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is not bound to abandon a greater proportion than another. This method, however, is seldom or never practicable; because in a hurry the goods at hand must be heaved over and were it practicable, it would not be for the common interest to abandon goods of little weight and great value, along with goods of great weight and little value. Hence it comes to be the common interest, and, without asking questions, the common practice, to abandon goods, the value of which bears no proportion to their weight. This, as being done for the common interest, entitles the proprietors of these goods to a recompence from those for whose service the goods were abandoned. Now, the service done to each proprietor is, instead of his valuable goods, to have others thrown overboard of a meaner quality; and for such service, all the recompence that can be justly claimed, is the value of the goods thrown overboard. Let us suppose with respect to any owner in particular, that regularly he was bound to throw overboard twenty ounces of his goods: all that he is bound to contribute, is the value of twenty ounces of the goods that in place of his own were actually thrown overboard. In a word, this short-hand way of throwing into the sea the least valuable goods, appears to me in the same light, as if the several owners of the more valuable part of the cargo, had each of them purchased a quantity of the mean goods to be thrown into the sea instead of their own.

I must observe, at the same time, that the doctrine of the Roman law appears very uncouth in some of its consequences. Jewels, and I may add bank-bills, are made to contribute to make up the loss, though they contribute not in any degree to the distress;

nor is a single ounce thrown overboard upon their account; nay, the ship itself is made to contribute, though the jactura is made necessary, not by the weight of the ship, but by that of the cargo. On the other hand, passengers are exempted altogether from contributing, for a very whimsical reason, that the value of a free man cannot be estimated in money : and yet passengers frequently make a great part of the load. If they contribute to the necessity of disburdening the ship, for what good reason ought they to be exempted from contributing to make up the loss of the goods thrown into the sea upon their account?

Under this article comes a case that appears to be in apicibus juris. A bond extinguished by payment is assigned for a valuable consideration, and the assignee, ignorant of the payment, obtains payment a second time from the debtor's heir. After several years the error is discovered, but the cedent by this time has become bankrupt. The heir is at common law entitled to demand from the assignee the sum he paid; as twice payment can have no support in law. The assignee paying this sum is barred by the insolvency of the cedent from any relief against him. What does equity rule in this intricate case, where there is a real connection between the parties by their concern in the same subject? A strong circumstance for the assignee is, that the payment he received from the heir bona fide, was to him invincible evidence that he could have no claim against the cedent, He was led into that mistake by the heir's remissness or rather rashness in paying without examining his father's writings, They are equally certantes de damno vitando; and yet the heir's claim at common

But as the assig

law must be sustained, if there be nothing in equity to balance it. The balance in equity is, that the loss ought to rest on the heir, by whose remissness it was occasioned, and not on the assignee, who had it not in his power to prevent it. nee's loss is only the price he paid to the cedent, his equitable defence against the heir can go no further. This principle of equity is acknowledged by the Court of Session, and has been frequently applied. Thus an heir having ignorantly paid a debt to an assignee, and several years after having discovered that his ancestor had paid the debt to the cedent, he insisted in a condictio indebiti. The defendant was assoilzied, because the cedent had become insolvent after the erroneous payment. * In this case it seems to have been overlooked, that the assignee was not entitled to withhold from the heir more than what he himself had paid to the cedent. So far he was certans de damno vitando: to demand more was captare lucrum ex aliena jactura. A creditor, after receiving a partial payment, assigned the whole sum for security of a debt due by him to the assignee, who, having got payment of the whole sum from the debtor, ignorant of the partial payment, was, on discovery of the fact, sued for restitution condictione indebiti. His defence was sustained, That he was not bound to restore what he received in payment of a just debt. † This judgment is founded on a mistake in fact. The debt due to the assignee by the cedent was a just debt: but the sum paid by the debtor to the assignee was

24th July 1723, Duke of Argyle contra Representatives of Lord Halcraig.

+ Stair, 23d Feb. 1681, Earl Mar contra Earl Callender.

not in payment of that debt, but of the debt due by him to the cedent, which was not wholly just, as part had been formerly paid. The debtor, therefore, was well entitled to demand the overplus from the assignee, because a second payment can have no support from law. But probably the cedent had become insolvent after the erroneous payment, which brings this case under the rule of equity handled above.

CHAPTER IV.

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

covenants.

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

Among the various principles that qualify men for society, that by which one man can bind himself to another by an act of will, is eminent. By that act, a new relation arises between them: the person bound is termed obligor, the other obligee. But a man may exert an act of will in favour of another without

binding himself, which is the case of a testament or latter-will: during the testator's life, his will expressed in his testament, differs not from a resolution, as he is bound by neither; but after death it differs widely, for death puts an end to the power of alteration. A testament, therefore, must be effectual by the testator's death, or it never can be effectual.

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

Nature, independent of will, bars absolutely men from harming each other. It binds them positively to afford relief to the distressed as far as they are able. But in no case is a man bound to add to the estate of another, or to make him locupletior, as termed in the Roman law, otherwise than by, voluntary engagement. This distinguishes the obligation of a voluntary engagement from the other duties mentioned. The latter cannot be transgressed without making others suffer in person, in goods, or in reputation: but in relieving from the obligation of a promise or covenant, the person in whose favour it is made is indeed deprived of any benefit from it, but suffers no positive loss or damage: to him it is lucrum cessans only, not damnum datum. Hence it is, that the moral sense is less rigid as to voluntary engagements, than as to duties that arise without con

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