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
