into an objection of want of power. A judge, unless the debtor be called into court, cannot adjudge his land to his creditor; and if he proceed without that solemnity, he acts ultra vires, and the adjudication is void. The case is the same, where an adjudication is led against an apparent heir, without charging him to enter to the estate of his ancestor. To determine what must be the effect of a pluris petitio, an adjudication shall be considered in two lights; first, as a judicial sale, and next as a pignus prætorium. If a man voluntarily give off land to his creditor for satisfaction of £1,000, understood at the time to be due, though the debt be really but £900, the sale is not void; nor is it even voidable. The property is fairly transferred to the creditor, of which he cannot be forfeited when he is guilty of no fault; and all that remains is, that the quondam creditor, now proprietor, be bound to make good the difference. A judicial sale of land for payment of debt, stands precisely on the same footing: it cannot be voided upon account of a pluris petitio more than a voluntary sale. I illustrate this doctrine, by comparing an adjudication considered as a judicial sale, with a poinding, which is really a judicial sale. A man poinds his debtor's moveables for payment of £100, and the poinding is completed by a transference of these moveables to the creditor, for satisfaction of the debt. It is afterward discovered, that £90 only was due. Will this void the execution, and restore the goods to the debtor ? No person ever dreamed that an innocent pluris petitio can have such effect with respect to a poinding. By the original form of this execution, the debtor's goods were exposed to public auction, and the price was delivered to the creditor

in payment pro tanto: the purchaser surely could not be affected by any dispute about the extent of the debt; and the result must be the same where the goods are adjudged to the creditor for want of another purchaser. With regard to all legal effects, he is held the purchaser, and is in reality so; and if it shall be found that the execution has proceeded for a greater sum than was really due, this circumstance will found a personal action to the quondam debtor, but by no means a rei vindicatio.

But too much is said upon an adjudication considered as a judicial sale; for during the legal at least, it is not a judicial sale, but a pignus prætorium only; and this I have had occasion to demonstrate above.* If a man shall grant to his creditor real security for £1,000 when in reality £900 is only due, will this pluris petitio void the infeftment? There is not the least pretext for such a consequence: the sum secured will indeed be restricted, but the security stands firm and unshaken. It will be evident at first glance, that the same must be the case of an adjudication led innocently for a greater sum than is due: a pignus prætorium must, with respect to the present point, be precisely of the same nature with a voluntary pledge.

Hence it clearly appears, that the sustaining an adjudication for what is truly due, notwithstanding a pluris petitio, is not an operation of equity, to have place regularly in the present treatise; but truly an operation of common law, which sustains not a pluris petitio to any other effect than to restrict the sum secured to what is truly due, without impinging upon the security. And this was the opinion of the court, given in the case of the creditors of Easterfearn, 6th See suprà, p. 274.

November 1747, engrossed in Lord Kilkerran's collection. An adjudication was objected to upon a most dishonest pluris petitio. The adjudication, however, was sustained as a security for the sum truly due. Equity could afford no aid to such an adjudication. What the court went upon was, That at common law a pluris petitio is not sufficient to annul a right in security, but only to restrict it. This is not a vain dispute; for, beside resting the point upon its true foundation, which always tends to instruction, it will be found to have considerable influence in practice. At present, an adjudication, where there is a pluris petitio, is never supported against competing creditors further than to be a security for the sums due in equity, striking off all penalties: and this practice is right, supposing such adjudication to be null at common law, and to be supported by equity only. But, if a pluris petitio have not the effect at common law to void the adjudication, but only to restrict the sum secured, there is no place for striking off the penalties, more than where there is no pluris petitio. Equity, indeed, interposes to restrict penalties to the damage that the creditor can justly claim by delay of payment; but this holds in all adjudications equally, not excepting those that are free of all objections.

That it is lawful for one certans de damno evitando to take advantage of another's error, is an universal law of nature; that it has place in covenants, is shown in a former chapter; and that it should have place among creditors, is evidently agreeable to justice, which dictates, that if there must be a loss, it ought to rest upon the creditor who hath been guilty of some error, rather than upon the creditor

ODUNIAN

who hath avoided all error. When matters of law are taken in a train, and every case is reduced to some principle, judges seldom err. What occasions so many erroneous judgments, is the being swayed by particular circumstances in every new case, without thinking of recurring to principles or general rules. By this means we are extremely apt to go astray, carrying equity sometimes too far, and sometimes not far enough. Take the following remarkable instance. Among the creditors of the YorkBuildings Company, a number of annuitants for life, infeft for their security, occupied the first place; and next in order came the Duke of Norfolk, infeft for a very large sum. These annuities were frequently bought and sold; and the purchasers, in some instances, instead of demanding a conveyance of the original bonds secured by infeftment, returned these to the company, and took new personal bonds in their stead, not imagining, that by this method the real security was unhinged. These new bonds being objected to by the Duke of Norfolk, as merely personal, and incapable to compete with his infeftment, the court pronounced the following interlocutor:-" In

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respect that the English purchasers, ignorant of "the laws of Scotland, had no intention to pass from "their real security; and that the Duke of Norfolk, "who had suffered no prejudice by the error, ought not to take advantage of it; therefore, find the "said annuitants preferable, as if they had taken assignments to the original bonds, instead of delivering them up to the company. to the company." This was stretching equity beyond all bounds; and, in effect, judging that a creditor is barred by equity from taking advantage of any error committed by a co-creditor.

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B

Upon a reclaiming petition, the interlocutor was altered, and the Duke of Norfolk preferred.* And this judgment was affirmed in the House of Lords.

CHAP. IX.

Power of a court of equity to inflict punishment, and to mitigate it.

It is an inviolable rule of justice, as well as of expediency, That no man be allowed to reap the fruits of his fraud, nor to take benefit by any wrong he has done. If, by the tortious act, another be hurt in his rights or privileges, there is ground for reparation at common law; which subject is handled in the beginning of this work. But wrong may be done without impinging upon any right or privilege of another; and such wrongs can only be redressed in a court of equity, by inflicting punishment in proportion to the offence. In slight offences, it is satisfied with forfeiting the wrong-doer of his gain: in grosser offences, it not only forfeits the gain, but sometimes inflicts a penalty over and above. I begin with cases of the first kind.

A man having two estates, settles them upon John and James, his two sons. John discovering, accidentally, a defect in his father's titles, to the estate settled on James, acquires a preferable title, and claims that estate from his brother. This palpable transgression, not only of gratitude, but of filial affection, was never committed by any person with a

* Feb. 14, 1752, Duke of Norfolk contra Annuitants of the York-Buildings Company.