fence. This personal objection is, with respect to the pursuer, the same with what is termed exceptio doli in the Roman law. I proceed to examples; and, first, of the personal objection against a claimant. An informal relaxation of a debtor denounced rebel on a horning, is no relaxation; and, therefore, will not prevent single escheat. But the creditor on whose horning the escheat had fallen, craving preference on the escheated goods; it was objected, That he had consented to the relaxation, which removed the informality as to him; and that equity will not suffer him to act against his own deed. The court accordingly excluded him personali objectione from quarrelling the relaxation.* In a competition between two annualrenters, the first of whom was bound to the other as cautioner: it was objected to the first claiming preference, That it was against conscience for him to use his preferable infeftment against a creditor whose debt he was bound to pay. The Court refused to sustain this personal objection; leaving the second annualrenter to insist personally against the first as cautioner. This was acting as a court of common law, not as a court of equity. The preferable annualrenter ought to have been barred personali objectione from obstructing execution for payment of a debt, which he himself was bound to pay as cautioner. In the Roman law, he would have been barred by the exceptio doli. Next as to personal objections of this kind against defendants. A cautioner for a curator being sued for a sum levied by the curator, the cautioner objected, That the person for whom he stands bound as cau * Forbes, Feb. 10, 1710, Wallace contra Creditors of Spot. + Forbes, June 28, 1711, Baird contra Mortimer. tioner could not be curator, as there is a prior act of curatory standing unreduced. An endeavour to break loose from a fair engagement being against conscience, the cautioner was repelled personali objectione from insisting in his objection.* A verbal promise to dispone lands is not made effectual in equity; because a court of equity has no power to overturn common law, which indulges repentance till writ be interposed. But a disponee to land insisting upon performance, the disponer objected a nullity in the disposition. He was barred personali objectione from pleading the objection, because he had verbally agreed to ratify the disposition.† There is one case in which the personal objection cannot be listened to, and that is, where an objection is made to the pursuer's title. The reason is, that it is pars judicis to advert to the pursuer's title, and never to sustain process upon an insufficient title, whether objected to or not. Thus, against a poinding of the ground, which requires an infeftment, it being objected, That the pursuer was not infeft, it was answered, That the defendant, who is superior, has been charged by the pursuer to infeft him; and that the defendant ought to be barred personali objectione from pleading an objection arising from his own fault. The Court judged, That it is their duty to refuse action, unless upon a good title; and that no personal objection against a defendant can supply the want of a title.‡ * Durie, Dec. 5, 1627, Rollok contra Crosbies. + Feb. 22, 1745, Christies contra Christie. Durie, June 20, 1627, Laird Touch contra Laird Hardiesmill; Stair, Gosford, June 25, 1668, Heriot contra Town of Edinburgh. CHAP. VIII. Powers of a court of equity to remedy what is imperfect in common law with respect to legal execution. THIS chapter splits naturally into two sections. First, Where the common law is defective. Second, Where it is oppressive or unjust, SECT. I. Where the common law is defective. It is natural to believe, and it holds in fact, that the different executions for payment of debt founded on common law, relate to those cases only which most frequently occur in practice. Upon a debtor's failing to make payment, his land is attached by an apprising, his moveables by poinding, and the debts due him by arrestment and forthcoming. But experience discovered many profitable subjects that cannot be brought under any of the foregoing executions. And even with respect to common subjects, several peculiar circumstances were discovered, to which the executions mentioned are not applicable. A court of common law, which cannot in any article exceed the bounds of common law, has not power to supply any of these defects. This power is reserved to a court of equity, acting upon a principle of justice often above mentioned, namely, That wherever there is a right it ought to be made effectual. This section comprehends many articles. 1st, Sub jects that cannot be attached by the executions of common law. 2d, Circumstances where even common subjects are withdrawn from these executions. 3d, These executions are in some cases imperfect. 4th, They serve only to make debts effectual, and give no aid to other claims, ART. I. Subjects that cannot be attached by the executions of common law. THE common law is defective with respect to a variety of subjects that cannot be attached by any of its executions; a reversion, for example, a bond secluding executors, a sum of money with which a disposition of land is burdened, &c. These are all carried by an adjudication invented by the sovereign court. They could not be carried by an apprising in the form of common law: nor can they be carried by an adjudication put in place of an apprising by the act 1672, which, by the act itself, is confined to land, and to what rights are properly accessory to land, real servitudes, for example, and such like. But this is not all. There are many other rights and privileges, to attach which no execution is provided. 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. A reduction on the head of deathbed is an example of the same kind. There are many others. If a man fail to purge an irritancy, the common law admits not his creditors to purge in his name; and they can not in their own, unless the privilege be conveyed to them. A court of equity supplies these defects of common law; and, without necessity either of a voluntary or judicial conveyance, entitles creditors at short-hand to avail themselves of such privileges. They are empowered 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. ART. II. Circumstances where even common subjects are withdrawn from these executions. I GIVE the following instances. First, The ap-, prisings of common law reach no land but where the debtor is infeft. The apprising a minute of sale of land, and a disposition without infeftment, was introduced by the sovereign court. Second, John is creditor to James, and James to William. To convey the last-mentioned debt to John, common law requires an arrestment and process of forthcoming. But what if, before John proceed to execution, William die, and no person is found to represent him? In this case there is no place for an arrestment; and yet John ought not to be disappointed of his payment. The Court of Session must supply the defect, by adjudging to John the debt due by William to James. Third, Execution for payment of debt supposes a mora on the debtor's part; and a judge cannot warrantably authorise such execution where there is no This holds even in a process for payment. Nor is there any foundation in equity, more than at mora. |