Principles of Equity. Henry Home, Lord Kames

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