be rejected altogether, or be admitted to a considerable extent to overturn these principles.1

1 In Parker v. Dee, (2 Chan. Cas. 200,) the bill was against an Executor for a discovery of assets, and payment; and relief was decreed by Lord Nottingham. In Bishop of Winchester v. Knight, (1 P. Will. 406,) the bill was for a discovery and an account of ore, dug by a tenant during his life, and by his heir, against the Executor and Heir; and the Court maintained the suit, directing a trial at law, and after the trial granted relief. In Story v. Lord Windsor, (2 Atk. 630,) the bill was for an account of the profits of a colliery, upon a legal title asserted by the Plaintiff; Lord Hardwicke sustained the bill for the account, because (he said) this is not a title of land, but of a colliery, which is a kind of trade; and therefore an account of the profits may be taken here. (See also Jesus College v. Bloom, 3 Atk. 262.) The same learned Chancellor, in Sayer v. Pierce, (1 Ves. 232,) seems to have proceeded on the same ground, holding, that the party, being out of possession of lands, generally was not entitled to maintain a bill for an account of profits alone; but he retained the bill in that case, directing a trial at law, upon the ground, that it asked to ascertain boundaries. In Lee v. Alston, (1 Bro. Ch. R. 194,) a bill for an account of timber, cut by a tenant for life, impeachable for waste, was entertained by Lord Thurlow, and relief granted. In Jesus College v. Bloom, (3 Atk. 262; S. C. Ambler, R. 54,) which was a bill for an account and satisfaction for waste, in cutting down timber before the assignment, against an assignee of the lessee of the Plaintiffs, Lord Hardwicke said, "Upon the opening of the case, the bill seems improper, and an action of trover is the proper remedy. Where the bill is for an injunction, and waste has been already committed, the Court, to prevent a double suit, will decree an account and satisfaction for what is past." And because the bill sought an account only against the assignee for waste before the assignment, and without praying an injunction, his Lordship dismissed the bill. The same point was held in Smith v. Cook, 3 Atk. R. 378, 381. In Geast v. Barker, (2 Bro. Ch. 61,) the bill was for a discovery of the quantity of coal and coke, sold from a mine let by Plaintiff to Defendant upon a reservation of one shilling for every stack of coal sold, &c., and prayed an issue, to try what quantity a stack should contain, and suggested a custom of the country. The Master of the Rolls (Lord Kenyon) said, if it were now necessary either to decree account, or dismiss the bill, he would do the latter, as he was clear the remedy was at law. (S. C. cited in Harwood v. Oglander, 6 Ves. 225.) Why the remedy and account should not be given in Equity, is not stated; and it is difficult to see; since it is clear, that the bill was good for the discovery, and it was obtained. In Sloane v. Heatfield, (Bunb. R. 18,) the bill was for a discovery of treasure-trove, and relief; and the Court held it good for discovery; but that the Plaintiff could not have relief; because he might bring trover at law. In Ryle v. Haggie, (1 Jac. & Walk. 234,) an opposite course was adopted, upon the professed ground of avoiding a multiplicity of suits, the party having a good ground to seek a discovery, and there being a remedy at law. In the Duke of Leeds v. New Radnor, (2 Bro. Ch. R. 338, 519,) Lord Thurlow reversed the decree of the Master of the Rolls, denying relief, because there was a remedy at law, upon the ground, that the bill being retained for a year, the right to grant relief in Equity was thus far admitted, and it ought to give entire relief. See Mr. Fonblanque's Comment on this case, in 1 Fonbl. Eq.

§ 70. But when we depart from matters of fraud, accident, mistake, and account, as the foundations of a suit in Equity, it is far more difficult to ascertain the boundary, where the right of a Court of Equity to entertain a bill for relief, as consequent upon the jurisdiction for discovery, begins, and where it ends.1 The difficulty is increased by the recent rule adopted in the Courts of Equity in England, (of which we shall have occasion to speak more fully hereafter,) that if the party seeks relief as well as discovery, and he is entitled to discovery only, a general demurrer will lie to the whole bill. The effect of this rule is, that a plaintiff may be compelled, in a doubtful case, to frame his bill for a discovery in the first instance, and having obtained it, may be compelled to ask leave to amend, (which will not ordinarily be granted, unless it is clear that the proper relief is in Equity,) and then may try the question whether he is entitled to relief or not.2

§ 71. In America, a strong disposition has been shown to follow out a convenient and uniform principle of jurisdiction, and to adhere to that which seems formerly (as we have seen) to have received the approbation (88) of Lord Nottingham.3 The principle is, that where the jurisdiction once attaches for discovery, and the discovery is actually obtained, the Court will farther entertain the bill for relief, if the plaintiff prays it. This has been broadly asserted in many cases, and certainly possesses the recommendation of simplicity and uniformity of application; and escapes from what seems to be the capricious and unintelligible line of demarcation, pointed out in the English authorities. Thus it has been laid down in the Courts of New York, upon more than one

B. 1, ch. 3, § 3, note (g), p. 156. See Mr. Blunt's note to the case of Jesus College v. Bloom, Ambler, 54; 1 Fonbl. Eq. B. 1, ch. 3, § 3, note (g). 'See Ryle v. Haggie, 1 Jac. & Walk. 234.

2 Mitford, Eq. Pl. by Jeremy, p. 183, 184, note (n); Cooper, Eq. Pl. ch. 1, § 3, p. 58; Id. ch. 3, § 3, p. 188. Story on Equity Pleadings, § 312, and note (1); Lousada v. Templer, 2 Russ. R. 564; Frietas v. Don Santos, 1 Y. & Jerv. 577; Severn v. Fletcher, 5 Sim. R. 457.

3 Ante, § 65, note ($).

occasion, as a settled rule, that when the Court of Chancery has gained jurisdiction of a cause for one purpose, it may retain it generally for relief.1 A similar doctrine has been asserted in other states;2 and it has been affirmed in the Supreme Court of the United States. On one occasion it was laid down by the last-named Court, "that, if certain facts, essential to the merits of a claim purely legal, be exclusively within the knowledge of the party, against whom that claim is asserted, he may be required in a Court of Chancery to disclose those facts; and the Court, being thus rightly in possession of the cause, will proceed to determine the whole matter in controversy.' "3

72. This doctrine, however, though generally true, is not to be deemed of universal application. To justify a Court of Equity in granting relief as consequent upon discovery in cases of this sort, it seems necessary that the relief should be of such a nature as a Court of Equity may properly grant in the ordinary exercise of its authority. If, therefore, the proper relief be by an award of damages, which can alone be ascertained by a Jury, there may be a strong reason for declining the exercise of the jurisdiction, since it is the appropriate function of a Court of Law to superintend such trials. And, in many other cases, where a question arises, purely of matters of fact fit to be tried by a Jury, and the relief is dependent upon that question, there is equal reason that the jurisdiction for relief should be altogether declined; or, at all events, that if the bill is retained, a trial at law should be directed by the Court, and relief granted, or withheld, according to the final issue of the trial. Thus, if a bill seeks the discovery of a contract of sale of goods and

1 Armstrong v. Gilchrist, 2 John. Cas. 424; Rathbone v. Warren, 10 John. R. 587, 596; King v. Baldwin, 17 John. R. 384. See also Leroy v. Veeder, 1 John. Cas. 417; S. C. 2 Cain. Cas. in Err. 175; Hepburn v. Dundas, 1 Wheat. R. 197; Ludlow v. Simond, 2 Cain. Err. 1, 38, 51, 52.

2 Chichester's Executor v. Vass's Administrator, 1 Munf. R. 98; Isham v. Gilbert, 3 Connect. R. 166; Ferguson v. Waters, 3 Bibb. 303; Middletown Bank v. Russ, 3 Connect. R. 139.

3 Russell v. Clarke's Executors, 7 Cranch, 69.

Middletown Bank v. Russ, 3 Connect. R. 135, 140; Id. 166.

chattels, or of a wrongful conversion of goods and chattels ; and the breach of the contract, or the conversion of the goods and chattels, is properly remediable in damages, to be ascertained by a Jury, the relief seems, properly, to belong to a Court of Law. In like manner, questions of fraud in obtaining and executing a will of real estate, and many cases of controverted titles to real estate, dependent partly on matters of fact, and partly on matters of law, are properly tryable in an ejectment, and may well be left to the common tribunals.1 And it has accordingly been laid down in some of the American Courts, that, under such circumstances, where the verdict of a Jury is necessary to ascertain the extent of the relief, the Plaintiff should be left to his action at law, after the discovery is obtained.2

§ 73. The distinction here pointed out, furnishes a clear line for the exercise of Equity Jurisdiction in cases where relief is sought upon bills of discovery; and if it should receive a general sanction in the American Courts, it will greatly diminish the embarrassments which have hitherto attended many investigations of the subject. In the present state of the authorities, however, little more can be absolutely affirmed than these propositions; first, that in bills of discovery, seeking relief, if any part of the relief sought be of an equitable nature, the Court will retain the bill for complete relief; secondly, that in matters of account, fraud, mistake, and accident, the jurisdiction for relief will, generally, but not universally, be retained and favoured; and thirdly, that in cases where the remedy at law is more appropriate than the remedy in Equity, or the verdict of a Jury is indispensable to the relief sought, the jurisdiction will either be declined, or, if retained, will be so, subject to a trial at law.

§ 74. From what has been already stated, it is manifest that the jurisdiction, in cases of this sort, attaches in Equity solely on the ground of discovery. If, therefore, the discovery

1 Jones v. Jones, 3 Meriv. R. 161.

2 Lynch v. Sumrall, 1 Marsh. Kentuck. R. 469.

is not obtained, or it is used as a mere pretence to give jurisdiction, it would be a gross abuse to entertain the suit in Equity, when the whole foundation on which it rests, is either disproved, or it is shown to be a colourable disguise for the purpose of changing the forum of litigation. Hence, to maintain the jurisdiction for relief, as consequent on discovery, it is necessary, in the first place, to allege in the bill, that the facts are material to the plaintiff's case, and that the discovery of them by the defendant is indispensable, as proof; for if the facts lie within the knowledge of witnesses, who may be called in a Court of Law, that furnishes a sufficient reason for a Court of Equity to refuse its aid. The bill must, therefore, allege (and, if required, the fact must be established,) that the plaintiff is unable to prove such facts by other testimony.' In the next place, if the answer wholly denies the matters of fact, of which discovery is sought by the bill, the latter must be dismissed; for the jurisdiction substantially fails by such a denial.2

CHAPTER IV..

CONCURRENT JURISDICTION OF EQUITY.-ACCIDENT.

75. HAVING disposed of these matters, which may in some sort be deemed preliminary, the next inquiry which will occupy our attention is, to ascertain the true boundaries of the jurisdiction at present exercised by Courts of Equity. The subject here naturally divides itself into three great heads, the concurrent, the exclusive, and the auxiliary or

1 Gelston v. Hoyt, 1 John. Ch. R. 543; Seymour v. Seymour, 4 John. Ch. R. 409; Pryor v. Adams, 1 Call, R. 382; Duvalls v. Ross, 2 Munf. R. 290, 296; Bass v. Bass, 4 H. & Munf. 478.

2 Russell v. Clarke's Executors, 7 Cranch, 69; Ferguson v. Waters, 3 Bibb, R. 303; Nourse v. Gregory, 3 Litt. R. 378; Robinson v. Gilbraith, 4 Bibb,

R. 184.