portunities to enforce the duty of gratitude, because it can seldom be brought under a general rule; but here the court may safely interpose to support a grateful return, the extent of which is ascertained by the young man himself. I put another case. A man of an opulent fortune dies suddenly without making provisions for his younger children. His eldest son and heir supplies this omission by giving suitable provisions, and dies under age. I put a third case. A man of an opulent fortune dies suddenly, leaving a numerous family of children, all of the female sex, without making provisions for them. A collateral heir-male succeeds, who supplies this omission by giving suitable provisions, but dies under age. A court of equity would deviate from the spirit of its institution, if it should authorize a reduction of such provisions by the granter's heir, upon the head of minority and lesion. For a rational and laudable deed never can be lesion in any proper sense.

The same doctrine is applicable to those who have a natural imbecility which continues for life. A transaction made by such a person is not voided by a court of equity, unless it appear irrational, and the effect of imbecility. Where this is the case, it becomes indeed necessary that the court interpose, though there can be no general rule for direction.

The protection afforded by equity to the weak in mind, is extended to save them from hurting themselves by irrational settlements. The opinions of men with respect to the management of affairs, and the exercising acts of property, are no less various than their faces and as the world is seldom agreed about what is rational and irrational in such matters, there can be no rule for restraining the settlements

of those who are not remarkably weak, unless such settlements be not only irrational but absurd. But as the weak and facile are protected against unequal bargains, there is the same reason for their being protected against absurd settlements. Take the following example. In a process at the instance of a brother next of kin, for voiding a testament made by his deceased sister, in favour of a stranger: it came out upon proof, that, some time before making the testament, the testatrix, being seized with madness, was locked up; and that, not long after making the testament, her madness recurred, and continued till her death; that at the time of the testament she was in a wavering state, sometimes better, sometimes worse; in some instances rational, in others little better than delirious, never perfectly sound in mind. In particular, it appeared from the proof, that when in better health, she expressed much affection for her brother the pursuer; but that, when the disease was more upon her, she appeared to have some grudge or resentment at him without any cause. The testament was holograph; and the scroll she copied was furnished by the defendant, in whose favour the testament was made, who had ready access to her at all times, while her brother lived at a distance. In reasoning, it was yielded, that the woman was capable of making a testament, and that the testament challenged might be effectual at common law. But then, it was urged, That though a testament made in the condition of mind above described, preferring one relation before another, a son before a father, or a sister before a brother, might be supported in equity as well as at common law; yet that the testament in question, proceeding not from rational views, but from a

diseased mind, occasioning a causeless resentment against the pursuer, ought not to be supported in equity, being a deed which the testatrix herself must have been ashamed of had she recovered health. Weight also was laid upon the following circumstance, That the testament was made remotis arbitris, and kept secret; which showed the defendant's consciousness, that the testatrix would have been easily diverted by her friends from making so irrational a settlement. In this view, it was considered as a wrong in him to take from her, in these circumstances, an irrational deed; and consequently, that he ought to be restrained in equity from taking any benefit by it. The testament was voided.*

A temporary weakness ought, for the time of its endurance, to have the same effect in law with one that is perpetual; for which reason a discharge obtained from a woman during the pains of childbirth, was reduced; Fountainhall, 7th December 1686.

CHAPTER III.

Powers of a court of equity to remedy what is imperfect in common law, with respect to the natural duty of benevolence.

IN the Introduction there was occasion to observe, that the virtue of benevolence is, by various connections, converted into a duty; and that duties of this kind, being neglected by the common law, are enforced by a court of equity. This opens a wide field

Jan. 26. 1759, Tulloch contra Visc. of Arbuthnott.

of equity, boundless in appearance, and which would be so in reality as well as in appearance, were it not for one circumstance, That the duty of benevolence is much more limited than the virtue. The virtue of benevolence may be exercised in a great variety of good offices: it tends often to make additions to the positive happiness of others, as well as to relieve them from distress or want. But abstracting from positive engagement, the duty of benevolence is, with respect to pecuniary interest, confined to the latter. No connection, no situation, nor circumstance, makes it my duty to enlarge the estate of any person who has already a sufficiency, or to make him locupletior, as termed in the Roman law. For even in the strictest of all connections, that of parent and child, I feel not that I am in conscience or in duty bound, to do more than to make my children independent, so as to preserve them from want: (a) all beyond is left

(a) This proposition is illustrated in the following case. Mary Scot, daughter of Scot of Highchester, having, by unlucky circumstances, been reduced to indigence, was alimented by her mo. ther, Lady Mary Drummond, at the rate of £20 yearly. Lady Mary, at the approach of death, settled all her effects upon Mary Sharp, her daughter of another marriage, taking no other notice of her daughter, Mary Scot, but the recommending her to the charity of Mary Sharp. After the mother's death, Mary Scot brought a process for aliment against her sister, Mary Sharp, founded chiefly on the said recommendation. A proof was taken of the extent of the effects contained in the settlement to the defendant, which amounted to about £300 sterling. No action, either in law or equity, could be founded on the recommendation, very different in its nature from an obligation or a burden. But it was stated, that the pursuer, being very young when her father died, was educated by her mother to no business by which she could gain a livelihood; and it occurred to the court, that though the patria potestas is such, that a peer may breed his son a cobler,

upon parental affection. Neither doth gratitude make it my duty to enrich my benefactor, but only to aid and support him, when any sort of distress or want calls for help. A favour is, indeed, scarce felt to be such, but when it prevents or relieves from harm; and a favour naturally is returned in kind.

Here is a clear circumscription of equity, as far as concerns the present chapter. A court of equity cannot force one man, whether by his labour or money, to add to the riches of another; because, abstracting from a promise, no connection makes this a duty. What then is left for a court of equity, is, in certain circumstances, to compel persons to save from mischief those they are connected with, or to relieve them from want or distress. Benevolence, in this case is a strong impulse to afford relief; and in this case, benevolence, assuming the name of pity or compassion, is, by a law in our nature, made a positive duty. In all other cases, benevolence is a virtue only, not a duty: the exercise is left to our own choice; and the neglect is not punished, though the practice is highly rewarded by the satisfaction it af

and after settling him in business with a competent stock, is relieved from all further aliment; yet if a son be bred as a gentleman, without being instructed in any art that can gain him a farthing, he is entitled to be alimented for life; for otherwise a palpable absurdity will follow, that a man may starve his son, or leave him to want or beggary. Thus, Lady Mary Drummond, breeding her daughter to no business, was, by the law of nature, bound to aliment her for life, or at least till she should be otherwise provided; and the pursuer, therefore, being a creditor for this aliment, has a good action against her mother's representatives. The court, accordingly, found the pursuer entitled to an aliment of £12 sterling yearly, and decerned against the defendant for the same.-8th March 1759, Mary Scol contra Mary Sharp.

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