"obligation, though it hath taken away the re"medy." This differs widely from the equitable construction of the statute; for if its intendment be to presume such debts paid, they cannot, even in equity, be considered as debts, unless the statutory presumption be removed by contrary evidence. The following case proceeds upon the same misapprehension of the statute:" It hath also been ruled in "equity, that if a man has a debt due to him by "note, or a book-debt, and has made no demand of "it for six years, so that he is barred by the statute "of limitations; yet if the debtor or his executor, "after the six years, puts out an advertisement in "the Gazette, or any other newspaper, that all per"sons who have any debts owing to them may apply to such a place, and that they shall be paid; "this, though general, (and, therefore, might be in"tended of legal subsisting debts only), yet amounts "to such an acknowledgment of that debt which was "barred, as will revive the right, and bring it out of "the statute again.” † .66 To the case first mentioned of referring a debt to the defendant's oath, a maxim in the law of England is obviously applicable, "That a case out of the mis 66 chief, is out of the meaning of the law, though it "be within the letter." A claim of whatever age, referred to the defendant's oath, is plainly out of the mischief intended to be remedied by the foregoing statutes; and, therefore, ought not to be regulated by the words, which in this case go beyond the end purposed. Coke ‡ illustrates this maxim by the fol * Ibid. + Abridg. of the law, vol. 3, p. 518. 2. Instit. 106. lowing example. The common law of England suffered goods taken by distress to be driven where the creditor pleased; which was mischievous, because the tenant, who must give his cattle sustenance, could have no knowledge where they were. This mischief was remedied by statute 3. Edward I, cap. 16, enacting, "That goods taken by distress shall not be car"ried out of the shire where they are taken." Yet, says our author, if the tenantcy be in one county and the manor in another, the lord may drive the distress to his manor, contrary to the words of the statute; for the tenant, by doing of suit and service to the manor, is presumed to know what is done there. The act 83, parl. 1579, introducing a triennial prescription of shop-accounts, &c. is directed to the judges, enacting," That they shall not sustain action af"ter three years," without making any distinction between natives and foreigners. Nor is there reason for making a distinction; because every claimant, native or foreigner, must bring his action for payment in the country where the debtor resides; and for that reason, both equally ought to guard against the prescription of that country. When such is the law of prescription in general, and of the act 1579 in particular, I cannot avoid condemning the following decision. "In a pursuit for an account of drugs, fur"nished from time to time by a London druggist to 66 an Edinburgh apothecary, the court repelled the "defence of the triennial prescription, and decreed, "That the act of limitation in England, being the "locus contractús, must be the rule."* There is here another error beside that above mentioned. The English statute of limitation has no authority with * November 1731, Fulks contra Aikenhead. us, otherwise than as inferring a presumption of payment from the delay of bringing an action within six years; and this presumption cannot arise where the debtor is abroad, either in Scotland or beyond seas. If the prescription of the country where the debtor dwells be the rule which every creditor, foreign or domestic, ought to have in view, it follows necessarily, that a defendant, to take advantage of that prescription, must be able to specify his residence there, during the whole course of the prescription. While the debtor resides in England, for example, or in Holland, the creditor has no reason to be upon his guard against the Scotch triennial prescription: and supposing the action to be brought the next day after the debtor settles in Scotland, it would be absurd that the creditor should be cut out by the triennial prescription. I illustrate this doctrine by a plain case. A shopkeeper in London furnishes goods to a man who has his residence there. The creditor, trusting to the English statute of limitation, reckons himself secure if he bring his action within six years; but is forced to bring his action in Scotland, to which the debtor retires after three years. It would in this case be unjust, to sustain the Scotch triennial prescription as a bar to the action; in which view, the means enacted in the statute 1579 are unwarily too extensive, forbidding action after three years, without limiting the defence to the case where the defendant has been all that time in Scotland. Equity is also applied to mitigate the rigor of statute-law with respect to evidence. By the English statute of frauds and perjuries,* it is enacted, "That "all leases, estates, interests of freehold, or terms of 29. Charles II, cap. 3. * 66 years, made or created by parole, and not put in "writing, shall have the force and effect of leases or estates at will only." In the construction of this statute, the following point was resolved, That if there be a parole agreement for the purchase of land, and that in a bill brought for a specific performance, the substance of the agreement be set forth in the bill, and confessed in the answer, the court will decree a specific performance; because, in this case, there is no danger of perjury, which was the only thing the statute intended to prevent.* Again, whatever evidence may be required by law, yet it would be unjust to suffer any man to take advantage of the defect of evidence, when the defect is occasioned by his own fraud. There are, accordingly, many instances in the English law-books, where a parole agreement, intended to be put into writing, but prevented by fraud, has been decreed in equity, notwithstanding the statute of frauds and perjuries. Thus, upon a marriage-treaty, instructions given by the husband to draw a settlement, are by him privately countermanded: after which he draws in the woman, upon the faith of the settlement, to marry him. The parole agreement will be decreed in equity.† Statutory irritancies in an entail are handled, book 1, part 1, chap. 4, sect. 1, art. 3. Whether can a statutory penalty be mitigated by a court of equity? See below, chap. 8. * Abridg. cases in equity, ch. 4, sect. B, § 3. CHAP. VI. Powers of a court of equity to remedy what is imperfect in common law, with respect to matters between debtor and creditor. WITH respect to this subject, we find daily instances of oppression, sometimes by the creditor, sometimes by the debtor, authorised by one or other general rule of common law, which happens to be unjust when applied to some singular case out of the reason of the rule. In such cases, it is the duty of a court of equity to interpose, and to relieve from the oppression. To trust this power with some court,` is evidently a matter of necessity; for otherwise wrong would be authorised without remedy. Such oppression appears in different shapes, and in different circumstances, which I shall endeavour to arrange properly; beginning with the oppression a creditor may commit under protection of common law, and then proceeding to what may be committed by a debtor. SECT. I. Injustice of common law with respect to compensation. By the common law of this land, when a debtor is sued for payment, it will afford no defence that the plaintiff owes him an equivalent sum. This sum he may demand in a separate action; but, in the meantime, if he make not payment of the sum demanded, a decree issues against him, to be followed with exe R |