"cessors, 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 suc"ceed 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 not to the good of society to sustain action upon such bargains: 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 entitled 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

* See Fountainhall, July 29, 1708, Rag contra Brown. + Feb. 7, 1753, Sir Michael Stewart of Blackhall contra Earl of Dundonald.

collection of some of the capital cases that occur the most frequent 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 equitable principles to a 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 ca es as they occur.

Having thus given a general view of my subject, I shall finish with giving 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; 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 pro

nounceth 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 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 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 be easily 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 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.

PRINCIPLES

OF

EQUITY.

BOOK I.

Powers of a Court of Equity, derived from the Principle of Justice.

IN the Introduction, occasion was taken to show, that a court of equity is necessary, first, to supply the defects of common law, and, next, to correct its rigour or injustice. The necessity in the former case arises from a principle, That where there is a right, it ought to be made effectual; in the latter, from another principle, That for every wrong there ought to be a remedy. In both, the object commonly is pecuniary interest. But there is a legal interest which is not pecuniary; and which, for the sake of perspicuity, ought to be handled separately. In that view, the present book is divided into two parts. In the first are treated, the powers of a court of equity to supply defects, and to correct injustice in the common law, with respect to pecuniary interest; and in the second, the powers of a court of equity with respect to matters of justice that are not pecuniary.