Principles of Equity. Henry Home, Lord Kames

without hope of assistance from others, is too apt to flatter himself; because he finds no other work of the kind to humble him by comparison. The attempt to digest equity into a regular system, was not only new, but difficult; and for these reasons, the author hopes he may be excused for not discovering more early several imperfections in the first edition of this book. These imperfections he the more regretted, because they concerned chiefly the arrangement, in which every mistake must be attended with some degree of obscurity. No labour has been spared to improve the present edition: and yet, after all his endeavours, the author dare not hope that every imperfection is cured: that the arrangement is considerably improved, is all that with assurance he can take upon him to say.

      For an interim gratification of the reader’s curiosity before entering upon the work, a few particulars shall here be mentioned. The defects of common law seemed to the author so distinct from its excesses, that he thought it proper to handle these articles separately. But almost as soon as the printing was finished, the author observed that he had been obliged to handle the same subject in different parts of the book, or at least to refer from one part to another; which he holds to be an infallible mark of an unskilful distribution. This led him to reflect, that these defects and excesses proceed both of them equally from the very constitution of a court of common law, too limited in its power of doing justice; whence it appeared evident that they ought to be handled promiscuously as so many examples of imperfection in common law, which ought to be supplied by a court of equity. This is so evident, that even in the same case we find common law sometimes defective, sometimes excessive, according to occasional or accidental circumstances, without any fundamental difference. For example,

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      many claims, good at common law, are reprobated in equity because of some incidental wrong that comes not under the cognisance of common law. A claim of this kind must be sustained by a court of common law, which cannot regard the incidental wrong; and in such instances common law is excessive, by transgressing the bounds of justice. On the other hand, where a claim for reparation is brought by the person who suffered the wrong, a court of common law can give no redress; and in such instances common law is defective. And yet the ratio decidendi¹ is precisely the same in both cases, namely, the limited power of a court of common law.

      The transgression of a deed or covenant is a wrong that ought to be distinguished from a wrong that misleads a man to make a covenant or to grant a deed. The former only belongs to the chapter Of Covenants; the latter, to the chapter Of the powers of a court of equity to protect individuals from injuries. For example, a man is fraudulently induced to enter into a contract: the reparation of this wrong, which is antecedent to the contract, cannot arise from the contract; and for that reason it is put under the chapter last mentioned.

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PREFACE to the Present [Third] Edition

      An useful book ought not to be a costly book. Preface to Present [Third] Edition

      To bring this edition within a moderate price, not only the size is smaller, but the preliminary discourse on the principles of morality is left out, being published more complete in Sketches of the History of Man.

      To mould the principles of equity into a regular system, was a bold undertaking. The pleasure of novelty gave it a lustre, and made every article appear to be in its proper place. The subject being more familiar in labouring upon a second edition, the many errors I discovered produced an arrangement differing considerably from the former. My satisfaction however in the new arrangement, was not entire: the errors I had fallen into produced a degree of diffidence and a suspicion of more. And now, after an interval of no fewer than ten years, I find the suspicion but too well founded, chiefly with respect to the extensive chapter of deeds and covenants. The many divisions and subdivisions of that chapter, I judged at the time to be necessary; but after pondering long and frequently upon them, I became sensible that they tend to darken rather than to enlighten the subject. That chapter is now divided into fewer and more distinct heads; which I expect will be found a considerable improvement. In an institute of law or of any other science, the analyzing it into its constituent parts, and the arranging every article properly, is of supreme importance. One could not conceive, without experience, how greatly accurate distribution contributes to clear conception. Before I was far advanced in the present edition, the many errors I found in the distribution surprised and vexed me. I have bestowed much pains in correcting these errors; and yet I will not answer that there are none left. Many escaped me before; and some may again escape me. No work of man is perfect: it is good however to be on the mending hand; and in every new attempt, to approach nearer

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      and nearer to perfection. To compile a body of law, the parts intimately connected and every link hanging on a former, requires the utmost effort of the human genius. Have I not reason to think so, considering how imperfect in that respect the far greater part of law-books are; witness in particular the famous body of Roman law compiled under the auspices of the Emperor Justinian,¹ remarkable even among law-books for defective arrangement? Let the candid reader keep this in view, and he will be indulgent to the errors of arrangement in this edition, if after my utmost application, any remain.

      But imperfect arrangement in the former editions, is not the only thing that requires an apology. Frequent and serious reflection on a favourite subject, have unfolded to me several errors, still more material, as they concern the reasoning branch of my subject. These I blush for; and yet, to acknowledge an erroneous opinion, sits lighter on my mind than to persevere in it.

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CONTENTS

      VOLUME I.

      Introduction,

      BOOK I.

      Powers of a court of equity derived from the principle of justice,

      PART I. Powers of a court of equity to remedy the imperfections of common law with respect to pecuniary interest, by supplying what is defective, and correcting what is wrong,

      CHAP. I. Powers of a court of equity to remedy what is imperfect in common law, with respect to the protecting individuals from harm,

      SECT. 1. Harm done by a man in exercising a right or privilege,

      SECT. 2. Harm done by one who has it not in view to exercise any right or privilege,

      SECT. 3. A man tempted or overawed by undue influence to act knowingly against his interest,

      Art. 1. Where a man, yielding to a temptation, acts knowingly against his interest,

      Art. 2. Where a man is overawed to act knowingly against his interest,

      SECT. 4. A man moved to act unknowingly against his interest, by fraud, deceit, or other artificial means,

      SECT. 5. What remedy is applied by a court of equity against the wrongs above stated,

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      CHAP. II. Powers of a court of equity to remedy what is imperfect in common law, with respect to protecting the weak of mind from harming themselves by unequal bargains and irrational deeds,

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

      SECT. 1. Connections that make benevolence a duty when not prejudicial to our interest,

      SECT. 2. Connections that make benevolence a duty even against our interest,

      Art. 1. Connections that entitle a man to have his loss made up out of my gain,

      Art. 2. Connections that entitle a man who is not a loser to partake of my gain,

      Art. 3. Connections that entitle one who is a loser to be indemnified by one who is not a gainer,

      CHAP. IV. Powers of a court of equity to remedy what is imperfect in common law with respect