Читать книгу Principles of Equity - Henry Home Lord Kames - Страница 19

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INTRODUCTION ^*

Equity, scarce known to our forefathers, makes at present a great figure. It has, like a plant, been tending to maturity, slowly indeed, but constantly; and at what distance of time it shall arrive at perfection, is perhaps not easy to foretell. Courts of equity have already acquired such an extent of jurisdiction, as to obscure in a great measure courts of law.¹ A revolution so signal, will move every curious enquirer to attempt, or to wish at least, a discovery of the cause. But vain will be the attempt, till first a clear idea be formed of the difference between a court of law and a court of equity. The former we know follows precise rules: but does the latter act by conscience solely without any rule? This would be unsafe while men are the judges, liable no less to partiality than to error: nor could a court without rules ever have attained that height of favour, and extent <2> of jurisdiction, which courts of equity enjoy. But if a court of equity be governed by rules, why are not these brought to light in a system? One would imagine, that such a system should not be useful only, but necessary; and yet writers, far from aiming at a system, have not even defined with any accuracy what equity is, nor what are its limits and extent. One operation of equity, universally acknowledged, is, to remedy imperfections in the common law, which sometimes is defective, and sometimes exceeds just bounds; and as equity is constantly opposed to common law, a just idea of the latter may probably

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lead to the former. In order to ascertain what is meant by common law, a historical deduction is necessary; which I the more chearfully undertake, because the subject seems not to be put in a clear light by any writer.

After states were formed and government established, courts of law were invented to compel individuals to do their duty. This innovation, as commonly happens, was at first confined within narrow bounds. To these courts power was given to enforce duties essential to the <3> existence of society; such as that of forbearing to do harm or mischief. Power was also given to enforce duties derived from covenants and promises, such of them at least as tend more peculiarly to the well-being of society: which was an improvement so great, as to leave no thought of proceeding farther; for to extend the authority of a court to natural duties of every sort, would, in a new experiment, have been reckoned too bold. Thus, among the Romans, many pactions were left upon conscience, without receiving any aid from courts of law: buying and selling only, with a few other covenants essential to commercial dealing, were regarded.² Our courts of law in Britain were originally confined within still narrower bounds: no covenant whatever was by our forefathers countenanced with an action: a contract of buying and selling was not;^* and as buying and selling is of all covenants the most useful in ordinary life, we are not at liberty to suppose that any other was more privileged.^† <4>

But when the great advantages of a court of law were experienced, its jurisdiction was gradually extended, with universal approbation: it was extended, with very few exceptions, to every covenant and every promise: it was extended also to other matters, till it embraced every obvious duty

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arising in ordinary dealings between man and man. But it was extended no farther; experience having discovered limits, beyond which it was deemed hazardous to stretch this jurisdiction. Causes of an extraordinary nature, requiring some singular remedy, could not be safely trusted with the ordinary courts, because no rules were established to direct their proceedings in such matters; and upon that account, such causes were appropriated to the king and council, being the paramount court.^a Of this nature <5> were actions for proving the tenor or contents of a lost writ; extraordinary removings against tenants possessing by lease; the causes of pupils, orphans, and foreigners; complaints against judges and officers of law,^* and the more atrocious crimes, termed, Pleas of the crown. Such extraordinary causes, multiplying greatly by complex and intricate connections among individuals, became a burden too great for the king and council. In order therefore to relieve this court, extraordinary causes of a civil nature, were in England devolved upon the court of chancery; a measure the more necessary, that the king, occupied with the momentous affairs of government, and with foreign as well as domestic transactions, had not leisure for private causes. In Scotland, more remote, and therefore less interested in foreign affairs, there was not the same necessity for this innovation: our kings, however, addicted to action more than to contemplation, neglected in a great measure their privilege of being judges, and suffered causes peculiar to the king and <6> council to be gradually assumed by other sovereign courts. The establishment of the court of chancery in England, made it necessary to give a name to the more ordinary branch of law that is the province of the common or ordinary courts: it is termed, the Common Law: and in opposition to it, the extraordinary branch devolved on the court of chancery is termed Equity; the name being derived from the nature of the jurisdiction, directed less by precise rules, than secundum aequum et bonum,³ or according to what the judge in conscience thinks

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right.^a Thus equity, in its proper sense, comprehends every matter of law that by the common law is left without remedy; and supposing the boundaries of the common law to be ascertained, there can no longer remain any difficulty about the powers of a court of equity. But as these boundaries are <7> not ascertained by any natural rule, the jurisdiction of common law must depend in a great measure upon accident and arbitrary practice; and accordingly the boundaries of common law and equity, vary in different countries, and at different times in the same country. We have seen, that the common law of Britain⁴ was originally not so extensive as at present; and instances will be mentioned afterward, which evince, that the common law is in Scotland farther extended than in England. Its limits are perhaps not accurately ascertained in any country; which is to be regretted, because of the uncertainty that must follow in the practice of law. It is lucky, however, that the disease is not incurable: a good understanding between the judges of the different courts, with just notions of law, may, in time, ascertain these limits with sufficient accuracy.⁵

Among a plain people, strangers to refinement and subtilties, law-suits may be frequent, but never are intricate. Regulations to restrain individuals from doing mischief, and to enforce performance of covenants, composed originally the bulk <8> of the common law; and these two branches, among our rude ancestors, seemed to comprehend every subject of law. The more refined duties of morality were, in that early period, little felt, and less regarded. But law, in this simple form, cannot long continue stationary:

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for in the social state under regular discipline, law ripens gradually with the human faculties; and by ripeness of discernment and delicacy of sentiment, many duties, formerly neglected, are found to be binding in conscience. Such duties can no longer be neglected by courts of justice; and as they made no part of the common law, they come naturally under the jurisdiction of a court of equity.

The chief objects of benevolence considered as a duty, are our relations, our benefactors, our masters, our servants, &c.; and these duties, or the most obvious of them, come under the cognisance of common law. But there are other connections, which, though more transitory, produce a sense of duty. Two persons shut up in the same prison, though no way connected but by contiguity and resemblance of condition, are sensible, however, <9> that to aid and comfort each other is a duty incumbent on them. Two persons, shipwrecked upon the same desert island, are sensible of the like mutual duty. And there is even some sense of this kind, among a number of persons in the same ship, or under the same military command.

Thus mutual duties among individuals multiply by variety of connections; and in the progress of society, benevolence becomes a matter of conscience in a thousand instances, formerly disregarded. The duties that arise from connections so slender, are taken under the jurisdiction of a court of equity; which at first exercises its jurisdiction with great reserve, interposing in remarkable cases only, where the duty is palpable. But, gathering courage from success, it ventures to enforce this duty in more delicate circumstances: one case throws light upon another: men, by the reasoning of the judges, become gradually more acute in discerning their duty: the judges become more and more acute in distinguishing cases; and this branch of law is imperceptibly moulded into a <10> system.^a In rude

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ages, acts of benevolence, however peculiar the connection may be, are but faintly perceived to be our duty: such perceptions become gradually more firm and clear by custom and reflection; and when men are so far enlightened, it is the duty as well as honour of judges to interpose.^*

This branch of equitable jurisdiction shall be illustrated by various examples. When goods by labour, and perhaps with danger, are recovered from the sea after a shipwreck, every one perceives it to be the duty of the proprietor to pay salvage. A man ventures his life to save a house from fire, and is successful; no mortal can doubt that he is intitled to a recompence from the proprietor, who is benefited. If a man’s affairs by his absence be in <11> disorder, ought not the friend who undertakes the management to be kept indemnis,⁶ though the subject upon which his money was usefully bestowed may have afterward perished casually?⁷ Who can doubt of the following proposition, That I am in the wrong to demand money from my debtor, while I with-hold the sum I owe him, which perhaps may be his only resource for doing me justice? Such a proceeding must, in the common sense of mankind, appear partial and oppressive. By the common law, however, no remedy is afforded in this case, nor in the others mentioned. But equity affords a remedy, by enforcing what in such circumstances every man perceives to be his duty. I shall add but one example more: In a violent storm, the heaviest goods are thrown overboard, in order to disburden the ship: the proprietors of the goods preserved by this means from the sea, must be sensible that it is their duty to repair the loss; for the man who has thus abandoned his goods for the common safety, ought to be in no worse condition than themselves. Equity dictates this to be their duty; and <12> if they be refractory, a court of equity will interpose in behalf of the sufferer.

It appears now clearly, that a court of equity commences at the limits of

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the common law, and enforces benevolence where the law of nature makes it our duty. And thus a court of equity, accompanying the law of nature in its gradual refinements, enforces every natural duty that is not provided for at common law.

The duties hitherto mentioned arise from connections independent altogether of consent. Covenants and promises also, are the source of various duties. The most obvious of these duties, being commonly declared in words, belong to common law. But every incident that can possibly occur in fulfilling a covenant, is seldom foreseen; and yet a court of common law, in giving judgment upon covenants, considers nothing but declared will, neglecting incidents that would have been provided for, had they been foreseen. Further, the inductive motive for making a covenant, and its ultimate purpose and intendment, are circumstances disregarded at common law: these, however, are capital circumstances; and justice, where they are <13> neglected, cannot be fulfilled. Hence the powers of a court of equity with respect to engagements. It supplies imperfections in common law, by taking under consideration every material circumstance, in order that justice may be distributed in the most perfect manner. It supplies a defect in words, where will is evidently more extensive: it rejects words that unwarily go beyond will; and it gives aid to will where it happens to be obscurely or imperfectly expressed.⁸ By taking such liberty, a covenant is made effectual according to the aim and purpose of the contractors; and without such liberty, seldom it happens that justice can be accurately distributed.

In handling this branch of the subject, it is not easy to suppress a thought that comes cross the mind. The jurisdiction of a court of common law, with respect to covenants, appears to me odd and unaccountable. To find the jurisdiction of this court limited, as above mentioned, to certain duties of the law of nature, without comprehending the whole, is not singular nor anomalous. But with respect to the circumstances that occur in the same <14> cause, it cannot fail to appear singular, that a court

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should be confined to a few of these circumstances, neglecting others no less material in point of justice. This reflection will be set in a clear light by a single example. Every one knows, that an English double bond⁹ was a contrivance to evade the old law of this island, which prohibited the taking interest for money: the professed purpose of this bond is, to provide for interest and costs, beyond which the penal part ought not to be exacted; and yet a court of common law, confined strictly to the words or declared will, is necessitated knowingly to commit injustice. The moment the term of payment is past, when there cannot be either costs or interest, this court, instead of pronouncing sentence for what is really due, namely, the sum borrowed, must follow the words of the bond, and give judgment for the double. This defect in the constitution of a court, is too remarkable to have been overlooked: a remedy accordingly is provided, though far from being of the most perfect kind; and that is, a privilege to apply to the court of equity for redress. Far better had it been, either to withdraw <15> covenants altogether from the common law, or to impower the judges of that law to determine according to the principles of justice.^a I need scarce observe, that the present reflection regards England only, where equity and common law are appropriated to different courts. In Scotland, and other countries where both belong to the same court, the inconvenience mentioned cannot happen.—But to return to the gradual extension of equity, which is our present theme:

A court of equity, by long and various practice, finding its own strength and utility, and impelled by the principle of justice, boldly undertakes a matter still more arduous; and that is, to correct or mitigate the rigour, and

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what even in a proper sense may be termed the injustice of common law. It is not in human foresight to establish any general rule, that, however salutary in the main, may not be oppressive and unjust in its application to some singular cases. Every work of man <16> must partake of the imperfection of its author; sometimes falling short of its purpose, and sometimes going beyond it. If with respect to the former a court of equity be useful, it may be pronounced necessary with respect to the latter; for, in society, it is certainly a greater object to prevent legal oppression, which alarms every individual, than to supply legal defects, scarce regarded but by those immediately concerned. The illustrious Bacon, upon this subject, expresses himself with great propriety: “Habeant curiae praetoriae potestatem tam subveniendi contra rigorem legis, quam supplendi defectum legis. Si enim porregi debet remedium ei quem lex praeteriit, multo magis ei quem vulneravit.”^*

All the variety of matter hitherto mentioned, is regulated by the principle of justice solely. It may, at first view, be thought, that this takes in the whole compass of law, and that there is no remaining field to be occupied by a court of equity. But, upon more narrow inspection, we find a number of law-cases into <17> which justice enters not, but only utility. Expediency requires that these be brought under the cognisance of a court; and the court of equity, gaining daily more weight and authority, takes naturally such matters under its jurisdiction. I shall give a few examples. A lavish man submits to have his son made his interdictor:¹⁰ this agreement is not unjust; but, tending to the corruption of manners, by reversing the order of nature, it is reprobated by a court of equity, as contra bonos mores.¹¹ This court goes farther: it discountenances many things in themselves indifferent, merely because of their bad tendency. A pactum de

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quota litis¹² is in itself innocent, and may be beneficial to the client as well as to the advocate: but to remove the temptation that advocates are under to take advantage of their clients instead of serving them faithfully, this court declares against such pactions. A court of equity goes still farther, by consulting the public interest with relation to matters not otherwise bad but by occasioning unnecessary trouble and vexation to individuals. Hence the origin of regulations tending to abridge law-suits. <18>

A mischief that affects the whole community, figures in the imagination, and naturally moves judges to stretch out a preventive hand. But what shall we say of a mischief that affects one person only, or but a few? An estate, for example, real or personal, is left entirely without management, by the infancy of the proprietor, or by his absence in a remote country: he has no friends, or they are unwilling to interpose. It is natural, in this case, to apply for public authority. A court of common law, confined within certain precise limits, can give no aid; and therefore it is necessary that a court of equity should undertake cases of this kind; and the preventive remedy is easy, by naming an administrator, or, as termed in the Roman law, curator bonorum.¹³ A similar example is, where a court of equity gives authority to sell the land of one under age, where the sale is necessary for payment of debt: to decline interposing, would be ruinous to the proprietor; for without authority of the court no man will venture to purchase from one under age. Here the motive is humanity to a single individual: but it would be an <19> imperfection in law, to abandon an innocent person to ruin, when the remedy is so easy. In the cases governed by the motive of public utility, a court of equity interposes as court properly, giving or denying action, in order to answer the end purposed: but in the cases now mentioned, and in others similar, there is seldom occasion for a process; the court acts by magisterial powers.

The powers above set forth assumed by our courts of equity, are, in effect, the same that were assumed by the Roman Praetor,¹⁴ from necessity,

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without any express authority. “Jus praetorium est quod praetores introduxerunt, adjuvandi vel supplendi vel corrigendi juris Civilis gratia, propter utilitatem publicam.”^*

Having given a historical view of a court of equity, from its origin to its present extent of power and jurisdiction, I proceed to some other matters, which must be premised before entering into particulars. The first I shall insist on is of the greatest moment, namely, Whether a court of <20> equity be, or ought to be, governed by any general rules? To determine every particular case according to what is just, equal, and salutary, taking in all circumstances, is undoubtedly the idea of a court of equity in its perfection; and had we angels for judges, such would be their method of proceeding, without regarding any rules: but men are liable to prejudice and error, and for that reason cannot safely be trusted with unlimited powers. Hence the necessity of establishing rules, to preserve uniformity of judgment in matters of equity as well as of common law: the necessity is perhaps greater in the former, because of the variety and intricacy of equitable circumstances. Thus, though a particular case may require the interposition of equity to correct a wrong or supply a defect; yet the judge ought not to interpose, unless he can found his decree upon some rule that is equally applicable to all cases of the kind. If he be under no limitation, his decrees will appear arbitrary, though substantially just: and, which is worse, will often be arbitrary, and substantially unjust; for such too frequently are human proceedings <21> when subjected to no control. General rules, it is true, must often produce decrees that are materially unjust; for no rule can be equally just in its application to a whole class of cases that are far from being the same in every circumstance: but this inconvenience must be tolerated, to avoid a greater, that of making judges arbitrary. A court of equity is a happy invention to remedy the errors of common law: but this remedy must stop somewhere; for courts cannot be established without end, to be checks one upon another. And hence it is,

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that, in the nature of things, there cannot be any other check upon a court of equity but general rules. Bacon expresses himself upon this subject with his usual elegance and perspicuity: “Non sine causa in usum venerat apud Romanos album praetoris, in quo praescripsit et publicavit quomodo ipse jus dicturus esset. Quo exemplo judices in curiis praetoriis, regulas sibi certas (quantum fieri potest) proponere, easque publice affigere, debent. Etenim optima est lex, quae minimum relinquit arbitrio <22> judicis, optimus judex qui minimum sibi.”^*

In perusing the following treatise, it will be discovered, that the connections regarded by a court of equity seldom arise from personal circumstances, such as birth, resemblance of condition, or even blood, but generally from subjects that in common language are denominated goods. Why should a court, actuated by the spirit of refined justice, overlook more substantial ties, to apply itself solely to the grosser connections of interest? doth any connection founded on property make an impression equally strong with that of friendship, or blood-relation, or of country? doth not the law of nature form duties on the latter, more binding in conscience than on the former? Yet the more conscientious duties are left commonly to shift for themselves, while the duties founded on interest are supported and enforced by courts of equity. This, at first view, looks like a prevailing attachment to riches; but it is not so in reality. The duties arising from the connection last <23> mentioned, are commonly ascertained and circumscribed, so as to be susceptible of a general rule to govern all cases of the kind. This is seldom the case of the other natural duties; which, for that reason, must be left upon conscience, without receiving any aid from a court of equity. There are, for example, not many duties more firmly rooted in our nature than that of charity; and, upon that account, a court of equity will naturally be tempted to interpose in its behalf. But the extent of this duty depends on such a variety of circumstances, that the

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wisest heads would in vain labour to bring it under general rules: to trust, therefore, with any court, a power to direct the charity of individuals, is a remedy which to society would be more hurtful than the disease; for instead of enforcing this duty in any regular manner, it would open a wide door to legal tyranny and oppression. Viewing the matter in this light, it will appear, that such duties are left upon conscience, not from neglect or insensibility, but from the difficulty of a proper remedy. And when such duties can be brought under a general rule, I except not even <24> gratitude, though in the main little susceptible of circumscription, we shall see afterward, that a court of equity declines not to interpose.

In this work will be found several instances where equity and utility are in opposition; and when that happens, the question is, Which of them ought to prevail? Equity, when it regards the interest of a few individuals only, ought to yield to utility when it regards the whole society. It is for that very reason, that a court of equity is bound to form its decrees upon general rules; for this measure regards the whole society by preventing arbitrary proceedings.

It is commonly observed, that equitable rights are less steady and permanent than those of common law: the reason will appear from what follows. A right is permanent or fluctuating according to the circumstances upon which it is founded. The circumstances that found a right at common law, being always few and weighty, are not variable: a bond of borrowed money, for example, must subsist till it be paid. A claim in equity, on the contrary, seldom arises without a multiplicity <25> of circumstances; which make it less permanent, for if but a single circumstance be withdrawn, the claim is gone. Suppose, for example, that an infeftment of annualrent¹⁵ is assigned to a creditor for his security: the creditor ought to draw his payment out of the interest before touching the capital; which is an equitable rule, because it is favourable to the assignor or cedent,¹⁶ without hurting the assignee. But if the cedent have another creditor who arrests¹⁷ the interest, the equitable rule now mentioned ceases, and gives

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place to another; which is, that the assignee ought to draw his payment out of the capital, leaving the interest to be drawn by the arrester. Let us next suppose, that the cedent hath a third creditor, who after the arrestment adjudges¹⁸ the capital. This new circumstance varies again the rule of equity: for though the cedent’s interest weighs not in opposition to that of his creditor arresting, the adjudging creditor and the arrester are upon a level as to every equitable consideration; and upon that account, the assignee, who is the preferable creditor,¹⁹ ought to deal impartially between them: if he be not willing to take <26> payment out of both subjects proportionally, but only out of the capital, or out of the interest; he ought to make an assignment to the postponed creditor,²⁰ in order to redress the inequality; and if he refuse to do this act of justice, a court of equity will interpose.

This example shows the mutability of equitable claims: but there is a cause which makes them appear still more mutable than they are in reality. The strongest notion is entertained of the stability of a right of property; because no man can be deprived of his property but by his own deed. A claim of debt is understood to be stable, but in an inferior degree; because payment puts an end to it without the will of the creditor. But equitable rights, which commonly accrue to a man without any deed of his, are often lost in the same manner: and they will naturally be deemed transitory and fluctuating, when they depend so little on the will of the persons who are possessed of them.

In England, where the courts of equity and common law are different, the boundary between equity and common law, where the legislature doth not <27> interpose, will remain always the same. But in Scotland, and other countries where equity and common law are united in one court, the boundary varies imperceptibly; for what originally is a rule in equity, loses its character when it is fully established in practice; and then it is considered as common law: thus the actio negotiorum gestorum,²¹ retention, salvage, &c. are in Scotland scarce now considered as depending on principles of equity. But by cultivation of society, and practice of law,

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nicer and nicer cases in equity being daily unfolded, our notions of equity are preserved alive; and the additions made to that fund, supply what is withdrawn from it by common law.

What is now said suggests a question, no less intricate than important, Whether common law and equity ought to be committed to the same or to different courts. The profound Bacon gives his opinion in the following words: “Apud nonnullos receptum est, ut jurisdictio, quae decernit secundum aequum et bonum, atque illa altera, quae procedit secundum jus strictum, iisdem curiis deputentur: apud alios autem, ut diversis: omnino <28> placet curiarum separatio. Neque enim servabitur distinctio casuum, si fiat commixtio jurisdictionum: sed arbitrium legem tandem trahet.”^* Of all questions those which concern the constitution of a state, and its political interest, being the most involved in circumstances, are the most difficult to be brought under precise rules. I pretend not to deliver any opinion; and feeling in myself a bias against the great authority mentioned, I scarce venture to form an opinion. It may be not improper, however, to hazard a few observations, preparatory to a more accurate discussion. I feel the weight of the argument urged in the passage above quoted. In the science of jurisprudence, it is undoubtedly of great importance, that the boundary between equity and common law be clearly ascertained; without which we shall in vain hope for just decisions: a judge, who is uncertain whether the case belong to equity or to common law, cannot have a clear conception what judgment ought to be pronounced. But a court that judges of both, being <29> relieved from determining this preliminary point, will be apt to lose sight altogether of the distinction between common law and equity. On the other hand, may it not be urged, that the dividing among different courts things intimately connected, bears hard upon every one who has a claim to prosecute? Before bringing his action, he must at his peril determine an extreme nice point, Whether the case be governed by common

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law, or by equity. An error in that preliminary point, though not fatal to the cause because a remedy is provided, is, however, productive of much trouble and expence. Nor is the most profound knowledge of law sufficient always to prevent this evil; because it cannot always be foreseen what plea will be put in for the defendant, whether a plea in equity or at common law. In the next place, to us in Scotland it appears extremely uncouth, that a court should be so constituted, as to be tied down in many instances to pronounce an iniquitous judgment. This not only happens frequently with respect to covenants, as above mentioned, but will always happen where a claim founded on common law, which <30> must be brought before a court of common law, is opposed by an equitable defence, which cannot be regarded by such a court. Weighing these different arguments with some attention, the preponderancy seems to be on the side of an united jurisdiction; so far at least, as that the court before which a claim is regularly brought, should be empowered to judge of every defence that is laid against it. The sole inconvenience of an united jurisdiction, that it tends to blend common law with equity, may admit a remedy, by an institute distinguishing with accuracy their boundaries: but the inconvenience of a divided jurisdiction admits not any effectual remedy. These hints are suggested with the greatest diffidence; for I cannot be ignorant of the bias that naturally is produced by custom and established practice.²²

In Scotland, as well as in other civilized countries the King’s council was originally the only court that had power to remedy defects or redress injustice in common law. To this extraordinary power the court of session naturally succeeded, as <31> being the supreme court in civil matters;²³ for in every well-regulated society, some one court must be trusted with this power, and no court more properly than that which is supreme. It may at first sight appear surprising, that no mention is made of this extraordinary power in any of the regulations concerning the court of session. It is probable,

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that this power was not intended, nor early thought of; and that it was introduced by necessity. That the court itself had at first no notion of being possessed of this power, is evident from the act of sederunt,²⁴ November 27, 1592, declaring, “That in time coming they will judge and decide upon clauses irritant²⁵ contained in contracts, tacks,²⁶ infeftments,²⁷ bonds and obligations, precisely according to the words and meaning of the same;”²⁸ which in effect was declaring themselves a court of common law, not of equity. But the mistake was discovered: the act of sederunt wore out of use; and now, for more than a century, the court of session hath acted as a court of equity, as well as of common law. Nor is it rare to find powers unfolded in practice, that were not in view at the <32> institution of a court. When the Roman Praetor was created to be the supreme judge, in place of the consuls, there is no appearance that any instructions were given him concerning matters of equity. And even as to the English court of chancery, though originally a court of equity, there was not at first the least notion entertained of that extensive jurisdiction to which in later times it hath justly arrived.

In Scotland, the union of common law with equity in the supreme court, appears to have had an influence upon inferior courts, and to have regulated their powers with respect to equity. The rule in general is, That inferior courts are confined to common law: and hence it is that an action founded merely upon equity, such as a reduction upon minority and lesion,²⁹ upon fraud, &c. is not competent before an inferior court. But if against a process founded on common law an equitable defence be stated, it is the practice of inferior courts to judge of such defence. Imitation of the supreme court, which judges both of law and equity, and the inconvenience of removing to another court a process that has perhaps long depended, paved the <33> way to this enlargement of power. Another thing

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already taken notice of, tends to enlarge the powers of our inferior courts more and more; which is, that many actions, founded originally on equity, have by long practice obtained an establishment so firm as to be reckoned branches of the common law. This is the case of the actio negotiorum gestorum, of recompence, and many others, which, for that reason, are now commonly sustained in inferior courts.

Our courts of equity have advanced far in seconding the laws of nature, but have not perfected their course. Every clear and palpable duty is countenanced with an action; but many of the more refined duties, as will be seen afterward, are left still without remedy. Until men, thoroughly humanized, be generally agreed about these more refined duties, it is perhaps the more prudent measure for a court of equity to leave them upon conscience. Neither doth this court profess to take under its protection every covenant and agreement. Many engagements of various sorts, the fruits of idleness, are too trifling, or too ludicrous, to merit the countenance of <34> law: a court, whether of common law or of equity, cannot preserve its dignity if it descend to such matters. Wagers of all sorts, whether upon horses, cocks, or accidental events, are of this sort. People may amuse themselves, and men of easy fortunes may pass their whole time in that manner, because there is no law against it; but pastime, contrary to its nature, ought not to be converted into a serious matter, by bringing the fruits of it into a court of justice. This doctrine seems not to have been thoroughly understood, when the court of session, in a case reported by Dirleton, sustained action upon what is called there a sponsio ludicra.³⁰ A man having taken a piece of gold, under condition to pay back a greater sum, in case he should be ever married, was after his marriage sued for performance. The court sustained process; though several of the judges were of opinion, that sponsiones ludicrae ought not to be authorised.^* But, in the following remarkable case, the court judged better. In the year 1698, a bond was executed of the <35> following tenor. “I Mr William Cochran of Kilmaronock, for a certain sum of money delivered to me by Mr John Stewart younger of Blackhall, bind and oblige me, my heirs and successors,

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to deliver to the said Mr John Stewart, his heirs, executors, and assignees, the sum of one hundred guineas in gold, and that so soon as I, or the heirs descending of my body, shall succeed to the dignity and estate of Dundonald.” This sum being claimed from the heir of the obligor, now Earl of Dundonald, it was objected, That this being a sponsio ludicra ought not to be countenanced with an action. It was answered, That bargains like the present are not against law; for if purchasing the hope of succession from a remote heir be lawful,^* it cannot be unlawful to give him a sum, on condition of receiving a greater when he shall succeed. If an heir pinched for money procure it upon disadvantageous terms, equity will relieve him: but in the present case there is no evidence, nor indeed suspicion, of inequality. It was replied, That it tends <36> not to the good of society to sustain action upon such bargains:³¹ they do not advance commerce, nor contribute in any degree to the comforts of life; why then should a court be bound to support them? It is sufficient that they are not reprobated, but left upon conscience and private faith. The court refused to sustain action; reserving it to be considered, whether the pursuer, upon proving the extent of the sum given by him, be not intitled to demand it back.^†

The multiplied combinations of individuals in society, suggest rules of equity so numerous and various, that in vain would any writer think of collecting all of them. From an undertaking which is in a good measure new, all that can be expected is a collection of some of the capital cases that occur the most frequently in law-proceedings. This collection will comprehend many rules of equity, some of them probably of the most extensive application. Nor will it be without profit, even as to subjects omitted; for by diligently observing the application of <37> equitable principles to a

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number of leading cases, a habit is gradually formed of reasoning correctly upon matters of equity, which will enable us to apply the same principles to new cases as they occur.

Having thus given a general view of my subject, I shall finish with explaining my motive for appearing in print. Practising lawyers, to whom the subject must already be familiar, require no instruction. This treatise is dedicated to the studious in general, such as are fond to improve their minds by every exercise of the rational faculties. Writers upon law are too much confined in their views: their works, calculated for lawyers only, are involved in a cloud of obscure words and terms of art, a language perfectly unknown except to those of the profession. Thus it happens, that the knowledge of law, like the hidden mysteries of some Pagan deity, is confined to its votaries; as if others were in duty bound to blind and implicit submission. But such superstition, whatever unhappy progress it may have made in religion, never can prevail in law: men who have life or fortune at stake, take the liberty to think for themselves <38>; and are no less ready to accuse judges for legal oppression, than others for private violence or wrong. Ignorance of law hath in this respect a most unhappy effect: we all regard with partiality our own interest; and it requires knowledge no less than candour, to resist the thought of being treated unjustly when a court pronounceth against us. Thus peevishness and discontent arise, and are vented against the judges of the land. This, in a free government, is a dangerous and infectious spirit, to remedy which we cannot be too solicitous. Knowledge of those rational principles upon which law is founded I venture to suggest, as a remedy no less efficacious than palatable. Were such knowledge universally spread, judges who adhere to rational principles, and who, with superior understanding can reconcile law to common sense, would be revered by the whole society. The fame of their integrity, supported by men of parts and reading, would descend to the lowest of the people; a thing devoutly to be wished! Nothing tends more to sweeten the temper, than a conviction of impartiality in judges; by which we hold ourselves secure <39> against every insult or wrong. By that means, peace and concord in society are promoted; and individuals are finely disciplined to submit with the like deference to all other acts of legal authority. Integrity is not the only duty required in a judge: to

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behave so as to make every one rely upon his integrity, is a duty no less essential. Deeply impressed with these notions, I dedicate my work to every lover of science; having endeavoured to explain the subject in a manner that requires in the reader no particular knowledge of municipal law. In that view I have avoided terms of art; not indeed with a scrupulous nicety, which might look like affectation; but so as that with the help of a law-dictionary, what I say may easily be apprehended.

Order, a beauty in every composition, is essential in a treatise of equity, which comprehends an endless variety of matter. To avoid obscurity and confusion, we must, with the strictest accuracy, bring under one view things intimately connected, and handle separately things unconnected, or but slightly connected. Two <40> great principles, justice and utility, govern the proceedings of a court of equity; and every matter that belongs to that court, is regulated by one or other of these principles. Hence a division of the present work into two books, the first appropriated to justice, the second to utility; in which I have endeavoured to ascertain all the principles of equity that occurred to me. I thought it would benefit the reader to have these principles illustrated in a third book, where certain important subjects are selected to be regularly discussed from beginning to end; such as furnish the most frequent opportunities for applying the principles ascertained in the former part of the work. <41>