but where defendant's sons carried on business, were seized under a judgment against defendant. The sons claimed the goods, but on an interpleader summons their claim was barred. The sons became bankrupt, and defendants promised their trustee that, in consideration of his sons' goods having been seized and sold for a claim against him, he would pay the trustee a sufficient sum to pay his sons' trade creditors in full. In an action by the trustee: Held, (affirming the judgment of Huddleston, B.), that as defendant's own conduct had led to the seizure of the goods, and as he had failed to show that the seizure was wrongful, he was bound to indemnify his sons, and therefore, whether defendant's express promise was legally binding or not, plaintiff was entitled to recover the value of the goods. England v. Marsden, L. Rep. 1 C. P. 529, questioned. [In the judgment of the court, which was read by Lord Justice Lindley, it is said: "The first question is the liability incurred by the defendant to his sons by reason of the seizure of what he has deliberately asserted to be their goods for his debt. That as between the father and sons the goods were theirs, we consider established by the father's own statements. Speaking generally, and excluding exceptional cases, where a person's goods are lawfully seized for another's debt, the owner of the goods is entitled to redeem them, and to be reimbursed by the debtor against the money paid to redeem them, and in the event of the goods being sold to satisfy the debt, the owner is entitled to recover the value of them from the debtor. The authorities supporting this general proposition will be found collected in the notes to Lampleigh v. Brathwait, 1 Smith L. C. 151), and Dering v. Winchelsea, 1 White & Tud. L. C. 106. As instances illustrating its application, reference may be made to the case of a person whose goods are lawfully distrained for rent due from some one else, as in Exall v. Partridge (8 T. Rep. 308), to the case of a surety paying the debt of his principal, to the case where the whole of a joint debt is paid by one only of the joint debtors, to the case where the joint property of a firm is seized for the separate debt of the partners. The right to indemnity or contribution in these cases exists although there may be no agreement to indemnify or contribute, or although there may be in that sense no privity between the plaintiff and the defendant. This is shown by the case of Johnson v. Royal Mail Steam Packet Company (17 L. T. Rep. N. S. 445; L. Rep. 3 C. P. 38), where Willes, J., in delivering the judgment of the court, laid down the law in the following terms: "It has been decided in numerous cases that restraint of goods by reason of non-payment of the debt due by one to another is sufficient compulsion of the law to entitle a person who was paid the debt in order to relieve his goods from such restraint to sustain a claim for money paid." L. Rep. 3 C. P. at p. 45. But it is obvious that the right may be excluded by contract as well as by other circumstances. Where the owner of the goods seized is as between himself and the person for whose debt they were seized liable to pay the debt, it is plain the general rule is inapplicable, and this explains the case of Griffinhoofe v. Daubuz. There the plaintiff, who was the tenant of the defendant, sued him to recover the value of a stack of wheat distrained for tithe rent charge. The declaration alleged that the defendant was liable to pay, and ought to have paid, this rentcharge. The defendant, on the other hand, denied this alleged liability, and upon this part of the case

the verdict was entered for the defendant, and the defendant succeeded in the action. The plaintiff, without attempting to disturb the verdict, applied for judgment non obstante veredicto, for alleged error on the record, on the ground that, although the defendant was not personally liable to pay the rent charge, yet that his farm and land were liable to pay it, and therefore he ought to indemnify the plaintiff. But it was held that many circumstances might exist rendering the plaintiff the person liable to pay the tithe rent charge, and that having regard to the verdict the record did not show that the defendant was liable to indemnify the plaintiff against it. The court said: "There is no allegation of any privity entitling the plaintiff to recover in any form of action." We are not sure that we quite appreciate the meaning of the word "privity" in this passage; but the truth seems to have been, that the merits as disclosed at the trial were against the plaintiff, and that the court was not disposed to be astute and to give him judgment after his failure at the trial. Another exception to the general rule has been held to exist where the owner of the goods has left them for his own convenience where they could be lawfully seized for the debt of the person from whom he seeks indemnity. England v. Marsden, L. Rep. 1 C. P. 529. The plaintiff in that case seized the defendant's goods under a bill of sale, but did not remove them from the defendant's house. The plaintiff left them there for his own convenience, and they were afterwards distrained by the defendant's landlord. The plaintiff paid the rent distrained for, and brought an action to recover the money from the defendant. The court, however, held that the action would not lie, as the plaintiff might have removed his goods before, and could not in the circumstances be considered as having been compelled to pay the rent. This appears to us a very questionable decision. The evidence did not show that the plaintiff's goods were left in the defendant's house against his consent, and although it is true that the plaintiff only had himself to blame for exposing his goods to seizure, we fail to see how he thereby prejudiced the defendant, or why having paid the defendant's debt in order to redeem his own goods from lawful seizure the plaintiff was not entitled to be reimbursed by the defendant. This decision has been questioned before by Thesiger, L. J., in Ex parte Bishop, 15 Ch. Div. at page 417, and by the late Vaughan Williams, J., in the notes to the last edition of Williams Saunders (vol. 1, p. 36), and we think the decision ought not to be followed. Be the case of England v. Marsden, however, right or wrong, it is distinguishable in its facts from the case now before us. In order to bring the present case within the general principle alluded to above, it is necessary that the goods seized shall have been lawfully seized, and it was contended before us that the son's goods were in this case wrongfully seized, and that the defendant, therefore, was not bound to indemnify them. But when it is said that the goods must be lawfully seized, all that is meant is that, as between the owner of the goods and the person seizing them, the latter shall have been entitled to take them. It is plain that the principle has no application except where the owner of the goods is in a position to say to the debtor that the seizure ought not to have taken place; it is because as between them the wrong goods have been seized that any question arises. Now in this case it has been decided between the owners of the goods seized (i. e., the sons) and the

sheriff seizing them, that the goods were rightfully seized, and although the defendant is not estopped by this decision, and is at liberty, if he can, to show that the seizure was one which the sheriff was not justifled in making, he has not done so. Indeed, the defendant's connection with his sons' business was such as to justify the inference that the sheriff had a right to seize the goods for the defendant's debt; and if in truth any mistake was made by the sheriff, the defendant had only himself to thank for it. His own conduct led to the seizure, and although he did not in fact request it to be made, he brought the seizure about, and has wholly failed to show that the seizure was wrongful on the part of the sheriff. The case, therefore, stands thus: goods which the defendant has admitted in writing to be his sons, have, owing to his conduct, been legally taken in execution for his debt, and the proceeds of sale have been impounded as a security for what is due from him to his execution creditors. The defendant, therefore, was liable to repay to his sons the amount realized by the sale of the goods. This liability the plaintiff, as the sons' trustee in bankruptcy, was in a position to enforce, and he has never released it, or agreed so to do except upon payment of £1,200. The plaintiff is in a position now to enforce that liability, if the defendant succeeds in showing that his express promise is not legally binding upon him. The plaintiff is content to take the £1,200 expressly promised to be paid instead of insisting on his right to the £1,300, and Huddleston, B., has properly given the plaintiff judgment accordingly. The appeal must therefore be dismissed with costs."] Edmunds v. Wallingford, English Court of Appeal, March 18, 1885; 52 Law Times Rep. (N. S.) 722.

8. KIDNAPING. [Wisconsin Statute.]-What Necessary to an Indictment under Wisconsin Statute.The Wisconsin statute on the subject of kidnaping is as follows: "Any person who shall, without lawful authority, forcibly or secretly confine or imprison another within this State, against his will, or who shall forcibly carry or send another out of this State, or from place to place within this State, against his will, and without lawful authority, or who shall, without such authority, forcibly seize, confine, inveigle, or kidnap another, with intent to cause such person to be secretly confined or imprisoned in this State against his will, or to be sent or carried out of this State against his will, or to be sold as a slave, etc., shall be punished by imprisonment in the State prison not more than two years nor less than one year." Rev. St. Wis. 1878, § 4387. An information charging "that on a certain date, at a certain county, W. S. did feloniously, unlawfully, injuriously, willfully, and without lawful authority, forcibly confine and imprison, against his, the said A. B. E.'s, will, and him, the said A. B. E., then and there feloniously, and without any lawful authority, and against his will, forcibly did convey from a certain place in said county to H.'s store, in said county, against the peace, etc.," does not charge the crime of kidnaping within this statute, but merely the common-law offense of false imprisonment, and a party found guilty under such information can only be punished by imprisonment in the county jail not more than one year, or by fine not exceeding $250, as provided by section 4635, prescribing the punishment of a person convicted of an offense, the punishment of which is not prescribed by any statute. [The court examine the following cases: Com. v. Nickerson, 5 Allen, 518;

Com. v. Blodgett, 12 Metc. 56; State v. McRoberts, 4 Blackf. 178; Moody v. People, 20 Ill. 315; Click v. State, 3 Texas, 282.] Smith v. State, S. C. Wis. June 1, 1885; 23 N. W. Repr. 879.

9. MALICIOUS PROSECUTION. [Law and Fact.]Malice and Probable Cause must Concur-Malice may be Inferred-Probable Cause Question of Fact or of Law when.-Both malice and a want of probable cause must concur to warrant a recovery. Malice may be inferred from circumstances. When the facts are not contested and there is no conflict in the evidence, probable cause is a matter of law, otherwise it is a mixed question of law and facts, and must be submitted to the jury under appropriate instructions from the court. [In the opinion of Mr. Commissioner Watts, adopted by the Supreme Court of Texas, these observations occur: "Even though malice may be established, yet it will not unaided support the action; there must be a want of probable cause concurring with the malice before a recovery can be had Among the very best definitions given of probable cause the absence or want of which is essential in actions for malicious prosecution, is that by the Supreme Court of the United States in Wheeler v. Nesbitt (24 How. 545), which is: "The existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted." From this definition it is apparent that the existence, or non-existence of probable cause does not depend upon the prosecutor's belief of the party's guilt or innocence, or the existence of such facts and circumstances as might influence his judgment without regard to the effect it might have upon the judgment of others. Ordinarily probable cause is a question of law. Greenwade v. Mills, 31 Miss. 464; Cloon v. Gerry, 13 Gray, 201; Chapman v. Cawery, 50 Ill. 512; McWilliams v. Hoban, 42 Md. 56; Master v. Deys, 2 Wend. 424. Sweet v. Negers, 30 Mich. 406. When the facts are not contested, and there is no conflict in the evidence directed to that issue, the question of probable cause is a matter of law which is to be decided by the court. But where the facts are contested, or there is a conflict of evidence, then it becomes a mixed question of law and fact and must be submitted to the jury for determination upon appropriate instructions as to the principles of law by which the jury is to be governed in the investigation. [Diggs v. Benton, 44 Vt. 124; Heyne v. Blair, 62 N. Y. 19; Humphries v. Parker, 52 Me. 502; Cole v. Curtis, 16 Minn. 182.] Ramsey v. Arrott, S. C. Texas, June 5, 1885; 5 Texas Law Rev. 393.

10.

[Evidence-Malice.]—Advice of Counsel Admissible on Question of Malice.-In an action for damages for a malicious prosecution, the fact that the defendant instituted the prosecution upon the advice of counsel, to whom all the facts have been submitted, is admissible as tending to show good faith and disprove malice. [In the opinion by Mr. Commissioner Watts, adopted by the court, it is said: In respect to the advice of counsel, as a matter of defence in this character of cases, some confusion is found in the books. Evidence that the facts upon which the party proceeded in instituting and continuing the prosecution were submitted to an attorney who, upon a consideration of all the facts, if fully aud fairly presented without any reservation whatever, advices that they are

sufficient to authorize the prosecution, is entitled to consideration in the determination of the issue of malice. But such evidence does not establish the existence of probable cause. Where good faith upon the part of the prosecutor is shown malice cannot be inferred, hence such evidence is admissible as tending to establish good faith upon the part of the prosecutor, and to repel any inference of malice that might be deduced from circumstances showing a want of probable cause. In Stanton v. Hart (27 Mich. 539), in reference to this character of evidence, it was remarked: "When a person resorts to the best means in his power for information it will be such a proof of honesty as will disprove malice and operate as a defence proportionate to his diligence." It is not true, however, that a resort to professional advice constitutes an independent and substantial defence to the action for malicious prosecution. The defence is that the prosecution was instituted and continued in good faith by the prosecutor, and such evidence is admissible as tending to establish that defence. A resort to professional advice under certain circumstances might be sufficient to establish good faith and repel any inference of malice, but it does not necessarily constitute a conclusive presumption against the existence of malice. Kimball v. Bates, 50 Me. 308; Brown v. Randall, 36 Conn. 56; Ames v. Rathburn, 55 Barb. 194; Glasscock v. Bridges, 15 La. 672; Prough v. Eutriken, 11 Penn. St., 81; King v. Ward, 77 Ill. 603.] Ramsey v. Arrott, S. C. Texas, June 5, 1885; 5 Texas Law Rev. 393.

11. MARRIED WOMEN. [Mortgage.]-Valid, Although Note Creates no Personal Liability.—A mortgage executed by a married woman to secure a note given for the benefit of another is valid, and may be foreclosed, although she would not be liable personally on the note. [In the opinion of the court Campbell, J., said: "There is no restriction under our constitution and statutes which will prevent a married woman from creating express liens on her property, for any lawful purpose that could be the foundation of such action on the part of an unmarried woman. A mortgage to secure another person's debt is valid beyond question. That was really the purpose of this mortgage. The right to enforce a note personally is not necessary to make a mortgage securing it good. The defense of the statute of limitations or bankruptcy may defeat altogether any personal claim, but will not destroy the mortgage lien. Michigan Ins. Co. v. Brown, 11 Mich. 265; McKinney v. Miller,19 Mich. 142; Powell v. Smith, 30 Mich. 451. As defendant saw fit to give an express mortgage security upon a lawful consideration, we do not think it is invalidated by the fact that she cannot be sued on the note. Under the old decisions upon equitable separate estates, such a note would have bound her separate estate without a mortgage. Under our decisions the lien must be express. But there is no reason for holding that such a note will vitiate a security which refers to it as descriptive of the debt secured. The intention of the mortgage is lawful, and the lien on the property is clearly defined. Nothing more is needed to bind the land."] Damon v. Reeves, S. C. Mich., June 10, 1885; 23 N. W. Repr. 798. 12. NEGLIGENCE. Contributory Negligence Induced by Defendant's Misconduct no Excuse.When a passenger by railway with his wife and children, is in the act of alighting from the train stopped at a station, and when the wife with an infant in her arms, having reached the lower step

of the car, is thrown violently to the ground by the sudden starting of the car, the husband's act in jumping off to her assistance while the train is in motion and leaving his other children of tender years on the platform, one of whom is injured in attempting to jump off after her parents, is not such contributory negligence as debars recovery for injury to the child. The acts of both the father and the child were the direct consequences of defendant's own misconduct, and falls within the well settled rule that contributory negligence cannot be set up as a defense when such negligence was the result of tremor or excitement produced by the defendant's misconduct, or when the latter puts the plaintiff to a sudden election between the course which he took or submitting to a grave inconvenience. Lehman v. Louisiana W. R. Co., S. C. La., Opelousas, July, 1885.

13. NEW TRIAL. [Nominal Damages.]— Whether Granted to Enable Plaintiff to Recover Nominal Damages Merely.-Where the case is such that on a new trial the party complaining of error would be entitled to recover nominal damages only, which would not carry costs [Strong v. Daniels, 3 Mich. 466; Dikeman v. Harrison, 38 Mich. 617], a new trial will not be awarded unless the protection of substantial rights requires it. [Hickey v. Baird, 9 Mich. 32; Haven v. Manuf'g Co., 40 Mich. 286.] Lewis v. Flint, etc. R. Co., S. C. Mich., May 13, 1885; 23 N. W. Repr. 469; s. c., 19 N. W. Repr. 469.

14. PLEADING. [Fraud.]-Facts Constituting must be Alleged.-A replication of fraud to a plea of release must set out the fraudulent acts relied on, that the court may determine whether they amount to fraud, and that the defendant may know on what to take issue. [Citing: J'Anson v. Stuart, 1 Term Rep. 748, 752, 753; Wallingford v. Mutual Society, L. R. 5 App. Cas. 685,1697, 701, 709; s. C., 34 Eng. Rep. 65; Service v. Heemance, 2 Johns. 96; Brereton v. Howe, 1 Denio, 75; Weld v. Locke, 18 N. H. 141; Bell v. Lamprey, 52 N. H. 41; Sterling v. Mercantile Ins. Co., 32 Pa. St. 75; Hopkins v. Woodward, 75 Ill. 62; Cole v. Joliet Opera House, 79 Ill. 96; Darnell v. Rowland, 30 Ind. 342; Hale v. West Virginia Co., 11 W. Va. 229; Capuro v. Builders' Ins. Co., 39 Cal. 123; Hynson v. Dunn, 5 Ark. 395; Abraham v. Gray, 14 Ark. 301; Giles v. Williams, 3 Ala. 316.] Friedburg v. Knight, S. C. R. I., Dec. 29, 1884; 1 Eastern Repr. 24.

9. The town of L. has about 1300 inhabitants; "A." owns about four acres of land about four blocks from the business part of town, on the bank of a creek flowing by the town. The city council thinks they want two or three acres of the land for a park. Can they compell "A." to sell to the city. Statute Iowa, Sec. 470. City council have power to purchase or condemn, and pay for out of general fund, and take lands, for use of public squares, streets, parks, commons, cemeteries or any proper or legitimate and municipal use, and to inclose, ornaments and improve the same?

QUERIES ANSWERED.

SUB.

Query 6. [20 Cent. L. J. 99, 500.] A woman owning land in fee simple, married. Children were born of this marriage. The husband, solvent at time of marriage, became insolvent in course of time. Suits were brought on his debts by creditors and judgment had. During the months intervening between the bringing of suit, and the obtaining judgment, husband and wife went into Chancery, and, on petition, her realty was settled on her as a feme sole free from debts, liabilities and control, etc., and with power of disposition by deed, will, or otherwise. The wife devised the land to her children and died. The creditors of the husband levied on what they supposed was the life estate of the husband, as tenant by the courtesy. The devisees enjoined the sale, by bill filed for that purpose, and to remove the cloud of the levy from their title. Whose is the better right, creditors, devisees, or children? Land is situated in Tennessee; all the occurrences took place in that State, and it is the domicil of all parties. Answer fully, and give authorities and reasons.

THERLMORE.

Answer.-By the common law the personal property of the wife became the property of the husband as soon as it was reduced to possession. If the husband, or his assignee or creditors, were compelled to ask the aid of a court of equity to obtain control of her property, that court would refuse to aid them until a settlement of a proper part of her estate was made for the benefit of the wife and her children. This was termed the "wife equity." That equity it will be observed only arose when the property being dealt with was hers; and out of her own property was the settlement made. 1 Bish. on Mar. Women, § 624. One, not in debt, may give away his property if he pleases. But the general rule is that one who is indebted cannot give away his property to the prejudice of existing creditors, even though the gift be to his wife. The court of chancery by its decree might make provisions for the wife out of her own property and estate, but not out of the husband's. While the decree would be binding on the husband and parties to the suit it would not bind creditors, who were not parties,except so far as the court had jurisdiction to bind them. If the property settled upon the wife was hers it would bind. But the estate of the husband, as tenant by curtesy initiate, was not her property. "If a husband who is in debt undertakes to settle on his wife his interest in her lands, as tenant by the curtesy initiate, such a settlement will not be sus

tained against his creditors; because this estate is his own vested freehold, and as it is not his wife's he might as well undertake to settle on her any other of his property as this." 1 Bishop on Mar. Women, § 727; Id. § 646. See Van Duzer v. Van Duzer, 31 Am. Dec. 257 (6 Paige Ch. 366); Wickes v. Clarke, 8 Paige Ch. 172. CROSBY JOHNSON.

Hamilton, Mo.

Query 5. [21 Cent. L. J. 21.] A recovers a judgment against B in one State, and afterwards brings suit upon it in another State. In the meantime, B takes an appeal from the judgment sued upon, which operates a suspension of the judgment. Can he then plead nun tiel record to the action pending on the same in the second State, and have the transcript of the appeal inspected thereunder by the court, as being a part of the record upon which the action is brought?

Wheeling, W. Va.

M. T. FRAME.

Answer. Where an appeal is taken and proper proceedings had to stay proceedings on the judgment, an action will not lie on such judgment while the appeal is pending. Freeman on Judg., §§ 328, 433, 602; Clark v. Child, 136 Mass. 344; Campbell v. Howard, 5 Mass. 376; Ketchum v. Thatcher, 12 Mo. App. 185. But if the appeal does not suspend execution on the judgment an action may be maintained on it. Taylor v. Shew, 2 Am. Rep. 478; s. C., 39 Cal. 536; Faber v. Hovey, 19 Am. R. 398; s. C., 117 Mass. 107. Instead of pleading nul tiel record, the plea should be in abatement; should admit the judgment and show the grounds of its suspension. Freeman on Judgm., § 459; Jenkins v. Pepoon, 2 Johns. Cas. 312; Wemple v. Johnson, 13 Wend. 516.

Hamilton, Mo.

CROSBY JOHNSON.

JETSAM AND FLOTSAM.

"BLACKLIST" COLLECTING.

[Detroit, July 11, 1885. Ed. Jetsam and Flotsam.]-The "Blacklist" letter is unlawyerlike and dangerous. Common law is good authority that the claim must be first put in judgment to protect even a lawyer from libel. Better avoid all such claims; they will kill any attorney's business. A good name with his craft and the public will outweigh twenty times his profits on blacklist collections. This form is as suggestive as any attorney should use: "Please call early on a business matter to your interest." (You want him in the office.) Or say, this way: "We have a claim of $ against you for collection, and wish you to avoid costs and suit if possible. The matter is from Chicago." A little vagueness will add interest to the creditor, and excite his curiosity. A face to face meeting in kindness usually secures an admission of the debt, or lines out the defense. J. W. DONOVAN.

The Central Law Journal.

ST. LOUIS, AUGUST 28, 1885.

CURRENT EVENTS.

SUITS IN STATE COURTS AGAINST RECEIVERS APPOINTED IN UNITED STATES COURTS. —A correspondent referring to some remarks of ours on railway receiverships in Federal Courts,1 complains that he has been denied, by Mr. Circuit Judge Brewer, of the right to bring an action in the State court in Missouri for the killing of a cow by a train of cars operated by the servants of the receivers, of the Wabash railway, appointed by the United States Circuit Court. In denying his application, Judge Brewer is reported, by the official stenographer of the court, to have said: "This is an application for leave to sue the receivers of the Wabash Company for damages for stock. It is one of those cases where I think it should be presented to the master for his determination. I have in one or two instances permitted suits to be brought against receivers in the State court, where the allegation of the petition was that the receivers, in conjunction with several other roads, were jointly in possession of a tract of ground which was claimed by the plaintiff. As to the other defendants, he would have to sue in the State courts, but as it was a joint action against all for the possession of a tract of land, I thought it proper to have that suit brought in the State court. But this claim I think ought to be presented to the master and be paid with less cost. It is a small matter, and if presented to the master will be paid I presume. They have a stock adjuster, and it will be probably adjusted without suit. The costs of suit will be more than the value of the property." Our correspondent contrasts this language with that of Mr. Commissioner Martin, of the Supreme Court Commission of Missouri, in a case heretofore published in this JOURNAL: "The receiver, in his official capacity, is the party liable for the injury complained of. Litigants are not at liberty to sue him when and where they please. A license to do so must first be obtained from

1 Ante, p. 2.

Vol. 21-No. 9.

I can

the court of which he is an officer. hardly doubt that the plaintiff would have received a permission to that effect upon proper application. As these actions under our law are permitted to be brought before justices of the peace in the township where the injury occurred, or in the adjoining township-a provision intended for the benefit of both parties-an application to prosecute his action in statutory form would be manifestly natural and commendatory. It is impossible for a court to take charge of a long line of railway and run it, without incurring along its line the obligations and liabilities imposed upon the proprietors of such property by the laws of the State in which it is operated. Neither could it be operated successfully without the aid and protection of State laws. I believe it is customary to permit liabilities of this character, when incurred by the receiver to be ascertained and determined in the counties in which the facts have transpired giving rise thereto, and according to the form of trial suited to the nature of the liability, the judgment when obtained to be classified and enforced by the court having charge of the property. A rational regard for the rights of all parties concerned, is the foundation for this practice, and I am slow to believe that any court administering an enlightened system of jurisprudence, would refuse to grant all proper orders to that end.” 2 With much respect for the opinion of our correspondent, and for that of Mr. Commissioner Martin, we cannot but think that Judge Brewer is right in this matter. The delays in the administration of justice in the State courts of Missouri are so great that it would be quite impossible to wind up speedily such a receivership as that of the Wabash Railway, if the court should grant freely to persons having small claims against the receivers the right to sue them in the State courts. The suit in the Federal court is a suit in equity, and the jurisdiction of the court of equity over the chief subject-matter of the controversy draws to it the jurisdiction to settle all subsidiary matters by its own officers and its own processes. Trial by jury is not a part of these processes, except where it is resorted to for convenience in order to advise the conscience of the chancellor upon some difficult question

2 Heath v. Missouri, etc. R. Co., 20 C. L. J. 193.