Page 184 And one of many co-creditors having obtained a judgement against the debtor's relict, finding her liable to pay her husband's debts; the other creditors who shared the benefit were decreed to contribute to the expence †. Yet the court of session, acting as a court of common law, did in one case refuse to sustain action after the forty years, though the debt was offered to be proved by the oath of the defend∣ant *. Tenth case. JAMES THOMSON, in his marriage-contract, provides his estate and conquest to the heirs of the marriage. Page 208 Against this heir-male a pro∣cess was brought by the daughters of Patrick, founded upon the Page 127 Download The Principles Of Equity books, Parkinson's text presents the principles of equity in a clear, comprehensive and contemporary fahion for the use of both practitioners and students. Two heritors having each of them a salmon-fishing in the same part of a river, are in use to exercise their rights alternately. Page 152 This argument goes on the supposition that the disponer knew the subject to be heritable. In both examples, the same cause that destroys the one merchant is profitable to the other: yet no man who in such circumstances makes profit, finds himself bound in conscience to bestow his profit upon repairing the other's loss. Comparing this case with the former, the matter turns out as it fre∣quently doth in point of equity, quod potior est conditio possidentis. Page 146 But this performance is not sufficient to fulfil my purpose: I had a further end in view, which was to breed horses; and unless the horse be fit for that end, my purpose in contracting is frustrated. Principles of Equity, first published in , is considered his most lasting contribution to jurisprudence and is still cited. ", "That in case of the decease of any of the said children, the share of the predeceasing child shall be equally divided among the survivors;", "Cum avus filium, ac nepotem ex altero filio, heredes instituisset, a nepote petiit, ut, "The court judged, That the ladies could not claim their bonds of provi∣sion and likewise the lands as heirs of line; but that they might claim one or other at their option, "upon the view and in contemplation of succeeding to the rest of the estate,", "Si quis indebitam pecuniam, per errorem, jussu mulieris, sponso ejus promisisset, et nuptiae secutae fuissent, ex∣ceptione doli mali uti non potest. And accordingly it is the constant practice of the court to stay the course of interest from the time the two debts concur. The reason given is, That an adjudication, being an indivisible right, cannot subsist in part and fall in part. The doctrine of bona fides will only hold in statutory penalties; for in a crime against the law of nature bona fides will never be supposed. The inconvenient restraint of these formulae was in time broke through, and actiones in factum, or upon the case, were introduced, which were not confined to any formula. And even supposing the clause so expressed as to make failure of payment an ipso facto forfeiture, it will be held by a court of equity, that the means chosen reach inadvertently beyond the ultimate intention of the parties contracters; and a declarator of irritancy will still be necessary, in order to afford an opportunity of purging the irritancy. heir an heritable subject, though he would not burden his executors with the value, supposing them to be a number of younger children. It was a maxim in the Roman law, derived from the nature of property, That a man cannot name an heir to succeed to his heir †. A man may lend his money upon a verbal pac∣tion, but he cannot proceed directly to execution, unless he have a formal bond containing a clause of registration authorising execution. It being against conscience for a man thus to evade performance of his own engagement, the cautioner was repelled personali objectione from pleading the defence ‡. In all our practice we find a strong leaning to cre∣ditors A is willing; but B refuses, judging it to be impracticable, or at least too expen∣sive. This method, however, is seldom or never practicable; because in a hurry the goods at hand must be heaved over: and were it practicable, it would not be for the common interest, to abandon goods of little weight and great value, along with goods of great weight and little value. The disponing a subject thus legally attached is not stellionate, because it comes not under the definition of granting double rights. Page 67 With respect then to a gratuitous deed where the sole motive of granting is erroneous, ju∣stice requires that the granter be relieved from performance. To make the will of the legislature effectual in this case, different means must be employ'd ac∣cording to the nature of the subject. Though the father lived ten years after this transaction, and though I. S. would have lost his money had the heir died during his father's life, yet the heir was relieved against the conveyance †. If the bond to the young woman contain a resolutive condition only, viz. One is prone to approve this judge∣ment; and yet there appear unsurmountable difficulties. The mortgagee being thus in combination with the mortgager to deceive the lender, is accessory to the fraud. A court of equity accordingly, correcting the injustice of common law, will refuse its aid to the creditors; who ought not to Of erroneous payment there are two kinds clear∣ly distinguishable from each other: one where a debt is erroneously supposed to exist that is extinguished, or perhaps never existed; and one where there is really a debt, but the person who pays is not debtor. This in other words is saying as above, That it is not clear the testator intended in all events either the lega∣cy or its value: the subject legated may be considerable; and possibly the testator would not have left it in legacy had he not considered it as making part of his stock. I begin with deeds granted by persons under age, who cannot be supposed mature in judgement. This case, as to the obligation of retribution, is of the same nature with that now mentioned, and depends on the same principle. Such a constitution, indeed, confines courts within too narrow limits with respect to their power of doing good; but then it does not lead them to do any wrong. From the doctrine thus illustrated, it may be established as another rule in equity, That a person honoured in a deed, who counteracts the will of the granter declared in the deed, can take no benefit by it. A debtor has, for example, a well-founded claim for voiding a deed granted by him in his minority greatly to his hurt and lesion: but he is bankrupt, and perversely declines a process, because the benefit must accrue to his creditors: he will neither convey his privilege to them, nor insist on it himself. The proposed definition of equity supports operationali-sation of the right to the highest attainable standard of health as indicated by the health status of the Thus goods stolen are restored to the owner; and a disposition of land procured by fear, or undue influence, is voided, in order that the disponer may be restored to his property. Covenants, intended for the support of so∣ciety, and to connect individuals by mutual good offices, ought not to be stretched to their ruin. An indefinite payment made after insolvency to a cre∣ditor in two debts, the one with, the other without a cautioner, ought to be applied proportionally to both debts, whatever the na∣ture or circumstances of the debts may be: for here the creditor and cautioner being equally certantes de damno evitando, ought to bear the loss equally. the Common Law. In particular, it appeared from the proof, that when in bet∣ter health, she expressed much affection for her brother the pursuer; but that, when the disease was more upon her, she appeared to have some grudge or resentment at him without any cause. When a work is done that prevents loss, the subject is thereby improved and made of greater value. This court however affords a remedy. Compensation accordingly was in old Rome sus∣tained before the Praetor; and in England has long been received in courts of equity. The following is a similar case. Conditions of the first kind are taken strictly, and the sum is not due unless the condition be purified. But a purchaser insisting for per∣formance of a disposition of land granted to him, and the disponer defending himself upon a nullity in the disposition; the court found, That the defendant was barred personali objectione from objecting the nullity, because he had verbally agreed to ratify the disposition ‖. The next case in order, is of two assignees to the same bond, igno∣rant of each other. Invest in youth prevention. For a court of equity, as well as a court of common law, must act by general rules; and here there was no rule for ascertaining either the endurance of the lease or the extent of the duty. In the first place, let us examine whe∣ther an obligation for mutual relief ought to be implied. The river there is broad; but the current, being narrow, passed at that time along the north side of the said bank, the rest of the river being dead water. But here was a rei interventus, a subject in the hands of the fiduciary heir, which, by accepting the testament, he bound himself to settle upon the fideicommissary heir; and he is therefore bound in conscience to settle it accordingly. And this is conform∣able to the rules of equity; for as the profits are rendered uncertain by a criminal act, the consequences of this uncertainty ought to af∣fect the delinquent, and not his party who is innocent. Page 159 Second, A is creditor to B, and B to C. The debt due by C to B is transferred to A by a decree of forthcoming upon an arrestment laid in the hands of C. But what if before A proceed to execution C die, and no person is found who will represent him? But this is only mentioned here to give a general view of the subject: for the powers of a court of equity as directed by utility are the subject of the next book. This is equitable as well as legal where the submission contains mutual claims, it being grossly partial to ascertain the claims of one of the parties, while the other is left to an action. This was acting as a court of common law. The following cases are of the same kind. To import such goods, or to bargain a∣bout their importation, is clearly a contempt of legal authori∣ty; and consequently a moral wrong, which the smuggler's con∣science ought to check him for, and which it will check him for, if he be not already a hardened sinner. The present minister was found not liable for the meliora∣tions of the glebe made by his predecessor **. I add another limitation, which is not peculiar to the maxim un∣der consideration, but arises from the very constitution of a court of equity. It appears then, that equity, so far as concerns the duty of serving others, is not extended beyond pity or compassion. It is undoubtedly the safest course to refuse the aid of the court, unless where the circumstances are so strong as to afford a clear conviction of the hardship of per∣formance. They are impowered to prosecute the same for their own advantage, in the same manner as if the debtor had done them justice by making a conveyance in their favour. By his negligence he is said litem suam facere, and is subjected to the debt. The law, by authorising the husband's possession of the wife's estate, intends no more but to give him the enjoyment of it for life, without waste, con∣fining him to act like a bonus paterfamilias*. Society could not subsist without such prohibition; and happy it is for man as a social being, that the prohibition with respect to both articles makes a branch of his nature. Will it be preferred for the whole sum in the bond, or only for the transacted sum? ", "The court judged, That the pursuers had no action upon the deed 1721 to oblige the defendant to denude of the estate of Inverey. To clear this point we must distinguish as formerly between compul∣sory and prohibitory statutes. Equity therefore relieves not from error, except with relation to deeds purely gratuitous, such as donations, legacies, &c.; nor with relation to these, unless where the sole motive of granting is erroneous. But by confining the actions upon a covenant within so narrow bounds, many moral rights and obligations are left unsupported by municipal law. The court would not permit the creditor to evade the effect of his consent, by insisting upon the informality of the relaxation; and for that reason found him excluded personali ob∣jectione from objecting to the relaxation *. For which reason he was decreed to fulfil the engage∣ment as if the alteration had not been made *. An end writings are sometimes ambiguous or obscure, some∣times too limited and. Due by another, are the great law in this case be gross injustice, there be! He can not be supposed, where the words are clear for the reason given is adopted all... No mu∣tual relief happened to lose the possession language and action binds those have! Within the narrowest bounds matters are yet entire ever dreamed that an of... Debt however unexcep∣tionable now universally have ef∣fects that are not made to them in itself,... 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