privilege, even though he should expressly renounce it in the deed of entail. The substitutes are not made parties to the entail, and the renunciation, though in their favour, is not made to them. The renunciation is at best but a gratuitous promise, which none are entitled to lay hold of but that very person to whom it is made.

A great change indeed is produced by the entailer's death. There now exists no longer a person who can loose the fetters of the entail. The institute must for ever be bound by his own deed, restraining him from the free exercise of his property; and as the . substitutes, by the entailer's will, have in their order an equitable claim to the estate, a court of equity will make this claim effectual.

But here a question naturally arises, Why ought not the entailer's privilege to discharge the fetters of the entail, descend to his heirs. The solid and satisfactory answer is what follows. No right or privilege descends to an heir, but what is pecuniary, and tends to make him locupletior: but the privilege of discharging the fetters of an entail makes not the heir locupletior, and, therefore, descends not to him.

Similar to the rule above explained, Alii per alium non acquiritur obligatio, is the following rule, Alii per alium non acquiritur exceptio. These rules, governed by the same principle, throw light upon each other, and ought, therefore, to be handled together. I obtain from a man a promise to discharge his debtor; the question is, What shall be the effect of that promise? The Roman lawyers answer, that I cannot have an action to compel performance, because I have no interest that performance should be made; and that the debtor cannot have an action to compel

performance, because he was not a party to the agreement.

But the Roman writers were certainly guilty of an oversight in not distinguishing here a pactum liberatorium from a pactum obligatorium. Admitting the latter to be limited as above by the common law of the Romans; it can be made evident from the principles of that very law, that the former cannot be so limited, but must be effectual to him for whose behoof it is made, whether the person who obtained it be connected with him or no. The difference indeed with respect to the present point between these pactions, arises not from any difference in their nature, but from the nature of a court of law. Courts of law, as above mentioned, were originally circumscribed within narrow bounds; and with respect to the Roman courts in particular, many pacta obligatoria were left upon conscience unsupported by these courts. Such a constitution indeed confines courts within too narrow limits with respect to their power of doing good; but then it does not lead them to do any wrong. The case is very dif ferent with respect to pacta liberatoria: it is unjust in the creditor to demand payment, after he has promised, even gratuitously, to discharge the debt; and a court of law would be accessory to that act of injustice, if it sustained action after such a promise. The court, therefore, must refuse to sustain action; or rather must sustain the pactum liberatorium as a good exception to the action. And it makes no difference, whether the person who obtained the promise be dead or alive. For while the promise subsists, it must bar the creditor from claiming pay, * L. 17, § 4, De pactis.

+ See Historical law-tracts, tract 2.

ment; and must bar every court from supporting such a claim. It is true, indeed, that while the person who obtained the promise is alive, it is in his power to discharge the promise; and, consequently, to entitle the creditor to an action: but, till that discharge be obtained, it would be unjust in any court to sustain action.

Some of the Roman writers, sensible that an action for payment ought not to be sustained to a creditor who has passed from his debt, endeavour to make this opinion consistent with the rule Alii per alium non acquiritur exceptio, by a subtilty that goes out of sight. They insist, that the debtor cannot found a defence upon a paction to which he was not a party: but they yield, that the paction, though not effectual to the debtor, is effectual against the creditor; and they make it effectual against him, by sustaining to the debtor an exceptio doli.*

Upon the same principle, if a third person pay a debt knowingly, and take a discharge in name of the debtor, the debtor, though the discharge be not delivered to him, can defend himself by an exceptio doli against the creditor demanding payment from him: for the creditor who has received payment from the third person, cannot, in conscience, demand a second payment from the debtor. But though he be barred from demanding a second payment, it does not follow, that the debt is extinguished. That it remains a subsisting debt will appear from considering, 1mò, That the transaction between the creditor and the third person may be dissolved as it was established, namely, by mutual consent, and by cancelling the discharge.-2do, The debtor, notwithstanding the er* L. 25, § 2, l. 26, De pactis ; l. 26, § 4, De pactis dotalibus.

roneous payment, has it in his power to force a discharge from the creditor, upon offering him payment: neither of which could happen, were the debt extinguished. It only remains to be observed, that, when a debt is thus paid by a third person, it is in the debtor's choice to refund the money to the third person, or to pay it to the creditor. But if he defend himself against the creditor by an exceptio doli, which imports his ratification of the payment, the sustaining this exception hath two effects: 1st, It operates to him a legal extinction of the debt; and, next, It entitles the third person to demand the sum from him.

CHAPTER II.

Powers of a court of equity, to repress immoral acts that are not pecuniary.

I HAVE had occasion to mention above, that an attempt to correct all the wrongs that are not pecuniary, would be endless; and in a measure useless, as the method of repressing them all is the same, which is to declare them void. One species of immoral acts deserves peculiar notice, not only as a transgression of duty, but as tending to corrupt our morals.

Individuals in society, are linked together by various relations, that require a suitable conduct. The relations, in particular, that imply subordination, make the corner-stone of government, and ripen men gradually for behaving in it with propriety. The reciprocal duties that arise from the relation of parent and child, of preceptor and scholar, of master and ser

vant, of the high and low, of the rich and poor, and such like, accustom men both to rule and to be ruled. It is, for that reason, extremely material, that the duties arising from subordination be preserved from encroaching on each other: to reverse them, would reverse the order of nature, and tend to unhinge government. To suffer, for example, a young man to assume rule over his father, is to countenance an immoral act and breach of duty; having, at the same time, a tendency to destroy subordination.

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A young man, in his contract of marriage, consented to be put under interdiction to his father and father-in-law; and in case of their failure, to the eldest son of the marriage. They having failed, the court refused to sustain an interdiction where the father is interdicted, and the son interdictor.* A bond was granted by a man to his wife, bearing, "That by his facility, he might be misled to dispose of a "liferent he had by her, and, therefore, binding him"self not to dispone without her consent." Upon this bond followed an inhibition; which was, in effect, putting the husband under interdiction to his wife. The court refused to sustain this act; because a married woman, being sub potestate viri, cannot be a curator to any person; and to make her a curator to her husband, would be to overturn the order of nature.†

Other acts, tending to, or arising from depravation of manners, are also rejected by a court of equity. Thus, a man who had fallen out with his mother, settled his mansion-house on his brother; and took from him a bond in his sister's name, that he * Durie, 18th January 1622, Silvertonhill contra his Father. Stair, 27th February 1663, Lady Milton contra Milton.