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.*

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.

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.

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?

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]

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.

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.

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.

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.

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.*

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.

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.

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.

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.”†

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.

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.

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]

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]

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

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.

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.*

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.”§

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.

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.

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.

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]

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.

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.

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.