mitted the parties to teftify in their own cafes, in actions of book debt and they authorised the taking of depofitions in all civil cafes. These amendments or alterations of the common law, cut off a vast branch of the jurifdiction of courts of equity. It rendered unneceflary an application to equity for relief against penalties, and the whole bufinefs of account, with all their incidents, could be fettled at law. A convenient mode of obtaining the teftimony of witnefies, when too infirm, or remote to attend in perfon was introduced, and as ufes and trufts, were never introduced, equity d but little concern with real property. Thele improvements were introduced by flatute, and the courts of law acting upon enlarged views and liberal principles, in granting relief, the bufinefs of a court of equity was reduced to a much narrower compaís here, than in England. But the bufinefs of this kind encreafing with the population of the country, the legislature thought it proper and convenient, to delegate the principal part of their equitable jurifdiction to a diferent tribunal, instead of erecting a court for this purpose, and vesting it with all the powers of a court of equity, in imitation of the court of chancery in England, they fuppofed it to be more proper to annex to the powers of the legal tribunals thea in being, the powers of a court of equity. If the good of the community required the perpetuation of the diftinction, between law and equity, they ought to be adminiftered by diftinét tribunals: but as this diftinétion in many inftances is merely verbal, and in all, the jurifliction might be blended, it is strictly proper, that thefe different powers fhould be vetted in the fame tribunal, for the purpose of forming a coalition. The legislature by ftatute, difburdened itself of the principal part of its equitable power, and as the law now ftands, the fuperior court has jurifdiction of all matters exceeding one hundred pounds and not exceeding fixteen hundred; and the county courts in all matters, not exceeding one hundred pounds, the legislature having referved all matters exceeding fixteen hundred pounds. No appeal lies, but writs of error will lie as at law. CHAP. CHAPTER SECOND. OF THE DISTINCTION BETWEEN LAW AND EQUITY THE idea of a diftinction between law and equity, which have the fame object in view, to difpenfe juftice, feems at firft fingular and inexplicable. We fhould think, that having but one object, their powers would be blended, and that their principles would be precisely the fame. But we find that there are courts of justice in being, which have the fame objects of jurifdiction on different principles, and which not only furnish different modes of relief in the fame cafe, but one has the power to counteract the proceedings and vacate the judgments of the other. To explain the difference between law and equity in order to obtain clear and accurate ideas refecating equity, will be the fubject of this chapter. Two jurifts of great eminence, have published very different fentiments on this fubject. Lord Kaims, in his principles of equity lays it down as a general maxim, that the province of a court of equity, is to abate the rigor, and fupply the defects of the law, Sir William Blackftone, in his commentaries on the laws of England, controverts this doctrine, and endeavours to prove that law and equity, are effentially founded on the fame principles, and that the difference between them, refults from the mode of trial, the mode of proof, and the mode of relief. The idea of Lord Kaims, is the fame as that of Lord Bacon, and which feems generally to have been entertained respecting that court but is not perfectly correct and juft. To affert that courts of equity have the power to abate the rigor and fupply the defects of law, in general terms, is not ftrictly true, and Blackfone, by a number of inftances which he has adduced, has clearly proved the contrary. There are many inftances in which the judgment of a court of law, may bear hard and the party upon yet no relief can be obtained. There are forme cafes where a ftatute of limitation may bar a just demand, under fuch circumftances as appear very inequitable, yet a court of equity cannot furnish relief. It is however equally evident that there are cafes where courts of equity can correct the injuftice, and relieve again the judgments of law as well as furnish remedies, which are beyond the reach of the law. Το To affert as judge Blackstone has done, that equity differs from law only, in respect of the mode of trial, proof and relief, will be found variant from the truth. It is true that they materially dif fer in the points which he enumerates, but it is equally true that they differ in many other refpects. The whole of the jurifdiction of the court of equity was acquired by the affumption of the principle, of deciding according to confcience in the administration of justice, where the courts of law furnished no redress, or their judgments were hard and oppreffive, and it is on this broad basis, that the court of equity now refts its authority. In England, courts of law will render judgment on a bond for the whole penalty, without regarding the fum due in justice: But a court of equity from a regard to juftice, will decree the payment of the principal and intereft only. Where a contract has been executed in legal form, a court of law muft on a breach of it render judgment for the damages but a court of equity tho the contract be binding at law, will not decree a fpecific performance of it, if it be unreasonable and obtained by fraud, or taking an unfair advantage of the party. There is a fubftantial difference in principle, between courts of law and equity. Courts of law have adhered to positive rule, tho the confequence was, that in particular cafes, their judgments contravened the principle of justice; courts of equity have disregarded pofitive rules for the purpose of attaining compleat juftice. It is evident, that Blackstone, to avoid the abfurdity of the common diftinction between law and equity, has given a defcription of the court of equity, which is more favourable to the pofition he was labouring to fupport, than to the truth. It is manifeft, if we give to this court that latitude of discretion, which Lord Kaims has done, that it would be able to set aside the law, and throw every thing afloat. As the writings of these eminent authors, are calculated to lead us into mistakes refpecting a fubject of great im. portance, it is neceflary that we fhould guard against it, by obtaining precife ideas refpecting the diftinction between law and equity, and accurate definitions of the jurifdictions of courts.Perhaps the following illuftration of the power of a court of equity, will be found to correfpond with the truth. A A court of equity, acting according to the dictates of confcience, and aiming at the attainment of abstract right, and perfect juftice, has power to abate the rigor, correct the injuftice and fupply the deficiency of pofitive law, where fuch rigor, injustice, or deficiency refult as an indirect and collateral confequence, and operation of law; and where it is apparent, that such effect was not the defign and intent of the law; but if the legislator had forefeen it, he would have made provifion for relief. But where the matter complained of, flows as a direct and neceflary confequence from the principle of law, adapted upon a calculation to promote the general good, a court of equity has no power to interpofe. This limitation is a proper restraint upon the boundless difcretion given to that court, by the general terms uied by Lord Kaims, and at the fame time gives them an equitable power, which is denied by Blackstone. In the foregoing chapter, I have had occafion to illuftrate this principle, by fhewing that courts of equity originated from the impolitic conduct of courts of law in denying relief, in cafes where juftice required. This was pot a neceffàry and natural confequence of civil inftitutions, as fome have fuggefted; but was owing to an accidental and uncommon combination of events; for fuch a tribunal has never existed in any country, but England. In the Roman law, which has been celebrated for its wisdom and juftice, no fuch tribunal was known but the pretor, in the adminiftration of law, exercised in fubítance, the power affumed by the court of chancery in England. This demonftrates the practicability of blending legal and equitable powers, and of adminiftering juftice on the broadeft bafis by one tribunal. As equity is only an improvement, or extention of the principles of law, it is neceffary that we obtain a thorough knowledge of law to comprehend the ground of equity. In the earliest periods of fociety, we find, that effectual provision is made to guard and protect the rights, that refpect the perfons of the citizens of courfe equity has never any occasion to interpofe : in k Jus prætorium eft quod prætores introduxerunt, adjuvandi vel fupplendi, vel corrigendi, juris civilis gratia, propter utilitatem, publicans. 1. 7. 1. de juftitia et jura : in regard to thefe but as the rights of property, are of a more complicated nature, and varying in importance, according to the progrefs of fociety, we find they require a longer period before the regulations refpecting them can be matured to perfection. This has rendered them the proper object of equitable animadverfion, and of courfe property is the only fubject of equitable jurifdiction. CHAPTER THIRD. OF THE GENERAL PRINCIPLES OF EQUITY. IN handling this fubject, we must confider not only the prin-i ples, which have been fyftematized by practice; but the nature of that power by which equity may extend further relief, and provide new remedies. Courts of equity when they have affumed any branch of jurifdiction, have by a feries of decifions, adopted and established confiftent and uniform rules, and in due time have proceeded with the fame precision and certainty as at law. In thefe cafes we have no occafion to recur to original principles. It is fufficient to clafs, arrange, and fyftematize the bufinefs in fuch a manner, as to unfold it in a clear point of light and it is upon this branch of the subject, that our future enquires are chiefly to be employed. In this ftate, the jurifdiction of courts of equity, over a variety of subjects, is as well known, and as definite as that of law. But fill we muft keep in view, the original principle that gave birth to this jarifdiction for from the nature of equity, there must be a power perpetually exifting, and capable at all times to be called into exercife, and to furnish whenever new cafes arife a remedy on the broad bafis of abftract right. The poffible extent of this power can never be known and calculated. It may be fuppofed to be employed on new fubjects, enlarging the equitable jurifdiction, and exhibiting the exercife of a power that furnithes relief correfpondent to the growing neceflities and progreffive improvements of mankind.— Whenever this power, has by its operation, established remedies for every poffible injury that a man can fuftain, and for every cafe in which the public authority ought to interpofe, then the reafon for |