as part of his executry, or as the produce of it. They urged, That though the bill was taken payable to Murray singly, yet the circumstances of the case evince, that it was taken payable to him in quality of executor, and that he was bound to account for it to Sir James's next of kin. They accordingly were preferred.* For the same reason, if an executor, instead of receiving payment, take a new bond from a debtor of the deceased with a cautioner, and discharge the original bond, this new bond, being a surrogatum in place of the former, will be considered in equity as part of the effects of the deceased: and will not be affectable by the creditors of the executor.† And if the debt be lost by the bankruptcy of the debtor and his cautioner, equity will not charge the executor with it, but will only decree him to assign the security. Boylstoun having given money to one Makelwood to buy a parcel of linen-cloth for him, she bought the goods, but without mentioning her employer. Her creditors having arrested these goods, Boylstoun appeared for his interest. The vender deposed, that he understood Makelwood to be the purchaser for her own behoof. She deposed upon the commission from Boylstoun, and that with this money she bought the cloth for his behoof. The court, in respect that the goods being sold to Makelwood for her own behoof, became her property, therefore preferred her creditors the arresters. This was acting as a court of common law. The property no doubt vested in Makelwood, because the goods were sold and delivered to her for her own behoof: but

January 4, 1744, Sir John Baird contra Creditors of Murray. + Stair, book 3, tit. 8, § 71. 1. Chancery cases, 74. § Stair, January 24, 1672, Boylstoun contra Robertson.

that circumstance is far from being decisive in point of equity. It ought to have been considered, that though the transference of property be ruled by the will of the vender, yet that it depends on the will of the purchaser whether to accept delivery for his own behoof or for behoof of another. Here it clearly appeared, that Makelwood bought the goods for behoof of Boylstoun; and that, in effect, she was trustee only in the subject: the legal right was indeed in her, but the equitable right clearly in Boylstoun. It ought to have been considered further, that Makelwood having laid out Boylstoun's money in purchasing the cloth, was bound in justice to deliver the cloth to Boylstoun; and therefore, that he in equity ought to have been preferred to her creditors, even though she had been guilty of making the purchase for her own behoof.

Such is the relief that, by a court of equity, is afforded to the person who has the equitable claim, while matters are entire, and the subject in medio. But now, supposing the execution to be completed, and the property to be transferred to the creditor ignorant of any claim against his debtor, as, for example, by a poinding or by an adjudication with a decree declaring the legal to be expired; what shall be the operation of equity in that case? In answer to this question, it holds in general without a single exception, That a bona fide purchaser lies not open to a challenge in equity more than at common law; because no man can be deprived of his property except by his consent or his crime.

I proceed to another branch of the subject. Execution, both personal and real, for payment of debt, is afforded by the law of all countries: but execution in

tended against the refractory only, is sometimes extended beyond the bounds of humanity; and equity is interposed against rigorous creditors, where it can be done by some rule that is applicable to all cases of the kind. Two rules have been discovered, which judges may safely apply without hazard of becoming arbitrary. The first governs those cases where there is such a peculiar connection between the debtor and creditor, as to make kindness or benevolence their reciprocal duty. In such cases, if the creditor carry his execution to extremity, and deprive the debtor of bread, he acts in contradiction to his positive duty, and a court of equity will interpose to prevent the wrong. The rule is, That a competency must be left to the debtor to preserve him from indigence. Thus, in the Roman law, parents have beneficium competentiæ against their children, and a patron against his client;* a man against his wife ;† and the same obtains in an actio pro socio. The rule was applied by the Court of Session to protect a father against his children, February 21, 1745, Bontein of Mildovan, where two former decisions on the other side were overruled. The common law, in affording execution against a debtor, intends not to indulge the rigour of creditors, acting in direct contradiction to their duty. But as, in making laws, it is impracticable to foresee every limitation, the rule must be made general, leaving to a court of equity to make exceptions in singular cases.

The other rule is more general, and still more safe in the application. Personal execution was contrived to force the debtor, by the terror and hardship *L. 17, De re judicata. + § 37, Instit. de actionibus. L. 16, De re judicata.

of personal restraint, to discover his effects, and to do justice to his creditors. But if the squalor carceris, a species of torture, cannot draw a confession of concealed effects, the unhappy prisoner must be held innocent; and upon that supposition, personal restraint is no less inconsistent with justice than with humanity. Hence the foundation of the cessio bonorum, by which the debtor, after his innocence is proved by the torture of personal restraint, recovers his liberty, upon conveying to his creditors all his effects. And in Scotland this action was known as far back as we have any written law.

APPENDIX to CHAP. VIII.

WHEN a creditor leads an adjudication for a greater sum than is due, it is held, that, at common law, the adjudication is totally void. The reason given is, That an adjudication, being an indivisible right, cannot subsist in part, and fall in part. At the same time it is admitted, that where the pluris petitio is occasioned by an innocent error, without any mala fides in the creditor, the adjudication ought to be supported as a security for what is justly due, not only in accounting with the debtor, but even in a competition with co-creditors; and that, in fact, it receives this support from the Court of Session, acting as a court of equity. If this be the true foundation of the practice, it belongs to the present chapter; being an example of equity correcting the rigour of common law with respect to execution.

But that this practice cannot be founded on equity, appears to me clear from the following considera

tions. In the first place, it is made evident above, than one certans de damno evitando may take advantage of an error committed by another; and that equity prohibits not such advantage to be taken, except where positive gain is made by it.* This rule

is applicable to the present case. A creditor demanding his payment in a competition, is certans de damno evitando: and that, in order to obtain preference, he may lawfully avail himself of an error committed by a co-creditor; and, consequently, that to support a void adjudication against him, is not agreeable to any rule of equity. In the next place, an adjudication ex facie null, as proceeding without citing the debtor, is not supported to any effect whatever, either against a competing creditor, or even against the debtor himself. Nor is there any support given to an adjudication against an apparent heir, when it proceeds without a special charge, or where the lands are not specified in the special charge. This leads me to reflect upon the difference between intrinsic objections, which render the adjudication void and null, and intrinsic objections, which only tend to restrict it. If the pluris petitio be an objection of the former sort, the adjudication, being void totally at common law, cannot be supported in equity, more than an adjudication that proceeds without calling the debtor: if it be an objection of the latter sort, there may possibly be a foundation at common law for supporting the adjudication in part, even against a competing creditor, though there be no foundation in equity. The question then is, To which class this objection belongs?

Intrinsic objections, generally speaking, resolve * See suprà, p. 141.