CHAP. I. Acts contra bonos mores repreſſed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAP. V. Bona fide payment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAP. IV. Arreſtment and proceſs of forthcoming.

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

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

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

A judicial order to ſecure a moveable ſubject, whether a perſon or goods, till it be diſpoſed of by legal authority, is ſtyled, an arreſt⯑ment. Perſons accuſed of crimes are arreſted to prevent their flying or abſconding. When the property of moveables is diſputed, they are arreſted in the hands of the poſſeſſor till the property be aſcertain⯑ed. This arreſtment, termed rei ſervandae cauſa, is a ſpecies of ſeque⯑ſtration: it is a ſequeſtration in the hands of the poſſeſſor, inſtead of a ſequeſtration in manibus curiae. It hath its full effect, by ſecuring the controverted ſubject till the property be aſcertained; and when the property is aſcertained, the proprietor takes poſſeſſion via facti, with⯑out neceſſity of a proceſs of forthcoming. A third ſort of arreſtment is preparatory to a proceſs of forthcoming, raiſed by a creditor for drawing his payment out of his debtor's moveable funds; and this ſort only is propoſed to be handled in the preſent chapter.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAP. VI. Powers and Faculties.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is a very different caſe, where it is declared, that a certain num⯑ber of the tutors named, termed a quorum, muſt concur in every act: for if by death or non-acceptance the number be brought ſo low as not to make a quorum, it follows from the declared will of the maker, that the tutors exiſting cannot act; and therefore that the nomina⯑tion is void. It is poſſible indeed, that the death or non-accept⯑ance of ſo many as not to leave a quorum, may have been a caſus incogitatus which the maker would have provided for had he fore⯑ſeen the event. But this is altogether conjectural: and ſuppo⯑ſing it certain, yet here deficit voluntas; and in a deed which derives its obligatory force from will ſolely, without any other cauſe, it is beyond the reach of equity to ſupply the defect of will, which would land in making a will for a man who made none for himſelf. The ſame reaſoning is applicable to a nomination of tutors requiring expreſsly to every act the concurrence of one of them, termed a ſine quo non. And yet in ſeveral inſtances, ſo much has the court of ſeſſion been inflamed with what have been reckon⯑ed equitable conſiderations, that neither the failing of a quorum, nor even of the ſine quo non, were deemed ſufficient to void the nomina⯑tion; for the court conjectured it to be the will of the deceaſed, to truſt any of the perſons named rather than the tutor-in-law ^‡. But this ſtretch of equity was afterward corrected in the following caſe. In a nomination of tutors by a man to his children, his wife was named for one, and was ſo much diſtinguiſhed as to be declared ſine qua non. But ſhe by a ſecond marriage having rendered herſelf in⯑capable of the office, the queſtion occurred, Whether this incident did not void the nomination altogether? And the court declared the no⯑mination void ^‖.

But though with reſpect to a quorum, or a ſine quo non, the defect of will cannot be ſupplied, it is undoubtedly the privilege of a court of equity to ſupply any defect in words, in order to make the will effectual. Of this take the following curious inſtance. A gentleman [339] having named his ſpouſe, his brother, and ſeveral others, to be tu⯑tors and curators to his only child, ‘"appointed, that of thoſe who ſhould accept, and ſurvive, the major part ſhould be a quorum; that his ſpouſe ſhould be ſine qua non; and in caſe of her death or incapacity, his brother; but that by the death or incapacity of ei⯑ther, the tutory and curatory ſhould not be diſſolved, but be con⯑tinued with the other perſons named, as long as any one of them remained alive."’ The only event omitted to be provided for was that which happened, viz. the widow's refuſal to undertake the of⯑fice, which brought on the queſtion before the court of ſeſſion, Whe⯑ther the nomination could notwithſtanding ſubſiſt; or, Whether it was void to make way for the tutor-in-law. The court unanimouſly held it undoubted law, the above mentioned deciſions notwithſtanding, that the failure of any one of a plurality of tutors named jointly un⯑hinges the nomination, and ſtill more the failure of that perſon who is named ſine quo non, or the failure of a quorum: but, in the preſent caſe, that it appeared the intention of the father to continue his no⯑mination as long as any of the perſons named ſhould exiſt; that this is expreſſed in clear terms with reſpect to the death or incapacity of the ſine quibus non; and that the ſame muſt be underſtood his will in the caſe of their non-acceptance, becauſe the caſes are ſo parallel, as that no man could think of making a difference; and conſequently that here there is no defect of will, but of words only, occaſioned by the careleſſneſs or inaccuracy of the writer. The nomination accor⯑dingly was decreed to ſubſiſt ^*.

I proceed to examples of a different kind. A man having left 2500 merks to his children, impowered four friends named to divide the ſame among the children. After the death of one of the four, a divi⯑ſion made by the three ſurvivors was not ſuſtained, and the children accordingly were decreed to have each of them an equal ſhare ^†. Here the four being named in the ſame deed, and to concur in the ſame act, were underſtood to be named jointly; and as there was no cir⯑cumſtance to infer that the granter intended to impower any number leſs than the whole to make the diviſion, there could be no reaſon for varying from the rule of common law.

Helen Cuningham left 4000 merks to her grandchildren, to be employed for their behoof at the ſight of five perſons named, of which number their father and mother were two. This ſum was lent [340] out with the approbation of all, including the father and mother, one of the nominees excepted, who was abroad at the time. The ultimate purpoſe of this ſettlement was evidently to ſecure the grandchildren in the ſum ſettled upon them; and if this was done by lending the money to a perſon of unexceptionable credit at the time, the granter's will and purpoſe was fulfilled. By naming ſo many perſons, he made it eaſy for the executor to get the approbation of a ſufficient number; and it could not be his intention to require rigidly the concur⯑rence of every perſon named. And yet the court, adhering to the words as a court of common law, found that the money was not em⯑ploy'd as it ought to have been, and therefore decreed the executor to be liable ^*.

A reference being made by a man and his ſon to three friends, impowering them to name a ſum to the father when he ſhould be in want, which the ſon ſhould be obliged to pay; and two having con⯑curred in abſence of the third to name the ſum; it was objected by the ſon, that the clauſe importing a joint nomination required the concurrence of the whole. The objection was over-ruled, and the determination of the two referees ſuſtained ^†. The reference to the three friends was the means choſen for aſcertaining the father's claim, but it was certainly not intended to make that claim depend on their life or acceptance. The father had a juſt claim whenever he came to be in want; and ſuppoſing none of the referees had in⯑terpoſed, it was the duty of the court of ſeſſion to make the claim effectual.

CHAP. VII. Of the power which officers of the law have to act ex⯑tra territorium.

A COURT of equity not only varies from common law in order to fulfil the great principles of juſtice and utility, but countenan⯑ces ſuch variations in the conduct of individuals. The preſent chap⯑ter is intended as an illuſtration of this doctrine; for ſeveral ex⯑amples will be given, of ſupporting poſitive infringements of com⯑mon law done even by its own officers.

The legal authority of magiſtrates and officers of the law being [341] territorial, is confined within preciſe limits. In ſtrict reaſoning, no⯑thing can be pronounced with greater certainty, than that an officer of the law acting beyond the bounds of his commiſſion, acts with⯑out authority: and yet in practice we admit ſeveral exceptions from this rule. If goods once apprehended in order to be poinded, be drove out of the ſheriffdom purpoſely to diſappoint the poinding, it is lawful for the officer to follow and complete his poinding, in the ſame manner as if the goods had not been drove away ^*. By the ſtatute 52. Henry III. cap. 15. ‘"No man for any manner of cauſe can take a diſtreſs out of his fee, or in the king's highway:"’ but if the lord coming to diſtrain have the view of the beaſts within his fee, and before he can diſtrain them the tenant chaſes them into the highway, it hath been found, that the lord, notwith⯑ſtanding the ſtatute, may diſtrain them there ^†. With regard to the power of apprehending delinquents, one inſtruction is, That if a delinquent fly without the bounds of a conſtable's charge, the conſtable, being in hot purſuit, may follow and apprehend him ^‡. And, by the ſame rule, a ſtranger committing a riot within a baro⯑ny, may, by the officers of the barony, be purſued and apprehend⯑ed out of the barony ^‖.

Sir Matthew Hale, in his hiſtory of the pleas of the crown ^**, handles this matter with care, and traces it through various caſes. ‘"If a warrant or precept to arreſt a felon come to an officer or o⯑ther, if the felon be arreſted, and after arreſt eſcape into another county, yet he may be purſued and taken upon freſh purſuit, and brought before the juſtice of the county where the warrant iſ⯑ſued; for the law adjudged him always in the officer's cuſtody by virtue of the firſt arreſt. But if he eſcape before arreſt into another county, if it be a warrant barely for a miſdemeanour, it ſeems the officer cannot purſue him into another county; becauſe out of the juriſdiction of the juſtice who granted the warrant. But in caſe of felony, affray, or dangerous wounding, the officer may purſue him, and uſe hue and cry upon him into any county. But if he take him in a foreign county, he is to bring him to the gaol or juſtice of that county where he is taken. For he doth not take him pure⯑ly by the warrant of the juſtice, but by the authority that the law gives him; and the juſtice's warrant is a ſufficient cauſe of [342] ſuſpicion and purſuit."’ Here ſeveral caſes are diſtinguiſhed, and different degrees of power indulged to the officer, all of them flatly contradictory to the ſtrict rules of common law: and yet we chear⯑fully acquieſce in the doctrine, becauſe our hearts dictate to us that it is juſt and ſalutary.

Let us examine what will the moſt readily occur in reflecting upon this ſubject. If a felon be once arreſted and in the hands of the officer, a notion of property ariſes, and ſuggeſts a right ſimilar to that of the firſt occupant of land. Though the felon eſcape, the officer, in freſh purſuit, is underſtood to retain a ſort of poſſeſſion animo, intitling him to purſue the felon till he compaſs his aim, viz. a ſecond arreſt. We naturally conclude, that the felon, being in ſome ſenſe the property of the officer, may be ſeized where-ever he can be found; and, by virtue of that quaſi property, may be carried be⯑fore the judge who granted the warrant. This reaſoning will appear ſtill more ſatisfactory when it is applied to the caſe cited above from Balfour, where a poinding is inchoated by apprehenſion of the goods; a circumſtance which undoubtedly produces ſome faint no⯑tion of property in the goods, intitling the poinder to ſeize them where-ever found.

Again, ‘"where a felon eſcapes without being arreſted, if the war⯑rant be barely for a miſdemeanour, it ſeems the officer cannot purſue him into another county. But in caſe of felony, affray, or dangerous wounding, the officer may purſue him into another county."’ Here is a diſtinction made which appears to have a foundation in human nature. As this diſtinction cannot ariſe from the nature of the warrant, which is not more extenſive in the one caſe than in the other, it muſt ariſe from the nature of the delin⯑quency. Felony, or any capital crime, inflames the mind, and creates a ſtrong deſire of puniſhment: the heated imagination is hur⯑ried along, and cannot be reſtrained by the ſlight fetters of ſtrict form. And accordingly, in weighing an abſtract principle againſt the impulſe of an honeſt paſſion, the mind, which feels the prepon⯑derancy of the latter, naturally embraces the following ſentiment, That the officer in this caſe ought not to be confined within the li⯑mits of his commiſſion. In the caſe of a ſlight miſdemeanour, the reſult is different. Strict principles have a ſtronger effect upon the mind than any impulſe that can ariſe from a venial tranſgreſſion; and therefore, in judging of this caſe, the mind naturally reſts up⯑on the limitation of the warrant.

And what is further mentioned in the foregoing quotation, will [343] ſupport theſe reflections. ‘"A delinquent once arreſted, may, upon a ſecond arreſt, be brought from another county to the judge who gave the warrant. But if arreſted for the firſt time in a foreign county, the criminal muſt be carried before the judge of the county where he is taken."’ The diſtinction here made, ariſes from the ſame principles that are above explained. It has already been obſerved, that the notion of a quaſi property ſupplies the want of a ſecond warrant. But an arreſt for the firſt time in a foreign county muſt be governed by a different rule: the mind figuring a hot purſuit of the criminal, eaſily ſurmounts any obſtruction that may ariſe from mere form; but ſo ſoon as the end is gained by ha⯑ving the felon in ſafe cuſtody, the impulſe of paſſion being over, the mind ſubſides; and in this condition, perceiving the defect of power, it takes the firſt opportunity of ſupplying the defect, by an application to the judge of the place ^a.

And with reſpect to the two caſes now mentioned, a remarkable difference is obſervable in the operations of the mind. However ſtrong the impulſe of a paſſion may be when it agitates the mind, yet as ſoon as it ſubſides by gratification, the mind is left free to the government of reaſon. Thus when a felon who was never arreſt⯑ed is purſued into a foreign county, the defect of power is ſcarce perceived during the heat of purſuit: but immediately upon the ar⯑reſt, the defect of power makes an impreſſion; and reaſon demands that the defect be forthwith ſupplied. The mind is differently influ⯑enced in the caſe of an eſcape after arreſt. If once a reſemblance be diſcovered between two objects, there is a natural propenſity to make the reſemblance as complete as poſſible; which in reaſoning produ⯑ces an error extremely common, viz. that of drawing the ſame in⯑ferences as if the reſemblance were altogether complete. Thus by getting poſſeſſion of the body of a felon, a faint notion of property being ſuggeſted, the mind proceeds, without heſitation, to form all its concluſions as if the felon were truly the property of the of⯑ficer.

It is extremely curious to obſerve, how men ſometimes are influen⯑ced by principles and emotions that they themſelves at the time ſcarce attend to; which is remarkable in writers upon law, who, little apt to regard the ſilent operations of the mind, are not ſatiſ⯑fied [344] unleſs for every regulation they can aſſign a reaſon in ſtrict law. This proceeds from ſtudying law too much as an abſtract ſci⯑ence, without conſidering, that all its regulations ought to be founded upon human nature, and be adapted to the various opera⯑tions of the mind. If one of the greateſt lawyers in modern times furniſh this cenſure, few can hope to eſcape. And that the cenſure is juſt, will appear from conſidering the reaſoning of our author, which is by no means ſatisfactory. With regard to the felon who has been once arreſted, he aſſigns the following reaſon for the regu⯑lation, ‘"That the law adjudgeth him always in the officer's cuſtody by virtue of the firſt arreſt."’ But why does the law give this judgment, when it is contrary to the fact? This queſtion ought to have been prevented in accurate reaſoning: inſtead of which we are left in the dark, preciſely where light is the moſt wanted. The true anſwer to this queſtion is given above, viz. that the right of poſſeſ⯑ſion once fairly acquired, cannot be loſt by ſtealth or force, and therefore is retained animo.

Upon the other branch, the reaſoning appears ſtill more lame. The caſe is of a felon apprehended for the firſt time out of the ju⯑riſdiction; upon which our author's reaſoning is, ‘"That the officer doth not act purely by the warrant of the juſtice, but by the au⯑thority which the law gives him; and that the juſtice's warrant is a ſufficient cauſe of ſuſpicion and purſuit."’ This is extremely obſcure, and unſatisfactory ſo far as intelligible. In the firſt place, it is obvious, that the reaſoning, if juſt, is equally applicable what⯑ever be the nature of the crime: the juſtice's warrant is not more a ſufficient cauſe of ſuſpicion and purſuit where the crime is atrocious, than where it is of the ſlighteſt kind. In the next place, ſuppoſing the juſtice's warrant to be a ſufficient cauſe of ſuſpicion, and conſe⯑quently of purſuit, the perſon upon whoſe information the warrant was iſſued has a better cauſe of ſuſpicion, and yet the law impowers not that perſon to apprehend nor to purſue. Neither doth a ſuffi⯑cient cauſe of ſuſpicion give authority to an officer of the law out of the juriſdiction, more than to a private perſon. But let a man having authority to apprehend be figured in hot purſuit of a noted criminal, the mind forthwith interpoſes, and hurries him on till he reach his quarry where-ever found: no ſuch impreſſion is made by the ſlighter tranſgreſſions. And this difference of feeling, is the founda⯑tion of our author's doctrine; a difference that undoubtedly he was ſenſible of, though he has not been ſo lucky as to put it in a clear light.

[345] Thus we have endeavoured to trace out the foundation of ſeveral nice concluſions in law, that depend not on abſtract reaſoning, but on ſentiment. In one of the caſes, an imagined right over the per⯑ſon of a felon arreſted, ſuggeſted by a ſlight reſemblance it hath to property, is in reality the only foundation of our conclu⯑ſion. In the other, what in reality determines us, is the anxiety we have to prevent the felon's eſcape. And whoever examines laws and deciſions with due attention, will find many of them found⯑ed on impreſſions or emotions, ſtill more ſlight than thoſe above mentioned.

To complete the ſubject, nothing further ſeems neceſſary but to obſerve, that the foregoing principles and operations of the mind, are countenanced by courts of juſtice, even ſo far as upon their account to diſpenſe with the cleareſt rules of law. Theſe principles and operations merit regard as virtuous and laudable; but their merit chiefly depends on their utility. By overcoming that ſcru⯑pulous nicety of law, which often is an impediment to the admini⯑ſtration of juſtice, they tend in an eminent degree to the good of ſociety.

CHAP. VIII. Juriſdiction of the court of ſeſſion with reſpect to foreign matters.

THE various ſubjects hitherto treated, falling within the bounds of common law, come of courſe under the equitable juriſdic⯑tion of the court of ſeſſion, ſupplying defects or correcting inju⯑ſtice in common law. Foreign matters, as will by and by be ex⯑plained, fall not within the bounds of common law, and for that reaſon cannot come under the juriſdiction of the ſeſſion, either as a court of common law or as a court of equity. Why then ſhould the preſent ſubject be brought into a treatiſe of equity? Not neceſſarily, I acknowledge. It is, however, ſo intimately connected with matters of equity, that the ſeſſion, acting whether as a court for foreign af⯑fairs or as a court of equity, is governed by the ſame principles, viz. thoſe above laid down. Of theſe accordingly we ſhall ſee many beautiful illuſtrations in handling the preſent ſubject, which, in that view, will make a proper appendix to a treatiſe on equity, if not a ne⯑ceſſary part.

[346] Men, allured by huſbandry, having relinquiſhed the wandering ſtate for a ſettled habitation, were by this revolution brought under new rules of law. The laws of a tribe or clan, governed originally each individual belonging to it, without relation to place ^*. But after na⯑tions became ſtationary, place became the capital circumſtance. Laws were made to regulate all matters at home, that is, within the territo⯑ry of the ſtate; and legiſlators extended not their view to what was done or ſuffered in a foreign country, whether by their own people or by ſtrangers. Thus laws, originally perſonal, became ſtrictly ter⯑ritorial; and hence the eſtabliſhed maxim, That law hath no autho⯑rity extra territorium. This confined notion of law correſponded per⯑fectly well to the manners of early times: mutual fear and diffidence, in days of barbarity, prevented all intercourſe among nations; and individuals, having no temptation to go abroad, ſeldom ventured be⯑yond their own territory. But regular government introduced more ſocial manners; the appetite for riches unfolded itſelf, and individuals were put in motion to ſeek gain where the proſpect was faireſt: in moſt countries accordingly, there are found many foreigners, who have an occaſional reſidence there for the ſake of commerce. This change of manners diſcovered the imperfection of territorial laws: a man, by retiring abroad, is ſecure againſt a proſecution, civil or criminal, for what he has done at home; and by returning home, he is ſecure a⯑gainſt a proſecution for what he has done abroad: common law reach⯑eth no perſon but who is actually within the territory of the ſtate; and reacheth no cauſe of action but what happens within the ſame territory ^†.

The common law of England is ſtrictly territorial in the ſenſe above deſcribed ^‡: nor have we reaſon to believe that the com⯑mon law of Scotland was more extenſive. When therefore the fore⯑going defect came to be diſcovered, it was neceſſary to provide a remedy; and the remedy was, to bring foreign matters under juriſdiction of the King and council; to which originally, as a pa⯑ramount court, all extraordinary matters were appropriated. In Scotland particularly, the act 105. parl. 1487, declares the King and council to be the only court for the actions of ſtrangers of other realms.

With reſpect to foreign matters, the juriſdiction of the King and council in both kingdoms, was diſtinguiſhed from that of the ordi⯑nary [347] courts of law in two particulars. Firſt, The juriſdiction of the latter was territorial with reſpect to cauſes as well as with reſpect to perſons: the juriſdiction of the former was indeed territorial with reſpect to perſons, no perſon in foreign parts being ſubjected to the juriſdiction; but with reſpect to cauſes, it was the oppoſite to ter⯑ritorial, no cauſe but what happened in foreign parts being com⯑petent. Next, the ordinary courts are confined to common law: but with reſpect to foreign matters this law can be no rule, for the reaſon above given, that it regulates nothing extra territorium. The King and council accordingly judging of foreign matters, could not be governed by the common law of any country: the com⯑mon law of Britain regulates not foreign matters; and the law of a foreign country hath no authority here. Whence it follows, that foreign matters muſt be governed by the rules of common ju⯑ſtice, to which all men are ſubjected, or jure gentium, as generally ex⯑preſſed.

This extraordinary juriſdiction concerning foreign matters, confi⯑ned originally in both kingdoms to the ſame court, is now exerciſed very differently in the two kingdoms. In Scotland, it was derived by intermediate ſteps from the King and council to the court of ſeſſion: and accordingly, by the regulations laid down ſoon after the inſtitution of that court, a juriſdiction is beſtow'd upon it as to foreign matters, and the actions of foreigners are privileged ^*. In England, this extraordinary juriſdiction made a different progreſs. The extenſive territories poſſeſſed by the Engliſh Kings in France, and the great reſort of Engliſhmen there, occaſioned numberleſs law⯑ſuits before the King and council. To relieve that court from an oppreſſive load of buſineſs, the conſtable and marſhal court was in⯑ſtituted; and to this new court were appropriated foreign matters, to be tried jure gentium ^†. After the Engliſh conqueſts in France were wreſted from them, this court had very little buſineſs. We find ſcattered inſtances of its acting as a criminal court, down to the reign of Charles II.; but none for centuries before of its acting as a civil court. The court of chancery, with reſpect to its power of ſupplying the defects and mitigating the rigor of common law, had ſucceeded to the King and council; and it would have been a na⯑tural meaſure to transfer to the ſame court the extraordinary juriſ⯑diction under conſideration, the rule of judging being the ſame in [348] both. But the court of chancery being at that time in its infancy, and its privilege as to all extraordinary matters not being clearly un⯑folded, the courts of common law, by an artifice or fiction, aſſumed foreign matters to themſelves. The cauſe of action is feigned to have exiſted in England ^*, and the defendant is not ſuffered to traverſe this allegation. This may be juſtly conſidered as an uſurpation of the courts of common law upon the court of chancery, which, like moſt uſurpations, has occaſioned very irregular conſequences. I ſhall not inſiſt upon the ſtrange irregularity of aſſuming a juriſdiction upon no better foundation than an abſolute falſehood. It is more material to obſerve, that foreign matters ought to be tried june gentium, and yet that the judges who uſurp this juriſdiction have no power to try any cauſe otherwiſe than by the common law of England. What can be expected from ſuch inconſiſtency but injuſtice in every inſtance? Lucky it is for Scotland, that chance, perhaps more than good policy, hath appropriated foreign matters to the court of ſeſſion, where they can be decided on rational principles, without being abſurdly fettered, as in England, by common law.

To form a diſtinct notion of the foregoing extraordinary juriſ⯑diction of the court of ſeſſion with reſpect to foreign matters, it may be proper to ſtate ſuccinctly its different juriſdictions, and to aſcer⯑tain the bounds of each. Conſidered as a court of common law, thoſe actions only belong to it where the cauſe of action did ariſe within Scotland. With regard to perſons, this court was originally limited like the courts of common law in England: it had no au⯑thority over any man but during the time he was locally in Scotland. But in this reſpect the court hath in later times acquired, by pre⯑ſcription, an enlargement of juriſdiction: every Scotchman, even in foreign parts, is ſubjected to the juriſdiction of the court; and, by a citation at the market-croſs of Edinburgh, pier and ſhore of Leith, may be called to defend in any action before the court ^†. In the next place, conſidering this court as a court of equity, impowered to ſupply the defects and mitigate the rigor of common law, its juriſ⯑diction is and muſt be the ſame with what it enjoys as a court of common law. To give it a more extenſive juriſdiction would be uſeleſs; and to confine it within narrower bounds would not fully anſwer the end of its inſtitution, which is to redreſs common law when juſtice demands redreſs. In the laſt place, this court, with re⯑lation [349] to foreign matters, has the ſame juriſdiction over perſons that it has as a court of common law or of equity. And accordingly the court had no difficulty to ſuſtain a proceſs for payment of an ac⯑count contracted at Campvere in Zealand, though the defendant, a Scotch merchant reſiding there, was not in this country any time du⯑ring the ſuit ^*.

The rules that govern the ſeſſion as a court for foreign matters, are the ſame that govern it as a court of equity; for theſe rules are derived from the principles of juſtice. But it muſt not be held that theſe rules are applied preciſely in the ſame manner: as a court of equity, the ſeſſion will not venture to interpoſe againſt common law, unleſs authoriſed by ſome general rule of equity that is applicable to all caſes of the kind; but as to foreign matters, which belong not to common law, every caſe muſt be judged upon its own merits. And therefore the court here is leſs under reſtraint, than in ſupplying the defects of common law, or in correcting its rigor.

Though with reſpect to foreign matters, there is, ſtrictly ſpeak⯑ing, but one rule for judging, viz. equity, or natural juſtice; yet this rule, in its application to different matters, brings out very dif⯑ferent concluſions. And ſhould one undertake to unfold all the va⯑rious caſes to which the rule may be applied, the work would be endleſs. Avoiding therefore this laborious taſk, I propoſe to con⯑fine my ſpeculations to ſome few leading caſes that have been diſ⯑puted in the court of ſeſſion; and theſe, for the ſake of perſpicuity, ſhall be diſtributed into ſeveral claſſes.