he himself was the occasion of the hurt he suffered. Thus, with respect to matters falling under the present section, it appears, that faults come under common law as well as crimes, and omissions as well as commissions; and, therefore, so far the common law appears complete, leaving no gleanings to a court of equity.

SECT. III.

A man tempted or overawed by undue influence to act knowingly against his interest.

THE

HE imperfections of man are not confined to his corporeal part: he has weaknesses of mind as well as of body; and if the taking advantage of the latter to distress a person by acts of violence, be a moral wrong, entitling the sufferer to reparation, it is no less so to take advantage of the former. Society could not subsist without such prohibition; and happy it is for man, as a social being, that the prohibition with respect to both articles makes a branch of his nature.

For the sake of perspicuity, this section shall be split into two parts: the first, where a man, yielding to a temptation, acts knowingly against his interest: the next, where he is overawed to act knowingly against his interest.

ARTICLE I. Where a man, yielding to a temptation, acts knowingly against his interest.

JEAN MACKIE, heiress of Maidland, having disponed several parcels of land, lying about the town

of Wigton, to persons who were mostly innkeepers there, a reduction was brought upon the head of fraud and circumvention by her sister, next heir, in virtue of a settlement. It came out upon proof, 1st, That Jean Mackie was a habitual drunkard; that she sold her very clothes to purchase drink, scarce leaving herself a rag to cover her nakedness; and that, by tempting her with a few shillings, it was in the power of any one to make her accept a bill for a large sum, or to make her dispone any part of her land. 2dly, That the dispositions challenged were granted for no adequate cause. The court accordingly voided these dispositions.* Upon this case it ought to be observed, that though fraud and circumvention were specified as the foundation of this reduction, which is a common but slovenly practice in processes of that sort; yet there was not the least evidence, that Jean was imposed upon or circumvented in any manner. Nor was there any necessity for recurring to such artifice a little drink, or a few shillings to purchase it, would have tempted her at any time, drunk or sober, to give away any of her subjects. And she herself, being called as a witness, deponed, that she granted these dispositions freely, knowing well what she did. Where then lies the ground of reduction? Plainly here: It is undoubtedly an immoral act, to take advantage of weak persons who are incapable to resist certain temptations, thereby to strip them of their goods. To justify such an act, the consent of the person injured is of no avail, more than the consent of a child. With respect to the end, it is no less pernicious than theft or robbery.

November 24, 1752, Mackie contra Maxwell, &c.

ART. II. Where a man is overawed to act knowingly against his interest.

If it be a moral wrong to tempt a weak man to act against his interest, extortion is a wrong still more flagrant, by its nearer approach to open violence. What therefore only remains upon this article, is to illustrate it by examples.

Every benefit taken indirectly by a creditor, for the granting of which no impulsive cause appears but the money lent, will be voided as extorted. Thus an assignment to a lease was voided, being granted of the same date with a bond of borrowed money, and acknowledged to have had no other cause.* At the time of granting an heritable bond of corroboration, the debtor engaged, by a separate writing, That in case he should have occasion to sell the land, the creditor should have it for a price named. The price appeared to be equal; and yet the paction was voided, as obtained by extortion. Upon the same ground, a bond for a sum taken from the principal debtor by his cautioner, as a reward for lending his credit, was voided. +

Rigorous creditors go sometimes differently to work. If they dare not venture upon greater profit directly than is permitted by law, they aim at it indirectly, by stipulating severe irritancies upon failure of payment. One stipulation of that sort, which makes a great figure in our law, is, That if the sum lent upon a wadset or pledge be not repaid at the term convenanted, the property of the wadset or

* Fount. June 20, 1696, Sutherland contra Sinclair.

+ Nov. 30, 1736, Brown contra Muir.

Forbes 24. Fount. 27. January 1711, King contra Ker.

pledge shall ipso facto be transferred to the creditor in satisfaction of the debt. This paction is, in the Roman law, named lex commissoria in pignoribus, and in that law seems to be absolutely reprobated.* With us it must be effectual at common law, because there is no statute against it. But then, as it is a hard and rigorous condition, extorted from a necessitous debtor, a court of equity will interpose to give relief. And this can be done by following a general rule applicable to all cases of the kind; which is, to admit the debtor to redeem his pledge by payment, at any time, till the creditor in a declaratory process signify his will to hold the pledge in place of his money. This process affords the debtor an opportunity to purge his failure by payment; which is all that in fair dealing can be demanded by the creditor. And thus, the declarator serves a double purpose: it relieves the debtor from the hardship of a penal irritancy, by furnishing him an opportunity to pay the debt; and if he be silent, the extracted decree operates a transference of the property to the creditor, which extinguishes the debt.

Hence it follows, that the debtor can redeem the wadset or pledge, whether the bargain be lucrative or no. A declarator being necessary, the property is not transferred to the creditor, if the debtor be willing to redeem his pledge: and this option he must have, whether the creditor have made profit or no by possession of the pledge. Supposing a proper wadset granted, by which the creditor makes more than the interest of his money; justice requires, that the debtor have an option to redeem even after the term limit

L. ult. C. De pactis pignorum.

ed, until the equity of redemption be foreclosed by a declarator; and if a declarator be necessary, as is proved, the debtor must have his option, even where the creditor has drawn less than his interest.

In equity, however, there is a material difference between a proper wadset with a pactum legis commissoriæ, and a proper wadset, where the term of redemption is not limited. In the latter case, the parties stand upon an equal footing: the creditor may demand his money when he pleases; and he has no claim for interest, because of his agreement to accept the rents instead of interest: the debtor, on the other hand, may redeem his land when he pleases, upon repayment of the sum borrowed. But the matter turns out differently in equity, where the power of redemption is by paction limited to a certain term. There being no limitation upon the creditor, he the creditor, he may demand his money when he pleases; and he has no claim for interest, even though the rents have fallen short of the interest. But if the debtor insist upon the equity of redemption after the term to which the redemption is limited, he must, beside repaying the sum borrowed, make good the interest, as far as the rent of the land has proved deficient. For impartiality is essential to a court of equity: if the one party be relieved against the rigour of a covenant, the other has the same claim after taking the land from the creditor contrary to paction, it would be gross injustice to hold the paction good against him, by limiting him to less interest than he is entitled to by law upon an ordinary loan.*

To this case is applicable an English maxim of equity, "That "he that demands equity must give equity."