fords. In this branch of our nature, a beautiful final cause is visible: the benevolence of man, by want of ability, is confined within narrow bounds; and in order to make the most of that slender power he has of doing good, it is wisely directed where it is the most useful, namely, to relieve others from distress.

It appears then, that equity, with respect to the duty of serving others, is not extended beyond pity or compassion. But it is circumscribed within still narrower bounds; for compassion, though a natural duty, is not adopted in its utmost extent by courts of equity. In many cases, this duty is too vague and undetermined to be reached by human laws; and a court of equity pretends not to interpose, but where the duty, being clear and precise, can be brought under general rules. Some of the connections that occasion duty so precise I shall proceed to handle, confining myself to those that are in some measure involved in circumstances; for the more simple connections, such as that of parent and child, require little or no elucidation. Though all the duties of this kind that are enforced by a court of equity, belong to the principle of justice; they may, however, be divided into different classes. The present chapter is, accordingly, divided into two sections. In the first are handled connections that make benevolence a duty, when not prejudicial to our interest. In the second are handled connections that make benevolence a duty even against our interest. These connections are distinguishable from each other so clearly, as to prevent any confusion of ideas; and the foregoing order is chosen, that we may pass gradually from the slighter to the more intimate connections. See the Introduction.

To prompt a man to serve those with whom he is connected, requires not any extraordinary motive, when the good office thwarts not his own interest: any slight connection is sufficient to make this a duty, and, therefore, such connections are first discussed. It requires a more intimate connection, to make it our duty to bestow upon another any part of our substance. Self-interest is not to be overcome but by connections of the most intimate kind, which, therefore, are placed last in order.

SECT. I.

Connections that make benevolence a duty when not prejudicial to our interest.

THE connection I shall first take under considera tion, is that which subsists between a creditor and a cautioner. The nature of this engagement demands benevolence on the part of the creditor. The cautioner, when he pays the debt, suffers loss by the act of the creditor, though not by his fault; and the creditor will find himself bound in humanity, as far as consistent with his own interest, to assist the cautioner in operating his relief against the principal debtor. He ought, in particular, to convey to the cautioner, the bond with the execution done upon it, in order that the cautioner may the more speedily obtain relief from the principal. The law, favouring this moral act, considers the money delivered to the creditor not as payment, but as a valuable consideration for assigning his debt and execution to the cautioner. I cannot explain this better than in the words

of Papinian, the most eminent of all the writers on the Roman law: "Cum possessor unus, expediendi negotii causa, tributorum jure conveniretur; adversus cæteros, quorum æque prædia tenentur, ei,

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qui conventus est, actiones a fisco præstantur: sci" licet ut omnes pro modo prædiorum pecuniam tri"buti conferant: nec inutiliter actiones præstantur "tametsi fiscus pecuniam suam reciperaverit, quia "nominum venditorum pretium acceptum videtur."* From which consideration it follows, that this assignment may be demanded and granted ex post facto, if the precaution be omitted when the money is paid.

From this connection it also follows, that the creditor is bound to convey to the cautioner every separate security he has for the debt; and, consequently, that if the creditor discharge or pass from his separate security, the cautioner, as far as he suffers thereby, hath an exception in equity against payment.

I must observe historically, that there are many decisions of the Court of Session, declaring the creditor not bound to grant the assignment first mentioned. These decisions, remote in point of time, will not be much regarded; because the rules of equity lay formerly in greater obscurity than at present. And there is an additional reason for disregarding them, that they are not consistent with others relating to the same subject. If it be laid down as a rule, that the creditor is not bound to assign his bond and execution, it ought to follow, that neither is he bound to assign any separate security; if it be not his duty to serve the cautioner in the one case, it cannot be his duty to serve him in the other. And yet, it is a rule established in this court, that the caution*L. 5, De censibus.

er, making payment of the debt, is entitled to every separate security of which the creditor is possessed. One is at no loss to discover the cause of this discrepancy: when the question is about a separate security, upon which the cautioner's relief may wholly depend, the principle of equity makes a strong impression: its impression is slighter when the question is only about assigning the bond, which has no other effect but to save a process.

It is of the greater consequence to settle with precision the equitable rule that governs questions between the creditor and cautioner, because upon it depends, in my apprehension, the mutual relief between co-cautioners. Of two cautioners bound for the same debt at different times, and in different deeds, one pays the debt upon a discharge, without an assignment where is the legal foundation that entitles this man to claim the half from his fellow-cautioner? The being bound in different deeds, affords no place for supposing an implied stipulation of mutual relief: nay, supposing them bound in the same deed, we are not, from that single circumstance, to imply a mutual consent for relief, but rather the contrary, when the clause of mutual relief is emitted; for, in general, when an obvious clause is left out of a deed, it is natural to ascribe the omission to design rather than to forgetfulness. The principal debtor is ex mandato bound to relieve all his cautioners: but there is no medium at common law, by which one cautioner can demand relief from another. And with respect to equity, the connection of being bound for payment of the same debt, is too slight to entitle that cautioner who pays the whole debt, to be indem-. nified in part out of the goods of his fellow. It ap

pears, then, that the claim of mutual relief among co-cautioners can have no foundation, other than the obligation upon the creditor to assign upon payment. This assignment in the case of a single cautioner must be total; in the case of several must be pro rata; because the creditor is equally connected with each of them. The only difficulty is, that, at this rate, there is no mutual relief unless an assignment be actually given. But this difficulty is easily surmounted. We have seen above, that such assignment may be granted ex post facto: hence, it is the duty of the creditor to grant the assignment at whatever time demanded; and if the creditor prove refractory, the law will interpose to hold an assignment as granted, because it ought to be granted. And this suppletory or implied legal assignment, is the true foundation of the mutual relief among cocautioners, which obtains both in Scotland and England.

Utility concurs to support this equitable claim: no situation with regard to law would be attended with more pernicious consequences, than to permit a creditor to oppress one cautioner and relieve others: judges ought to be jealous of such arbitrary powers, which will generally be directed by bad motives; often by resentment, and, which is still worse, more often by avarice. It is happy, therefore, for mankind, that two different principles coincide in matters of this kind, to put them upon a just and salutary footing.

The creditor, as has been said, being bound to all the cautioners equally, cannot legally give an assignment to one of them in such terms as to entitle him to claim the whole from the other cautioners.

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