TO THE HONOURABLE

WILLIAM PRESCOTT, LL.D.

SIR,

It affords me sincere gratification to be allowed to dedicate this work to you, upon your retirement from the Bar, of which you have been so long a distinguished ornament. More than one third of a century has elapsed, since, upon my first admission to practice, I had the honour of forming an acquaintance with you, which has ripened into a degree of friendship, of which I may be truly proud. It has been my good fortune through the whole intermediate period to have been a witness of your professional labours ;-labours equally remarkable for the eminent ability, untiring research, profound learning, and unsullied dignity, with which they were accompanied. They have brought with them the just reward due to a life of consistent principles, and public spirit, and private virtue, in the universal confidence and respect which have followed you in your retreat from the active scenes of business. This is a silent but expressive praise, whose true value is not easily over-estimated. I trust that you may live many years to enjoy it, for the reason so finely touched by one of the great Jurists of Antiquity -Quia Conscientia bene actæ vitæ, multorumque benefactorum Recordatio jucundissima est.

Cambridge, December, 1835.

JOSEPH STORY.

PREFACE.

THE present work embraces another portion of the labours, devolved upon me by the Founder of the Dane Professorship of Law in Harvard University. In submitting it to the Profession, it is impossible for me not to feel great diffidence and solicitude, as to its merits, as well as to its reception by the public. The subject is one of such vast variety and extent, that it would seem to require a long life of labour to do more than to bring together some of the more general elements of the System of Equity Jurisprudence, as administered in England and America. In many branches of this most complicated System, composed (as it is) partly of the principles of natural law, and partly of artificial modifications of those principles, the ramifications are almost infinitely diversified; and the Sources, as well as the Extent, of these branches, are often obscure and ill defined, and sometimes incapable of any exact development. I have endeavoured to collect together, as far as my own imperfect studies would admit, the more general principles belonging to the System in those branches, which are of daily use and practical importance. My main object has been to trace out and define the various sources and limits of Equity Jurisdiction, as far as they may be ascertained by a careful examination of the Authorities, and a close Analysis of each distinct ground of that Jurisdiction, as it has been practically expounded and applied in different ages. Another object has been to incorporate into the text some of the leading doctrines, which guide and govern Courts of Equity in the exercise of their jurisdiction; and especially in those cases, where the doctrines are peculiar to those Courts, or are applied in a manner unknown to the Courts of Common Law. In many cases I have endeavoured to show the reasons, upon which these doctrines are founded; and to illustrate them by principles drawn from foreign jurisprudence, as well as from

the Roman Civil Law. Of course the reader will not expect to find in these Commentaries a minute, or even a general, survey of all the doctrines belonging to any one branch of Equity Jurisprudence; but such expositions only, as may most fully explain the Nature and Limits of Equity Jurisdiction. In order to accomplish even this task in any suitable manner, it has become necessary to bestow a degree of labour in the examination and comparison of authorities, from which many jurists would shrink, and which will scarcely be suspected by those who may consult the work only for occasional exigencies. It will be readily seen, that the same train of remark, and sometimes the same illustrations, are repeated in different places. As the work is designed for elementary instruction, this course seemed indispensable, to escape from the inconvenience of perpetual references to other passages, where the same subject is treated under other aspects.

The work is divided into three great heads. First, the Concurrent Jurisdiction of Courts of Equity; secondly, the Exclusive Jurisdiction; and thirdly, the Auxiliary or Assistant Jurisdiction. The Concurrent Jurisdiction is again subdivided into two branches; the one, where the subject-matter constitutes the principal (though rarely the sole) ground of the Jurisdiction; the other, where the peculiar remedies administered in Equity, constitute the principal (though not always the sole) ground of jurisdiction. The present volume embraces the first only of these branches of Concurrent Jurisdiction. The remaining subjects will be fully discussed in the succeeding volume. I hope also to find leisure to present, as a fit conclusion of these Commentaries, a general review of the Doctrines of Equity Pleading, and of the Course of Practice in Equity Proceedings.

In dismissing the work to the indulgent consideration of the Profession, I venture to hope, that it will not be found, that more has been promised than is performed; and that if much has been omitted, something will yet be found to lighten the labours of the inquisitive, if not to supply the wants of the learned.

Cambridge, Mass., December, 1835.