INTRODUCTION.

CONSIDERING the many Treatises which have been published in England, on the elements and practice of the Court of Equity, calculated not only to illustrate and explain the sublime principles of that tribunal, but to trace them up from the earliest period of juridical annals, it is a matter of no small surprize, that no attempt of this kind has been made in the United States, notwithstanding the period of time in which this court has been established, the importance which it has attained, and the peculiar spirit of public discussion and inquiry, which pervades every branch of our government;-for whatever difficulty might have arisen between the crown of England and its colonial assemblies, as to the right of creating this court, since its establishment in this state, it has always been considered a tribunal not only of great utility, but the venerable palladium of our legal rights.

That no treatise on the English practice can be applicable to our courts, is obvious to any person who has examined into the variance of the laws and institutions of both countries; and that every attempt to complete a treatise of this kind, must require more time and labour than is compatible with the situation of every professional gentleman to bestow on it; considering the novelty of the undertaking, and the variety and crude state of the materials he has to collect, digest and arrange, in order to form them into a system.

From difficulties like these, the compiler has engaged in this undertaking with great diffidence; by the advice of his friends, he has committed the result of his labours to the press, and ardently hopes that it will be found of some use to the junior part of the profession, and received with much indulgence by the public.

In preparing this Treatise, the compiler has endeavoured to be as concise and perspicuous as possible, and has made it his chief study to combine the principles and practice in every part of it, where it appeared necessary; and instead of attempting to account for the origin of this court, or the various modifications it has undergone in that country from which it has descended to us by inheritance, considering this part of the subject wrapt up in some obscurity, and perhaps of little or no importance to the reader, or of enumerating every object of juridical investigation, which in the language of Grotius, the law does not exactly define, he has contented himself in giving an historical sketch of its introduction into this state, and the manner in which its duties were administered, till the time of the Revolution.

*The organization of this court took place some time in the year 1701, by an ordinance of the Lords of Trade in England, and its duties were vested in the governor and council, under the colonial government; for a long time after its establishment, it became very obnoxious to the colonial assemblies, and laid the foundation of many difficulties between them and the executive, on the ground of constitutional rights.

* See Smith's History of New-York, pages 98 and 253. 1 V R. L. 494. in notis. In 1752, the officers of the court were two masters, two clerks, one examiner, a register, and a sergeant at arms.

In these contentions, the assembly maintained that the powers of creating a Court of Chancery, in the then province of New-York, were constitutionally vested in them, and in no other tribunal-on the other hand it was contended, that it belonged to the prerogative of the crown, to establish in its colonies such courts as might be deemed expedient. Owing to the opposition from the assemblies, as well as their own inexperience in equity proceedings, few of the governors had either ambition or inclination to undertake the duties of so unpopular an office, and consequently the business of this court was for a long time much neglected.

The incapacity of the assemblies in the formation of laws and regulations for the government of this court was equally palpable, and from hence arose an early introduction of English practice and forms, which have been generally used and perpetuated, as far as our local situation and institutions would permit, till the time of the Revolution, when this court was duly adopted under the constitution of this state, and a Chancellor appointed, who holds his office during good behaviour, or until he arrives at the age of sixty years.

On the 17th day of October, 1777, Robert R. Livingston was appointed to this office, and on the 28th of October, 1801, he was succeeded by John Lansing, junior. After discharging the duties of Chief Justice for several years, the present Chancellor Kent, came into office on the 25th of February, in the year 1814. In the character of Judge, besides his great promptness in despatching business, his decisions afford a convincing proof of his great law knowledge, extensive erudition, as well as fine classical taste, nor does his

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greatness diminish by his elevation to the office of Chancellor, in which, he appears to distinguish himself not only for the promptness and the equity of his decrees, but for the reduction of the dilatory proceedings of his court into a compendious system, calculated to curtail many of its expenses, as well as expedite the due administration of justice.

The compiler, in closing this Introduction, begs leave to return his most sincere thanks to those gentlemen of the profession, who have assisted him in this little work, and in an especial manner to the Honorable Cadwallader D. Colden, Mayor of the city, who has politely furnished him with some of its outlines, as well as useful materials; a character highly distinguished both as a scholar, a jurist, and a gentleman ;— and to James Stoughton, Esq. whose assistance he experienced to be all important in its execution.