, That he had consented to the relaxation, which removed the informality as to him; and that equity will not suffer him to act against his own deed. The court accordingly excluded him personali objectione from quarrelling the Edition: current; Page: [241] relaxation.* In a competition between two annualrenters, the first of whom was bound to the other as cautioner; it was objected to the first claiming preference, That it was against conscience for him to use his preferable infeftment against 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. The preferable Edition: orig; Page: [428] annualrenter ought to have been barred personali objectione from obstructing execution for payment of a debt, which he himself was bound to pay as cautioner. In the Roman law, he would have been barred by the exceptio doli.

Next as to personal objections of this kind against defendants. A cautioner for a curator being sued for a sum levied by the curator, the cautioner objected, That the person for whom he stands bound as cautioner could not be curator, as there is a prior act of curatory standing unreduced. An endeavour to break loose from a fair engagement being against conscience, the cautioner was repelled personali objectione from insisting in his objection.,6 A verbal promise to dispone lands is not made effectual in equity; because a court of equity has no power to overturn common law, which indulges repentance till writ be interposed. But a disponee to land insisting upon performance, the disponer objected a nullity in the disposition. He was barred personali objectione from Edition: orig; Page: [429] pleading the objection, because he had verbally agreed to ratify the disposition.§,7

Edition: current; Page: [242]

There is one case in which the personal objection cannot be listened to, and that is, where an objection is made to the pursuer’s title. The reason is, that it is pars judicis8 to advert to the pursuer’s title, and never to sustain process upon an insufficient title, whether objected to or not. Thus, against a poinding of the ground, which requires an infeftment, it being objected, That the pursuer was not infeft, it was answered, That the defendant, who is superior, has been charged by the pursuer to infeft him; and that the defendant ought to be barred personali objectione from pleading an objection arising from his own fault. The court judged, That it is their duty to refuse action, unless upon a good title; and that no personal objection against a defendant can supply the want of a title.*

end of the first volume
Edition: current; Page: [243]

Principles of Equity, Vol. II

principles

of

equity.

the third edition.

in two volumes.

vol. ii.

edinburgh:

Printed for J. Bell, and W. Creech, Edinburgh;

and T. Cadell, London.

mdcclxxviii.

Edition: current; Page: [244] Edition: current; Page: [245]

BOOK I: Powers of a Court of Equity derived from the Principles of Justice.

Part I: Powers of a court of equity to remedy the imperfections of common law with respect to pecuniary interest.

CHAPTER VIII: Powers of a court of equity to remedy what is imperfect in common law with respect to legal execution.

This chapter splits naturally into two sections. First, Where the common law is defective. Second, Where it is oppressive or unjust. Edition: orig; Page: [2]

SECTION 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 Edition: current; Page: [246] which 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.1 But experience discovered many profitable subjects 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, namely, That where-Edition: orig; Page: [3]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. 3d, These executions are in some cases imperfect. 4th, They serve only to make debts effectual, and give no aid to other claims.

ARTICLE 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,2 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 Edition: current; Page: [247] of an apprising by the act 1672,3 which by the act Edition: orig; Page: [4] 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 reduction on the head of deathbed4 is an example of the same kind. There are many others. If a man fail to purge an irritancy, the common law admits 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 supplies 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 Edition: orig; Page: [5] done them justice, by making a conveyance in their favour.

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

I give the following instances. First, The apprisings of common law reach no land but where the debtor is infeft. The apprising a minute of sale of land and a disposition without infeftment, was introduced by the sovereign court.

Second, John is creditor to James, and James to William. To convey the last-mentioned debt to John, common law requires an arrestment and process of forthcoming. But what if before John proceed to execution, William die, and no person is found to represent him? In this case there is no place for an arrestment; and yet John ought not to be disappointed of Edition: current; Page: [248] his payment. The court of session must supply the defect, by adjudging to John the debt due by William to James.

Third, Execution for payment of debt supposes a mora5 on the debtor’s part; and Edition: orig; Page: [6] a judge 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 no less 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 in-Edition: orig; Page: [7]deed, that a process of mails and duties6 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 thrash 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 Edition: current; Page: [249] of common law or of equity, will not readily sustain the process before Candlemas.

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 Edition: orig; Page: [8] holds in a process for poinding the ground,7 if it be necessary to complete a base infeftment8 by making it public.

There is one general exception to the foregoing rule, That if a debtor be vergens ad inopiam,9 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 plaintiff £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 Edition: orig; Page: [9] 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 Edition: current; Page: [250] 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, A process at common law reacheth no man but within the 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 judgment. This defect, Edition: orig; Page: [10] which interrupts the course of justice, is in Scotland remedied by a citation at the market-cross of Edinburgh, pier and shore of Leith, introduced by the sovereign court, acting upon the foregoing principle, That where 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 corpus10 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, Edition: orig; Page: [11] in order to convert them into money for payment to the creditor who applies for the attachment. And as the foreigner cannot be cited to appear in the court of session, notice will be appointed to be given him, that he may appear if he think proper. 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.

Edition: current; Page: [251]

ARTICLE 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, that of operating payment. I give for example the English writ Elegit,1 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 cre-Edition: orig; Page: [12]ditor must be satisfied with the possession; and hath no means at 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.

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

Beside for payment of debt, execution sometimes is necessary for making other claims effectual; and here also the common law is imperfect. To remedy this imperfection, adjudications in implement,1 declaratory adjudications,2 &c. were in Scotland invented by the sovereign court. The following case shows 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 Edition: orig; Page: [13] Andrew Drummond,” Edition: current; Page: [252] 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. 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 Edition: orig; Page: [14] 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, namely, the representatives of John Gordon and of Sir Robert, and concluding, that the adjudication thus left in medio3 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 fugae4 in order to avoid payment of their debts; but a court 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, upon the naked complaint of the creditor. He is bound first to give e-Edition: orig; Page: [15]vidence of his debt: he is bound next to explain the reasons of his suspicion; and if these be found groundless, or no sufficient Edition: current; Page: [253] cause of suspicion, the warrant will be refused: he is bound to give his oath of credulity, that he verily believes his debtor to be in meditatione fugae. And in the last place, he is bound to give security for damages in case of wrongous detention.* 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 alleged by him to justify his suspicion of a meditatio fugae.

SECTION 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. Edition: orig; Page: [16] 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 appears, that the judge ought not to authorise execution against any subject which the debtor himself is not bound to surrender to his creditors. But a court of common law, confined by general rules, regards no circumstance but one singly, Whether the subject belong to the debtor: if it be his property, execution issues; and it is not considered whether it would be just in the debtor to apply this subject for payment of his debts. 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 a court of law ought not to interpose in behalf of the creditors, but in behalf of the person injured. A court of Edition: orig; Page: [17] equity accordingly, correcting the injustice of common law, will refuse its aid to the creditors; who ought not to 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.

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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 cheat mentioned, was sustained against the bankrupt’s creditors arresting the subject purchased in the hands of the person to whom Edition: orig; Page: [18] 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 the purchaser’s creditor commences his adjudication, the vender will be admitted for his Edition: orig; Page: [19] interest, and the following objection will be sustained in equity, “That the land ought not to be adjudged to the creditor, but restored to him the vender, to repair the wrong done him.” I put Edition: current; Page: [255] 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 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 factor1 having sold his constituent’s2 goods, took the obligation for the price in his own name, without mention-Edition: orig; Page: [20]ing 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,3 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, na-Edition: orig; Page: [21]med executor in Sir James Rochead’s testament, appointed a factor to act for him. At clearing accounts there was a balance of £268 Sterling in the hands of the Edition: current; Page: [256] 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 a new bond from a debtor of the deceased with a cautioner, and discharge the original bond, this new bond, being a surrogatum4 in place of the former, will be considered in equity as part of the effects of the deceased: and will not be af-Edition: orig; Page: [22]fectable 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 Edition: orig; Page: [23] from being decisive in point of equity. It ought to have been 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 Edition: current; Page: [257] 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. It ought to have been considered further, that Makelwood having laid out Boylstoun’s money in purchasing the cloth, was bound in justice to deliver the cloth 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 Edition: orig; Page: [24] 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 that case? In answer to this question, it holds in general without a single exception, That a bona fide 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 Edition: orig; Page: [25] 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 competentiae5 against their children, and a Edition: current; Page: [258] patron against his client;* a man against his wife; and the same obtains in an actio pro socio.6, 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 rigour 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 cases.

The other rule is more general, and still more safe in the application. Personal exe-Edition: orig; Page: [26]cution 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,7 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 no 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 torture of personal restraint, recovers his liberty, upon conveying to his creditors all his effects. And in Scotland this action was known as far back as we have any written law.

APPENDIX TO CHAPTER VIII

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 Edition: orig; Page: [27] the same time it is admitted, that where the pluris Edition: current; Page: [259] petitio1 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 that, in order to ob-Edition: orig; Page: [28]tain preference, he may lawfully avail himself of an error committed by a co-creditor; and consequently, that to support a void adjudication against him, is not agreeable to any rule of equity. In the next place, an adjudication ex facie2 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,3 or where 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 founda-Edition: orig; Page: [29]tion in equity. The question then is, To which class this objection belongs?

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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.4 If a man voluntarily give off land to his creditor for satisfaction of £1000, understood at the time to be due, though the debt be really but £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 quondam5 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 Edition: orig; Page: [30] 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 £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 £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:6 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 another purchaser. With regard to all legal effects, he is held the purchaser, and is in reality so; and if it shall be found that the execution has proceeded for a greater sum than was really due, this circumstance will found a Edition: orig; Page: [31] personal action to the quondam debtor, but by no means a rei vindicatio.7

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But too much is said upon an adjudication considered as a judicial sale; for during the legal at least, it is 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 £1000, when in reality £900 is only due, will this pluris petitio void the infeftment? There is not the least pretext for such a consequence: the sum secured will indeed be restricted, but the security stands 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 ef-Edition: orig; Page: [32]fect than to restrict the sum secured to what is truly due, without impinging upon the security. And this was the opinion of the court given in the case of the creditors of Easterfearn, 6 November 1747, engrossed in Lord Kilkerran’s collection.8 An adjudication was objected to upon a most dishonest pluris petitio. The adjudication however was sustained as a security for the sum truly due. Equity could afford no aid to such an adjudication. What the court went upon was, That at common Edition: current; Page: [262] law a pluris petitio is not sufficient to annul a right in security, but only to restrict it. This is not 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 re-Edition: orig; Page: [33]strict 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 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 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 Edition: orig; Page: [34] not far enough. Take the following remarkable instance. Among the creditors of the York-buildings 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 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 stead, 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:9 “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 Edition: orig; Page: [35] company.” This was stretching equity beyond all bounds; and in effect judging that a creditor is barred by equity Edition: current; Page: [263] from taking advantage of any error committed by a co-creditor. Upon a reclaiming petition10 the interlocutor was altered, and the Duke of Norfolk preferred.* And this judgment was affirmed in the House of Lords.

CHAPTER IX: Power of a court of equity to inflict punishment, and to mitigate it.

It is an inviolable rule of justice as well as of expediency, That no man be allowed 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 Edition: orig; Page: [36] 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 forfeits the gain, but sometimes inflicts a penalty over and above. I begin with cases of the first kind.

A man having two estates, settles them upon John and James, his two sons. John discovering accidentally a defect in his father’s titles to the estate settled on James, 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,1 and bar him from taking any benefit from this immoral act, by limiting his claim to the sum laid out upon the purchase.

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If a gratuitous disposition be granted Edition: orig; Page: [37] 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,2 will be removed personali objectione,3 or exceptione doli4 in the language of the Roman law, if he have been guilty of in-Edition: orig; Page: [38]gratitude 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 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 fisco vindicari quasi indigno oblatum. Sed ei demum aufertur quod testamento datum est, qui usque ad sententiam, lite improba, persevera-verit: Edition: current; Page: [265] caeterum, si ante sententiam destitit vel decessit, non ei aufertur quod datum est.”*

When a man is thus forfeited of a good claim, the question is, What becomes of Edition: orig; Page: [39] the subject claimed; whether doth it accrue to the fisk5 as bona vacantia,6 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. Nor can the legacy 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, 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 Edition: orig; Page: [40] should have some compensation as a solatium7 for that distress of mind he must feel, when Edition: current; Page: [266] treated ill by those who owed gratitude to his father or ancestor. In our law accordingly, the heir is relieved from the legacy.8

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,9 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;10 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,11 which consists in aliening to different persons the same subject, is a crime punishable by statute.*,12 I sell my land to John by a minute of sale. I sell it a second time to James, who is first infeft. If James was ignorant of my bargain with John, his purchase will stand Edition: orig; Page: [41] good in equity as well as at common law; because he made a lawful purchase, and had no intention to hurt John. But what shall be the consequence, supposing James when he made his purchase to have been in the knowledge of my bargain with John? It will make no difference at common law, which only considers that James is preferable by his first infeftment, and that John is not more hurt than if his bargain had been unknown to James. But it was a tortious act in James to receive from me what I could not lawfully give; and he is punished for the 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 Edition: current; Page: [267] 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,13 it was decreed, that the first purchaser was preferable.* A, Edition: orig; Page: [42] 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 Edition: orig; Page: [43]

Next of conveying a subject attached by inchoated14 execution. The conveying 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. Thus the porteur15 of a bill of exchange, Edition: current; Page: [268] having indorsed the same for ready money after it was attached by an arrestment laid in the hands of the acceptor, the arrestor was preferred before the indorsee, for the reason above mentioned, that the latter, when he took the indorsation was in the knowledge of the arrestment.* This lays open the foundation of a proposition established in practice, That inchoated execution renders the subject litigious.16 After an adjudication, for example, is commenced, it is Edition: orig; Page: [44] 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 first 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 is afforded to 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 purcha-Edition: orig; Page: [45]ser, ignorant of the other, obtains Edition: current; Page: [269] 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 be 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 secure by equity, be-Edition: orig; Page: [46]cause, 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,17 or suffering a recovery.18 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 spoken of it, his brother, by a recovery, might have cut off the remainder, and barred him. B, after the brother’s death, recovered an ejectment19 against the widow by force of the Edition: current; Page: [270] 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 them of the entail. And his wilful transgression of this duty was a moral wrong, which justly de-Edition: orig; Page: [47]prived 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 Edition: orig; Page: [48] connection but that of predecessor and successor?

In the foregoing instances, the ill-doer is deprived of the gain he made: in what follow, a punishment is inflicted upon him. 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 defence upon it. Which in effect was forfeiting him of his lease as a punishment for his perjury. A man, by adding a seal to a note, which Edition: current; Page: [271] 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 superinduction of pounds for merks, was not sustained for the original sum, but was found null in totum. It is not clear what Edition: orig; Page: [49] was the ratio decidendi;20 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 no? They could not have refused upon any footing but per modum poenae.21 The court of session denied action upon a bond that was purposely antedated in order to save it from an§ inhibition.a Edition: orig; Page: [50]

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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 vote obtained by bribery; for the candidate who is guilty of bribery will not be permitted to be-Edition: orig; Page: [51]nefit 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,22 even though a divorce had followed.* Upon this account the act 13° Edward I. cap. 34.23 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 coercion 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 kirk-session24 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, Edition: orig; Page: [52] 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 Edition: current; Page: [273] 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 statutory penalty cannot be extended beyond the words; but it may be limited within the words, upon circumstances that infer innocence. Captain Forbes, who had no 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 an-Edition: orig; Page: [53]nexed estate of Cromarty.” A complaint being exhibited against him for acting as commissioner of supply without having the qualification of £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 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 Edition: orig; Page: [54] 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 its 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?

Upon the same ground, a conventional penalty is equally subject to Edition: current; Page: [274] mitigation. But in that case, it is sometimes difficult to say, what is to be held a penalty, what not. Take the following instance. A proprietor lets a farm, two thirds to be in grass; but with liberty to the tenant to add to the corn part upon paying five shillings for each acre taken from grass. This paction has nothing penal in it. But what if, instead of five shillings, £50 be stipulated? This cannot be called properly an oppressive bargain, because the tenant may keep free of it. Nor can it be oppressive in the landlord to afford his tenant an option, however unequal. But now suppose an express prohibition against adding to the corn part, and stipulating a penalty of £50 each acre in case of contravention. Edition: orig; Page: [55] This penalty would undoubtedly be mitigated by the court of session; and yet the two cases mentioned are fundamentally the same, differing in the form of words only.

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 complete. But time unfolded many interesting articles that are not pecuniary. Edition: orig; Page: [56] Some of them, making a figure, are distributed among different 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 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 Edition: current; Page: [275] 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 Edition: orig; Page: [57] determining the point in controversy. Take the following example. 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, namely, 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.

Two branches of law come under this part of the work, so extensive as to require different chapters. In the first is treated, how far a covenant or promise in favour of an absent person, is effectual. In the other, immoral acts that are not pecuniary. Edition: orig; Page: [58]

CHAPTER I: How far a covenant or promise in favour of an absent person, is effectual.

I am aware that the interest which arises to the absent from a promise or covenant, being commonly pecuniary, ought in strict form to have been handled above. But the interest of the person who obtains the obligation for behoof of the absent, is not pecuniary; and the connection of these different interests, arising from the same promise or covenant, makes it necessary that they should be handled together. Promise or Covenant in Favour of Absent Person

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 an act of the will,1 expressed externally by words or by signs. And they are Edition: current; Page: [276] binding by the very constitution of our nature, the moral sense dic-Edition: orig; Page: [59]tating 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 those for whose benefit the contract is made, however ignorant of the favour intended them. If John exact from me a promise to pay £100 to James, I stand bound in conscience to perform my promise. It is true, that the promise being made to John, 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 John’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 £100 to James. Edition: orig; Page: [60]

The binding quality of a promise goes still farther. If I promise John 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 would leave this world discontented, if he could not rely upon the promises made to him of fulfilling his will after his death. And though my friend dies without an 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 unless there be 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. Edition: orig; Page: [61]

Such are the binding qualities of a promise, and of a covenant, by the Edition: current; Page: [277] 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; 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 Edition: orig; Page: [62] 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 noted Roman law maxim, Quod alii per alium non acquiritur obligatio.2

But by confining the actions upon a covenant within so narrow bounds, many moral rights and obligations are left unsupported by 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? No person of feeling can answer with confidence in the nega-Edition: orig; Page: [63]tive. Intricate questions of this kind lead to Edition: current; Page: [278] 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 if 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 for life, the obligor cannot be bound to pay to my friend, while it remains un-Edition: orig; Page: [64]certain whether it may not be my will to discharge the obligation.*,3

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 recal the money. If delivery be delay’d, he will not naturally think of any remedy other than of making his complaint to me. Yet the court of session taught a very different doctrine in the following case. 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 it was pleaded for the vender, That the pursuer not being a party to the minute of sale, no right could arise Edition: orig; Page: [65] to him from it, and that the vender’s mandate or order might be recalled by him at his Edition: current; Page: [279] 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 power to his eldest son and the heirs-male of his body to redeem; did afterward limit the power of redemption, that it should not be exercised 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,4 which could not be taken from him. The discharge was sustained.,5 Sir Donald Baine of Tulloch dis-Edition: orig; Page: [66]poned his estate to his eldest son John; and took from him bonds of provision in name of his younger children. It was found, that as these bonds were never 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.6

To return to the case figured of a promise exacted by me in favour of an absent person. My death makes 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, 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 John give a sum to James, for which James promises to John that he will build a house to William, James cannot both retain the money and refuse performance. The same must follow though the paction be gratuitous; for James is in Edition: orig; Page: [67] Edition: current; Page: [280] conscience bound to perform his promise; and William 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.7 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 heir was early made effectual, by sustaining an action to the heir. By that law, a son might stipulate in favour Edition: orig; Page: [68] 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 actio8 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.|| Where there was a rei interventus,9 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.††

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The foregoing doctrine unfolds the nature of fideicommissary settlements10 among the Romans. Of these settlements Justinian* gives the following history, That they were a contrivance to elude a regulation that rendered certain persons incapable of taking benefit by a testament; that Edition: orig; Page: [69] 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 fiducia- Edition: orig; Page: [70] rius: 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 has beside 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 to the fideicommissary heir.

What is just now said serves to explain the nature of trusts, where a subject Edition: current; Page: [282] 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 cognizance of a court of common law; because the person in whose favour the trust is e-Edition: orig; Page: [71]stablished, not being a party to the agreement, has not at common law an action to oblige the trustee to fulfil 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. To remove this objection, it will be necessary to give an account of the different kinds of legacies well known in the Roman law; and upon setting this subject in its true light, the objection will vanish. In the first place, where a legacy is left of a corpus,11 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 Edition: orig; Page: [72] 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 vindicatio12 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 Edition: current; Page: [283] 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 Edition: orig; Page: [73] 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 fideicommissary 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,13 though fettered with irritant and resolutive clauses, is however vested in the full property 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 fiduciarius, 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 debated in the court of session, namely, Whether an entail, such as that above men-Edition: orig; Page: [74]tioned, after being completed with 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, no 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; Edition: current; Page: [284] and every person is intitled to object to it. But no person, other than the obligee, is intitled to object to the trans-Edition: orig; Page: [75]gression 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 no; and while that continues to be his privilege, the substitutes evidently can have no claim. Nay more, I affirm, that the entailer cannot deprive himself of this privilege, even though he should expressly renounce it in the deed of entail. The substitutes are Edition: orig; Page: [76] 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 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 naturally arises, Why ought not the entailer’s privilege to discharge the fetters of the entail, descend to his heirs. The solid and satisfactory answer is what follows. No right or 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, Alii per alium non acquiritur obligatio, Edition: current; Page: [285] is the fol-Edition: orig; Page: [77]lowing rule, Alii per alium non acquiritur exceptio.14 These rules, 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 liberatorium15 from a pactum obligatorium.16 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 must be effectual to him for whose behoof it is made, whether the person who obtained it be connected with him or no. The difference indeed with respect to the present Edition: orig; Page: [78] point between these pactions, arises not from any 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 that 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, whether the person who obtained the promise be dead or alive. For while the promise Edition: current; Page: [286] subsists, it must bar the creditor from Edition: orig; Page: [79] claiming payment; and must bar every court from supporting such a 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 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 debtor, 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 pay a debt knowingly and take a discharge in name of the debtor, the Edition: orig; Page: [80] 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 tho’ 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, namely, 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, 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 defend himself against the creditor by an exceptio doli, which imports his ratification of the payment, the sustaining this exception hath Edition: orig; Page: [81] two effects: 1st, It operates to him a legal extinction Edition: current; Page: [287] of the debt; and, next, It intitles the third person to demand the sum from him.

CHAPTER II: Powers of a court of equity to repress immoral acts that are not pecuniary.

I have had occasion to mention above, that an attempt to correct all the wrongs that are not pecuniary, would be endless; and in a measure useless, as the method of repressing them all is the same, which is to declare them void. One species of immoral acts deserves peculiar notice, not only as a transgression of duty, but as tending to corrupt our morals.

Individuals in society are linked together by various relations that require a suitable conduct.1 The relations in particular that imply subordination, make the corner-stone of government, and ripen men Edition: orig; Page: [82] gradually for behaving in it with propriety. The reciprocal duties that arise from the relation of parent and child, of preceptor and scholar, of master and servant, of the high and low, of the rich and poor, and such like, accustom men both to rule and to be ruled. It is for that reason extremely material, that the duties arising from subordination be preserved from encroaching on each other: to reverse them, would reverse the order of nature, and tend to unhinge government. To suffer, for example, a young man to assume rule over his father, is to countenance an immoral act and breach of duty; having at the same time a tendency to destroy subordination.

A young man, in his contract of marriage, consented to be put under interdiction2 to his father and father-in-law; and in case of their failure, to the eldest son of the marriage. They having failed, the court refused to sustain an interdiction where the father is interdicted and the son interdictor.* Edition: current; Page: [288] A bond was granted by a man to his wife, bearing, “That by his facility he might be misled to dispose of Edition: orig; Page: [83] a liferent he had by her, and therefore binding himself not to dispone without her consent.” Upon this bond followed an inhibition; which was in effect putting the husband under interdiction to his wife. The court refused to sustain this act; because a married woman, being sub potestate viri,3 cannot be a curator to any person; and to make her a curator to her husband would be to overturn the order of nature.*

Other acts 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 from him a bond in his sister’s name, that he should not permit his mother to set foot in the house. The bond was set aside.,4 Edition: orig; Page: [84]

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BOOK II: Powers of a Court of Equity founded on the principle of Utility

Justice is applied to two particulars, equally capital; one to make right effectual, and one to repress wrong. With respect to the former, utility coincides with justice: with respect to the latter, utility1 goes farther than justice. Wrong must be done before justice can interpose; but utility lays down measures to prevent 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 Edition: orig; Page: [85] 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 Edition: current; Page: [290] 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. Edition: orig; Page: [86]

CHAPTER I: Acts in themselves lawful reprobated in equity as having a tendency to corrupt morals.

Society cannot flourish by pecuniary commerce merely: without benevolence the social state would neither be commodious nor agreeable. Many connections there are 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 such a case, to take a premium for executing any article of the trust, being a breach of 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, Edition: orig; Page: [87] it was the interdictor’s duty to consent to it without a bribe: if a wrong measure, the interdictor’s taking a sum for his consent, was taking a bribe to betray his trust.

Equity goes farther: it prohibits a trustee from making any profit by his management directly or indirectly. An act of this nature may in itself be innocent; but is poisonous with respect to consequences; for if a trustee be permitted, even in the most plausible circumstances, to make profit, he will soon lose sight of his duty, and direct his management chiefly for making profit to himself. It is solely on this foundation that a tutor is barred from purchasing a debt due by his pupil, or a right affecting his estate. The same temptation to fraudulent practice, concludes also against a trustee who has a salary, or is paid for his labour. A pactum de quota litis1 Edition: current; Page: [291] between an advocate and his client, which tends to corrupt the morals of the former, and to make him swerve from his duty, is discountenanced by all civilized nations. A bargain betwixt such persons may be fair, and may even be advantageous to the client: but utility re-Edition: orig; Page: [88]quires that it be prohibited; for if indulged in any circumstances, it must be indulged without reserve. It is for the same reason, that a member of the college of justice is prohibited by statute* from purchasing land that is the subject of a law-suit; and that a factor on a bankrupt-estate is prohibited by an act of sederunt from purchasing the bankrupt’s debts. The same rule is extended against private factors and agents without an act of sederunt. Debts due by a constituent purchased by his factor or agent will be held as purchased for behoof of the constituent; and no claim be sustained but for the transacted sum.2 It was decreed in chancery, That a bond for £500 for procuring a marriage between two persons equal in rank and fortune, is good. But on an appeal to the House of Lords, the decree was reversed. Such a bond to a match-maker, tending to ruin persons of fortune and quality, ought not to be sus-Edition: orig; Page: [89]tained; and the countenancing such bonds would be of evil example to guardians, trustees, servants, who have the care of persons under age.3

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CHAPTER II: Acts and covenants in themselves innocent, prohibited in equity, because of their tendency to disturb society, and to distress its members.

The spirit of mutiny showed 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.1 The same spirit broke 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. Any Edition: orig; Page: [90] of them that deserted their service, entered their names in that list, and were immediately again employed by other masters who wanted hands. The master-tailors suffered many inconveniences 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 masters; 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; a desertion that was the more distressing, as it was made when the preparing cloathing for the army required the utmost dispatch. This occasioned a complaint to the bailies2 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, Edition: orig; Page: [91] 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 Edition: current; Page: [293] 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 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 dig coal, without being subjected to any control, they would be masters of the lives of the inhabitants. To remedy such an evil, Edition: orig; Page: [92] which is of the first magnitude, there must be a power placed somewhere; and 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 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 Edition: orig; Page: [93] 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.*

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When the malt-tax was ordered to be levied in Scotland, the Edinburgh brewers, dissatisfied with the same, entered into a combination to forbear brewing. The court of session, upon the principle above mentioned, ordered them to continue their brewing as formerly under a severe penalty.3

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 pretext 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-fiscal4 of the bailie-court of Aberdeen, Edition: orig; Page: [94] being removed to the court of session by advocation,5 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 such-like 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 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,6 the court adhered to the foregoing interlocutor, as far as it finds the society complained of to be of danger-Edition: orig; Page: [95]ous tendency, and consequently contra bonos Edition: current; Page: [295] mores;7 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, began 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 contrived 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 decreed, That Edition: orig; Page: [96] this society was an unlawful combination, under the false colour of carrying on trade; and that the contract was void, as contra utilitatem publicam.8,

CHAPTER III: Regulations of commerce, and of other public concerns, rectified where wrong.

It belongs to a court of police to regulate commerce and other public matters. The court of session is not a court of police; but it is a court of review, to take under consideration the proceedings of courts of police, and to rectify such as are against the public interest. This jurisdiction is inherent in the court of session as the supreme court in civil matters, founded on the great principle, That every wrong must have a remedy.

In the year 1703 the magistrates and Edition: orig; Page: [97] town-council of Stirling made an act confirming a former act of council in favour of the town weavers, Edition: current; Page: [296] and prohibiting all country weavers from buying woollen or linen yarn brought to the town for sale, except in public market after eleven fore-noon, under the pain of confiscation. This act of council was not a little partial: the weavers in the neighbourhood were confined to the market, while the town weavers were left at liberty to make their purchases at large. The former brought a process before the court of session, insisting to have the market at an earlier hour, in order that they might not be prevented by the latter from purchasing; and also, that the prohibition of purchasing yarn privately should be made general to comprehend the town weavers as well as those of the country. The court not only appointed an earlier hour for the market; but put both parties upon an equal footing, by prohibiting yarn to be purchased before the opening of the market.*

Regulations that encroach on freedom Edition: orig; Page: [98] of commerce, by favouring some to the prejudice of others, is what renders a monopoly odious in the sight of law. However beneficial a monopoly may be to the privileged, it is a wrong done to the rest of the people, by prohibiting them arbitrarily from the exercise of a lawful employment. Monopolies therefore ought to be discountenanced by courts of justice, not excepting those granted by the crown. And I am persuaded, that the monopolies granted by the crown last century, which were not few in number, would have been rejected by our judges, had their salaries been for life, as they now happily are. I venture a bolder step, which is to maintain, that even the parliament itself cannot legally make such a partial distinction among the subjects. My reason is, that admitting the House of Commons to have the powers of a Roman dictator ne quid respublica detrimenti capiat,1 it follows not that such a trust will include a power to do injustice, or to oppress the many for the benefit of a few. How crude must have been our notions of government in the last century, when monopolies granted by the King’s sole authority, were ge-Edition: orig; Page: [99]nerally thought effectual to bind the whole nation! I am acquainted with no monopolies that may be lawfully granted Edition: current; Page: [297] but what are for the public good, such as, to the authors of new books and new machines, limited to a time certain. The profit made in that period is a spur to invention: people are not hurt by such a monopoly, being deprived of no privilege enjoyed by them before the monopoly took place; and after expiry of the time limited, all are benefited without distinction.

In the year 1722 certain regulations were made in the bailie-court 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 procurators2 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 after; beside undergoing a trial by the procurators of court, named by the magistrates for that effect.” John Young, craving to be entered procurator, as having served an apprenticeship to an Edition: orig; Page: [100] agent of character before the court of session, this regulation of the bailie-court of Leith was objected. The bailies having found the petitioner not qualified in terms of the regulations, the cause was advocated;3 and the court found the said article void, as contra utilitatem publicam, by establishing a monopoly.*

CHAPTER 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,1 speaks not of an obligation ad factum praestandum,2 nor of any obligation but for payment of money; and yet it would be hard, that a man should have the authority of a Edition: orig; Page: [101] Edition: current; Page: [298] 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 controversy, 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 good end is attained, by bestowing on the defendant a privilege to with-hold performance from the pursuer, till the pursuer simul et semel3 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 is founded solely on utility, being calculated for no other end but to prevent the multiplication of law-suits. The utility of retention has gained it admittance in all civilized nations. In Edition: orig; Page: [102] 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 withholding 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 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 ha-Edition: orig; Page: [103]ving received any allowance from A for the two sums, prefers his bill against C to have the money returned Edition: current; Page: [299] 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, 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 in order to levy the rents for his payment; and when payment is obtained, he is no 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, im-Edition: orig; Page: [104]power him to detain possession one moment after the debt that was the title of his possession is paid. He must first surrender possession; and he may afterward apply for legal authority to be repossessed 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 force, Frustra petis quod mox es restituturus;4 and this maxim accordingly furnisheth to the creditor in possession a defence that 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, namely, 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 pos-Edition: orig; Page: [105]sess. It may sometimes happen, as demonstrated above, to be more beneficial to the Edition: current; Page: [300] 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 possession till that debt be paid.

CHAPTER V: Bona fides as far as regulated by utility.

My first head shall be bona fide payment. 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 cre-Edition: orig; Page: [106]ditor 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, I proceed to explain.

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 transferable 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 Edition: orig; Page: [107] 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 Edition: current; Page: [301] 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 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 sup-Edition: orig; Page: [108]position, 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,1 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 Edition: orig; Page: [109] 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 Edition: current; Page: [302] 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.

My next head shall be a bona fide transaction with a putative proprietor. Such transactions are void at common law as ultra vires; and were there no remedy in equity, the paying debt to a putative creditor would not be more hazardous, than transactions with a putative proprietor. The remedy with respect to the former is stated above; and the remedy with respect to the latter, far from oppression on either side, must give satisfaction to every rational enquirer. Where a person in posses-Edition: orig; Page: [110]sion of land performs acts of property in the ordinary way of management, levying rents, granting leases, selling corns, cattle, or what else the land produces, no person thinks of enquiring about his title. It would be an insufferable hardship on those who deal with him, and a great obstruction to commerce, were such acts void as ultra vires. But with respect to acts of extraordinary administration, such as selling land, or borrowing money upon real security, it is expected that the possessor should make good his title; without which no prudent person will deal with him. If the title be found infirm, a court of equity can afford no remedy: it cannot interpose on the footing of justice between the proprietor on the one hand and the purchaser on the other, who are equally certantes de damno vitando, nor on the footing of utility, which pleads not for the one more than for the other. The parties must be left to common law, which intitles the proprietor to vindicate his subject, or to be relieved from debt he did not contract. This latter branch is so clearly founded on principles, that probably it has never been drawn into controversy. With respect to Edition: orig; Page: [111] the former, less clear, take the following examples. Count Antonius Lesly, an alien, was served and infeft in the estate of Balquhain as heir of entail; it being at that time understood, that alienage deprives not a man of his birthright in Scotland. But his title being afterward called in question by Peter Lesly-Grant, the next substitute, insisting that an alien cannot acquire land in Scotland either by purchase or succession, the reason of reduction was sustained, first in the court of session, and next in the House of Lords; which rendered the Count’s right void from the beginning. Before his right was challenged, he had sold many trees come to maturity, and received the Edition: current; Page: [303] price. The court, in respect of his bona fides, relieved him from accounting for the price. This at first seemed to be a question of some intricacy; but it was soon found to resolve into an established maxim, Quod bona fide possessor rei alienae facit fructus consumptos suos.2 Trees are the product of land as well as corn or cattle; and it would be no less severe to oblige a putative proprietor to account for the price of full-grown trees than to account for the price of ripe corn. Edition: orig; Page: [112] The following case is far more delicate. The brother of the deceased Missinish, being the nearest heir in existence, was admitted to serve heir to the estate. The right of the brother thus served was but conditional, as there was a possibility of a nearer heir; and the widow of the deceased brought forth a son, which voided the service from the beginning. But the brother served and infeft having sold land for payment of the family-debts, while there was yet little prospect of a nearer heir, the sale was supported by the court of session, upon evidence brought that it was in rem versum3 of the infant-heir.4 The favourableness of this case had, I conjecture, no slight influence in procuring the judgement. It lies open to objections that seem not easily solved. First, What room was there for bona fides while it remained uncertain whether the widow might not be pregnant? and surely the debts could not be so pressing as not to bear the delay of a few months. Next, Had the interest of the debts exceeded the rents of the estate, to make it necessary to dispose of the whole, a sale upon that supposition might be held to be in rem versum of the in-Edition: orig; Page: [113]fant-heir: but it does not appear so clearly that the sale of a part could be in rem versum; because, by exact and frugal management during the minority of the heir, the debts might have been so much reduced as to make it proper to preserve the estate entire.

I close this chapter with the acts and deeds of a putative judge; of which the case of Barbarius Philippus is an illustrious instance.* Having been elected a Roman Praetor, he determined many causes, and transacted every Edition: current; Page: [304] sort of business that belonged to the office. 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 a Roman Praetor. With respect to third parties, however, their bona fides supported all his acts and deeds as if he really had been a Praetor. Edition: orig; Page: [114]

CHAPTER 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 confined to what is properly termed jurisdiction; but, in order to prevent mischief even to a single person, may 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 Edition: orig; Page: [115] form of a process, is an expiscation merely.

By the Roman law, a sale made by a tutor of his pupil’s land-estate with-out authority of a judge, was void ipso jure,1 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 decreto2 is not void, but that it is good if profitable to the infant. And I must approve this decision as agreeable to principles and to 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. Edition: orig; Page: [116]

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CHAPTER 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.

Usury is in itself innocent, but to prevent oppression it is prohibited by statute. Gaming is prohibited by statute; as also Edition: orig; Page: [117] 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 prescription1 ought to be placed. For it has not, like the Roman usucapio,2 the penal effect of forfeiting a proprietor for his negligence, and of transferring his property to another: it is contrived, on the contrary, to secure Edition: current; Page: [306] every man in his land-property, by denying action upon old obsolete claims, which by common law are perpetual. A Edition: orig; Page: [118] 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 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 Edition: orig; Page: [119] 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.

As the foregoing statute was made to secure land from obsolete and unjust claims, the statute 14693 introducing the negative prescription of obligations, was made to secure individuals personally from claims of the same kind. As this statute is preventive of mischief, it may be extended by a court of equity to complete the remedy. It has accordingly been extended to mutual contracts, to decrees in foro contradictorio,4 and to reductions of deeds granted on deathbed.a Edition: orig; Page: [120]

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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 empowered 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, intended 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 Edition: orig; Page: [121] 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. 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, Edition: current; Page: [308] those he deals with are seldom so scrupu-Edition: orig; Page: [122]lous as to enquire 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 valorem5 of the heritage.”6 There can be no doubt, that this statute was intended to procure payment to those who deal bona fide with an heir-apparent. 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? Taking the statute strictly according to the words, the creditors will reap little benefit: if the debts be considerable, no heir will subject himself by completing his titles, when he has full enjoyment of the rents, without that solemnity. For-Edition: orig; Page: [123]merly, the heir-apparent in possession had no interest to forbear the completing his titles: his forbearing must have proceeded from indolence or inattention. But if the remedy intended by the statute reach not an heir-apparent though in possession, a strong motive of interest will make him forbear to complete his titles. In this view, the statute, if confined to the words, is perfectly absurd; for what can be more absurd than to leave it in the power of the heir-apparent to disappoint the creditors of the remedy intended them? It is always in his power, by satisfying himself with a possessory title, to disappoint them: and as by a 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 Edition: current; Page: [309] to be extended, the court of session hath constantly denied action to the creditors of an Edition: orig; Page: [124] heir who dies in apparency, against the next heir in possession, unless he has completed his title to the estate by service or adjudication.

There is another palpable defect in this statute which ought also to be supplied. 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. John purchases an estate, takes a disposition with procuratory7 and precept,8 but dies without being seised. James, his heir-apparent, enters into possession without making up titles, and contracts debt after being in possession three years. After his death, William, 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. Edition: orig; Page: [125] 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.*

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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?9 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 cre-Edition: orig; Page: [126]ditors of the interjected heir-apparent? Would they suffer the purpose of the statute to be so grossly eluded?

A word or two upon statutes contrived to advance the positive good of the society in general, or of individuals in particular, making them locupletiores, as termed in the Roman law. To supply defects in such a statute is beyond the power even of a court of equity. The statute 1661, act 41, obliging me to concur with my neighbour in erecting a march-dike,10 is of that nature. There is no provision in the act for upholding the march-dike after it is made; and the defect cannot be supplied by any court. Upon my neighbour’s requisition I must join with him to build a march-dike; but I am bound no further; and therefore the burden of upholding must rest upon himself. Monopolies or personal privileges cannot be extended by a court of equity;