thors of all countries, where the question is the object of that law as in cafe of the privileges of embassadors ", hoftages, or ranfom-bills". In mercantile tranfactions they follow the marine law °, and argue from the ufages and authorities received in all maritime countries. Where they exercife a concurrent jurisdiction, they both follow the law of the proper forum: in matters originally of ecclefiaftical cognizance, they both equally adopt the canon or imperial law, according to the nature of the fubject; and, if a question came before either, which was properly the object of a foreign municipal law, they would both receive information what is the rule of the country; and would both decide accordingly. SUCH then being the parity of law and reafon which governs both fpecies of courts, wherein (it may be asked) does their effential difference confift? It principally confifts in the different modes of administering justice in each; in the mode of proof, the mode of trial, and the mode of relief. Upon thefe, and upon two other accidental grounds of jurifdiction, which were formerly driven into those courts by narrow decifions of the courts of law, viz. the true conftruction of fecurities for money lent, and the form and effect [437] of a truft or fecond ufe; upon these main pillars hath been gradually erected that structure of jurifprudence, which prevails in our courts of equity, and is inwardly bottomed upon the fame fubftantial foundations as the legal fyftem which hath hitherto been delineated in these commentaries; however different they may appear in their outward form, from the different tafte of their architects. 1. AND, firft, as to the mode of proof. When facts, or their leading circumstances, reft only in the knowlege of the party, a court of equity applies itself to his confcience, and purges him upon oath with regard to the truth of the tranf 437 action; and, that being once discovered, the judgment is the fame in equity as it would have been at law. But, for want of this discovery at law, the courts of equity have acquired a concurrent jurifdiction with every other court in all matters of account'. As incident to accounts, they take a concurrent cognizance of the administration of perfonal affets', confequently of debts, legacies, the distribution of the refidue, and the conduct of executors and administrators". As incident to accounts, they also take the concurrent jurifdiction of tithes, and all questions relating thereto; of all dealings in partnership, and many other mercantile tranf actions; and fo of bailiffs, receivers, factors, and agents. It would be endless to point out all the several avenues in human affairs, and in this commercial age, which lead to or end in accounts. FROM the fame fruitful fource, the compulfive difcovery upon oath, the courts of equity have acquired a jurisdiction over almost all matters of fraud; all matters in the private knowlege of the party, which, though concealed, are binding in confcience; and all judgments at law, obtained through fuch fraud or concealment. And this, not by impeaching or reverfing the judgment itself, but by prohibiting the plaintiff from taking any advantage of a judgment, obtained by fuppreffing the truth; and which, had the fame facts appeared on the trial, as now are discovered, he would never have obtained at all. 2. As to the mode of trial. This is by interrogatories administered to the witneffes, upon which their depofitions are taken in writing, wherever they happen to refide. If therefore the cause arifes in a foreign country, and the witnesses refide upon the spot; if, in causes arifing in England, the witneffes are abroad, or shortly to leave the kingdom; or if 31 Chan. Caf. 57. t2 P. Wms. 145, u 2 Chan. Caf. 152. WI Equ. Caf. abr. 367. x 2 Vern. 277. Y 2 Vern. 638. 2 Chan. Caf. 46. a 3 P.Wms. 148. Yearbook, 22 Edw. IV. 37. pl. 21. [438] WOL. III. I i witnesses Book III. witneffes refiding at home are aged or infirm; any of these cafes lays a ground for a court of equity to grant a commiffion to examine them, and (in consequence) (6) to exercise the fame jurifdiction, which might have been exercised at law, if the witneffes could probably attend. 3. WITH refpect to the mode of relief. The want of a more specific remedy, than can be obtained in the courts of law, gives a concurrent jurifdiction to a court of equity in a great variety of cafes. To inftance in executory agreements. A court of equity will compel them to be carried into strict execution, unless where it is improper or impoffible; inftead of giving damages for their non-performance. And hence a fiction is established, that what ought to be done fhall be confidered as being actually done, and shall relate back to the time when it ought to have been done originally and this fiction is so closely pursued through all it's confequences, that it neceffarily branches out into many rules of jurifprudence, which form a certain regular system. So, of wafte, and other fimilar injuries, a court of equity takes a concurrent cognizance, in order to prevent them by injunction. Over questions that may be tried at law, in a great multiplicity of actions, a court of equity affumes a juris[ 439 ] diction, to prevent the expense and vexation of endless litiga (6) The learned Judge has certainly fallen into an error, if he means to affert, that where a court of equity will grant a commiffion to examine witnesses, whofe attendance cannot be procured to give testimony in a court of common law, it will in such case also grant relief. For though it is very ufual to file a bill praying a discovery, and that a commiffion may be issued to examine witnesses who live abroad, no doubt can be entertained that if the bill proceeded to pray relief, and that relief was such as a court of law was fully competent to adminifter, a demurrer to the bill would hold, unlefs it was a cafe where the courts exercife a concurrent Jurifdiction. tions and fuits. In various kinds of frauds it affumes a concurrent f jurifdiction, not only for the fake of a discovery, but of a more extenfive and specific relief: as by fetting afide fraudulent deeds, decreeing re-conveyances, or directing an abfolute conveyance merely to stand as a fecurity'. And thus, lastly, for the fake of a more beneficial and complete relief by decreeing a fale of lands, a court of equity holds plea of all debts, incumbrances, and charges, that may affect it or iffue thereout. 4. THE true conftruction of fecurities for money lent is ano ther fountain of jurisdiction in courts of equity. When they held the penalty of a bond to be the form, and that in substance it was only as a pledge to fecure the repayment of the fum bona fide advanced, with a proper compensation for the ufe, they laid the foundation of a regular feries of determinations, which have fettled the doctrine of perfonal pledges or fecurities, and are equally applicable to mortgages of real property. The mortgagor continues owner of the land, the mortgagee of the money lent upon it: but this ownership is mutually transferred, and the mortgagor is barred from redemption, if, when called upon by the mortgagee, he does not redeem within a time limited by the court; or he may when out of poffeffion be barred by length of time, by analogy to the statute of limitations. 5. THE form of a trust, or fecond ufe, gives the courts of equity an exclusive jurisdiction as to the subject-matter of all fettlements and devifes in that form, and of all the long terms created in the prefent complicated mode of conveyancing. This is a very ample fource of jurifdiction: but the truft is governed by very nearly the fame rules, as would govern the eftate in a court of law', if no trustee was interpofed; and, by a regular positive system established in the courts of equity, [ 440 ] the doctrine of trufts is now reduced to as great a certainty as that of legal estates in the courts of the common law. THESE are the principal (for I omit the minuter) grounds of the jurifdiction at prefent exercifed in our courts of equity: which differ, we fee, very confiderably from the notions entertained by strangers, and even by thofe courts themselves before they arrived to maturity; as appears from the princi ples laid down, and the jealousies entertained of their abuse, by our early juridical writers cited in a former page; and which have been implicitly received and handed down by fubfequent compilers, without attending to thofe gradual acceffions and derelictions, by which in the courfe of a century this mighty river hath imperceptibly shifted it's channel. Lambard in particular, in the reign of queen Elizabeth, lays it down", that "equity fhould not be appealed unto, "but only in rare and extraordinary matters: and that a "good chancellor will not arrogate authority in every com"plaint that shall be brought before him, upon whatsoever "fuggeftion: and thereby both overthrow the authority of "the courts of common law, and bring upon men fuch a "confusion and uncertainty, as hardly any man should know "how or how long to hold his own affured to him." And certainly, if a court of equity were ftill at fea, and floated upon the occafional opinion which the judge who happened to prefide might entertain of confcience in every particular cafe, the inconvenience, that would arife from this uncertainty, would be a worse evil than any hardship that could follow from rules too ftrict and inflexible. It's powers would have become too arbitrary to have been endured in a country like this, which boasts of being governed in all refpects by law and not by will. But fince the time when Lambard wrote, a set of great and eminent lawyers, who have fuc ceffively held the great feal, have by degrees erected the sys tem of relief administered by a court of equity into a regular [441] fcience, which cannot be attained without study and expe in See page 433- 2 P. Wms. 685, 686. P See page 54, 55, 56. rience, |