the granting of the equitable relief." This view, as stated in that opinion, was expressly based upon the Williams and Henderson Cases, and upon the supposed equitable principles governing such actions. The Shepard Case somewhat conspicuously illustrates the powers a court of equity may arrogate to itself with the object of completely determining and quieting the questions before it when it has once acquired jurisdiction of the action. It follows, in that respect, a rule long established by authority. It is true that in these cases the right to demand a jury trial as to past damages was not precisely or in terms stated as the proposition advanced; but that, as it seems to me, would be a very narrow evasion of the effect of the opinions delivered. They did consider the nature of such actions, and deliberately declared the power of the court in equity, as an incident of the main relief of injunction, to assess the damages sustained.

In Carpenter v. Osborn, 102 N. Y. 552, 7 N. E. 823, the court, in an action to set aside certain conveyances as fraudulent, granted the equitable relief prayed for, and, in addition, decreed the judgment a lien upon the land for some unpaid installments of interest, to the payment of which the defendant had obligated himself in a certain agreement. Chief Judge Ruger delivered the opinion of this court in affirmance of the judgment, and said: "This principle has been applied in many cases in awarding judgment for pecuniary damages, even when the party had an adequate remedy at law, if the damages were connected with a transaction over which the courts had jurisdiction for any purpose; although for the purpose of collecting damages merely they would not have had jurisdiction." In support of the principle declared by him, the learned judge cited Pom. Eq. Jur. § 181, and various cases.

I think some confusion of thought concerning the constitutional guaranty of a trial by jury may arise in a misapprehension as to its proper application. That provision relates to the trial of issues of fact in civil and criminal proceedings in the courts, as it was held by the chancellor in the case of Beekman v. Railroad, 3 Paige, 45, 22 Am. Dec. 679. Where the trial of a civil proceeding presents for determination a question of fact the right of trial by jury is proper, and can be invoked. But an action brought to restrain the commission of trespasses which are continuous in their nature is necessarily in equity, and the court interferes to prevent multiplicity of suits, and grants equitable relief by way of an injunction. The question presented for determination in such an action is one of law, whether, upon the facts to be established upon the trial, the plaintiff is entitled to such relief. Upon the proofs, showing the nature of the trespasses, and the consequent injury to the complainant's property, the court decides the question of plaintiff's right to an injunction. It does not seem to me that it can be said that any issue of fact as to damage remains. That was necessarily decided in the action, and all that remains is to fix its amount; and I do not think the constitutional provision was aimed at

such a proceeding. As defined by the chancellor in the case above referred to, it seems difficult to rationally give it an application to what is simply an assessment of the damages.

I may extract, and may appositely quote here, a remark of Judge Andrews in his opinion in Cogswell v. Railroad Co., 105 N. Y. 319, 11 N. E. 518: "We think," he says, "it is a reasonable rule, and one in consonance with the authorities, that where a plaintiff brings an action for both legal and equitable relief, in respect to the same cause of action the case presented is not one of right triable by jury under the constitution." The case was one wherein the plaintiff's complaint demanded judgment for damages and an abatement of a nuisance, and also for an injunction against its continuance. The learned judge's opinion is upon the question of whether such an action was one for a nuisance, under section 968 of the Code, which must be tried by jury, unless waived or referred, and he held that it differed from Hudson v. Caryl, 44 N. Y. 553, which was a common-law action, in that equitable relief by way of injunction was asked, and not simply the relief obtainable by writ of nuisance for damages and an abatement. His remark upon the right to a jury trial in equitable actions is not out of place, however, here.

To carry this discussion backwards, and to a time anterior to decisions of this court, we find warrant in the opinions then held by our own and the English chancery courts for holding that a trial by jury was not usual in cases where equity had acquired jurisdiction, and that the court would administer all the relief which the facts warranted, including the assessment and awarding of compensation for injury sustained. In Watson v. Hunter, 5 Johns. Ch. 169, 9 Am. Dec. 295, the bill was filed to enjoin the cutting of timber and to restrain the removal of that which had already been cut. Chancellor Kent confined the relief of injunction to the timber standing, and refused it as to the removal of the cut timber, on the ground that it would be an application to an "incidental remedy." He said that "the practice of granting injunctions in cases of waste is to prevent or stay the future commission of waste, and the remedy for waste already committed is merely incidental to the jurisdiction in the other case, assumed to prevent multiplicity of suits, and to save the party the necessity of resorting to trover at law."

The chancellor's exposition of the principle upon which equity acts in cases of waste obviously is as applicable to cases of trespass. If the action at law in trover was deemed unnecessary for the personal property already converted in that case, it seems unnecessary in such an action as this, in order to recover the loss sustained from the trespass. The chancellor in the Watson Case relied upon the practice followed. by the English chancellors. Lord Hardwicke, in Garth v. Cotton, 1 Ves. Sr. 528, had held that the decree for the waste already committed was an incident to the injunction to stay waste. Before that, in Jesus College v. Bloom, 3 Atk. 262, where the bill was filed for an account

and satisfaction for waste in cutting trees, and no injunction was prayed for, Lord Hardwicke said that the bill was improper, and that an action of trover was the remedy. He asserted the rule, however, that where the bill was for an injunction to prevent waste, and for waste already committed, the court, to prevent a double suit, would award an injunction to prevent future waste, and decree an account and satisfaction for what was past. He held that to prevent multiplicity of suits the court will, on bills for injunction, make a complete decree, and give the injured party a satisfaction for what had been done, and not oblige him to bring another action at law. In the subsequent case of Smith v. Cooke, Id. 381, the same lord chancellor declared the same doctrine, as did also Lord Thurlow in Lee v. Alston, 1 Ves. Jr. 78. I quote a remark of Lord Nottingham in Parker v. Dee, 2 Ch. Cas. 201, that when a court of chancery has once gained possession of the cause, if it can determine the whole matter, it will not be the handmaid of other courts, "nor beget a suit to be ended elsewhere."

In our former court of errors Chancellor (then Judge) Kent held, in Armstrong v. Gilchrist, 2 Johns. Cas. 424, 431 (decided in 1800), that "the court of chancery, having acquired cognizance of a suit, for the purpose of discovery or injunction, will, in most cases of account, whenever it is in full possession of the merits, and has sufficient materials before it, retain the suit in order to do complete justice between the parties and to prevent useless litigation and expense." That case was upon a bill for specific relief, and to restrain an action at law brought to recover the value of certain bank-stock, and it set up certain equitable considerations as against the justice of a recovery in the other action. The chancellor below decided against the whole relief sought by the bill, and decreed in favor of the defendants that the complainants should pay them the value of the stock, and ordered a reference to state the account. This procedure the court of errors upheld as being right, and the duty of the chancellor to follow.

I do not consider the cases cited by the appellants to be at all con trolling upon the question. In Murray v. Hay, 1 Barb. Ch. 59, 43 Am. Dec. 773, the bill was filed by two persons, who were owners of different dwelling-houses in severalty, having no joint interest in either of them, to restrain a nuisance which was a common, but not a joint, injury to both complainants. The objection to the prayer for an account and compensation for their respective damages was upon the ground of multifariousness, and so considered. Another case, of Hudson v. Caryl, 44 N. Y. 553, was an action to recover damages for the overflowing of plaintiff's lands, and to compel the removal of the dam; and the decision turned upon the ancient right to a jury trial in such an action of nuisance, which the Code had not affected. It was not an action in equity to restrain a nuisance, which, according to Judge Andrews' opinion in the Cogswell Case, supra, would not be an action for a nuisance directed by the Code to be tried by jury.

But the judge who delivered the opinion of the majority of the commission of appeals in Hudson v. Caryl spoke obiter in his remarks upon the general right of trial by jury, as his opinion indicates, for he says (page 555): "But, whatever may be said or decided in regard to the trial of other actions, in which two causes of action-one exclusively of legal, and another exclusively of equitable, cognizance, arising out of the same transaction-are united, this action should, for an independent reason, have been tried by jury, and that is that the action, when brought for the double object of removing the nuisance and recovering the damages occasioned by it, was always tried by jury;" and he proceeds to refer to Blackstone and to the old Revised Statutes. As, therefore, "a case is presented in which a trial by jury has been heretofore used," the commissioner concluded it was error to refuse it. It does not seem to me necessary to pursue further the consideration of authorities. The respondent's counsel has cited others in this and the lower courts. In a note to Armstrong v. Gilchrist, supra, will be found reference to other early cases in this state and in the United States Supreme Court in support of the "settled rule that when the court of chancery has gained jurisdiction of a cause for one purpose, it may retain it generally for relief." Underlying the system upon which courts of equity have exercised their power, as I understand it, is the principle that when they have gained jurisdiction of a cause by reason of the infirmity of the courts of law to entertain it, or to give full relief, they will retain their control of the cause generally, and settle up the whole matter between the parties.

I have discussed the question here at considerable length, in order that a rule, long settled by careful judicial utterances, and in itself reasonable and commendable as promoting the public convenience in the disposition of litigated causes, might not, at this day, be shaken by doubts. The conclusion which I think we must reach is that, in this complaint, the cause of action is single, and constitutes a claim for equitable relief, and there is not mixed up with it a cause of açtion for legal relief.

The facts alleged as a basis for an appeal to the court to exert its equitable power may well have constituted a claim for legal relief, and might have been set up in an action at law; but that consideration. cannot affect nor change the equitable nature of the action itself. It was not error, therefore, to deny the motion for a trial by jury as to past damages, and the court could competently proceed with the trial of the cause in equity.

The only other point presented to us upon this appeal is that it was error to award damages for portions of the property which were in the possession of tenants. As to this question the case is controlled. by the decision of the Kernochan Case, 128 N. Y. 559, 29 N. E. 65 (at this term).

The judgment should be affirmed, with costs, All concur, except EARL and PECKHAM, JJ., dissenting.

REES v. CITY OF WATERTOWN.

(Supreme Court of the United States, 1873. 19 Wall. 107, 22 L. Ed. 72.)

Mr. Justice HUNT delivered the opinion of the court."

This case is free from the objections usually made to a recovery upon municipal bonds. It is beyond doubt that the bonds were issued by the authority of an act of the legislature of the state of Wisconsin, and in the manner prescribed by the statute. It is not denied that the railroad, in aid of the construction of which they were issued, has been built, and was put in operation.

Upon a class of the defences interposed in the answer and in the argument it is not necessary to spend much time. The theories upon which they proceed are vicious. They are based upon the idea that a refusal to pay an honest debt is justifiable because it would distress the debtor to pay it. A voluntary refusal to pay an honest debt is a high offense in a commercial community and is just cause of war between nations. So far as the defence rests upon these principles we find no difficulty in overruling it.

There is, however, a grave question of the power of the court to grant the relief asked for.

We are of the opinion that this court has not the power to direct a tax to be levied for the payment of these judgments. This power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, first, to raise money for public purposes only; and, second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. Especially is it beyond the power of the federal judiciary to assume the place of a state in the exercise of this authority at once so delicate and so important. The question is not entirely new in this court.

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The plaintiff insists that the court may accomplish the same result under a different name, that it has jurisdiction of the persons and of the property, and may subject the property of the citizens to the payment of the plaintiff's debt without the intervention of state taxing officers, and without regard to tax laws. His theory is that the court should make a decree subjecting the individual property of the citizens of Watertown to the payment of the plaintiff's judgment; direct the

1 For discussion of principles, see Eaton on Equity (2d Ed.) § 13.

2 The statement of the case and a portion of the opinion are omitted.