to a jury trial, for the reason that they had waived it by consenting that the claim for damages should be referred with the claim for an injunction, and the fact that the latter had been transferred to another by the conveyance, at the trial or during the pendency of the action, did not deprive the referee of jurisdiction, so long as any cause of action remained. The right of trial by jury having been waived, there was no longer any question except whether the trial should be had in a court of law or a court of equity; and, since both remedies are now administered by the same court and under the same procedure, the defendants' contention related to forms, and not to matters of substance, and was not material." The next case cited is Valentine v. Richardt, 126 N. Y. 272, 27 N. E. Rep. 255, in which plaintiff sought to set aside the conveyance made to defendant Richardt on the ground that it was fraudulent and void as against him, and upon the trial it was held to be fraudulent and void; but the court could not vest title in plaintiff, because Richardt had sold the land to a purchaser in good faith. The conclusion, however, was reached that a court of equity could require Richardt to turn over to plaintiff the money he had received for the land, inasmuch as he had put it out of his power to convey the land. In this court it was said: "The fraudulent conveyance which the defendant obtained from the owner of the land enabled him to sell it to a purchaser in good faith, and the money that he received therefor, with the interest thereon, can, for all the purposes of this case, be considered in equity as the land itself." It is apparent from the decision, therefore, that this case is not an authority on the proposition, and it should also be noted that no such question was raised by motion or otherwise either before or at the trial. In the next case cited (Koehler v. Railroad Co., 159 N. Y. 218, 53 N. E. Rep. 1114), the grantee of the original plaintiff was brought in as a party plaintiff before trial, and though the defendant opposed the order joining him as plaintiff, no motion was made to go to the jury until the trial. This court said (Judge Bartlett writing); "It thus appears that the question of defendant's strict right to a jury trial in a case where seasonable application had been made was not presented for adjudication." Also: "The presence of the present owner as plaintiff preserves the equitable features of the case, and permits the court, sitting in equity, to retain jurisdiction." Henderson v. Railroad Co., 78 N. Y. 423, holds simply that, when a court of equity grants an injunction, it may also grant with it the incidental relief of damages. All the land abutting on the street had been sold, but the court enjoined the defendant railroad from using the street until it had acquired plaintiff's title thereto. The court alluded to the question of plaintiff's right to recover the damages accrued to the property sold, but said that question "has not been raised upon this appeal, nor was any objection made upon that ground before the referee. We are not, therefore, embarrassed by it." When an

equitable suit for an injunction, to which has been joined, as a mere incident and to avoid multiplicity of suits, a legal claim for damages, is. by plaintiff's conveyance of the land, shorn of all its equitable features, leaving nothing but a legal claim for damages, the right to a trial by jury cannot be denied unless it has been waived, as was done by the defendant in Pegram v. Railroad Co., 147 N. Y. 135, 41 N. E. Rep. 424, where the court said: "Had the objection heen raised in a proper way or at the proper time, I think the defendants could have insisted upon a trial upon the law side of the court. *** But not having done so, it was not erior" for the court, sitting in equity, to assess the damages.

So far I have considered this matter as if the inquiry were whether, in every action brought to secure equitable relief, the court should on motion, send the case to a jury for trial. upon its appearing that the right to equitable relief had passed away after the commencement of the suit. And I shall conclude in that vein. But the fact should not be lost sight of that in cases of this character, viz., actions to abate a nuisance and recover the damages occasioned thereby, trial by jury is a matter of right for the defendant, even if the complaint is in form as for equitable relief against the continuance of a nuisance, the prayer for damages being incidental thereto. And this is so because prior to the adoption of the constitution the existence of an alleged nuisance and the amount of damages were both submitted to a jury for decision, and hence the constitutional guaranty of trial by jury applies to such an action, as one of the "cases in which it has been heretofore used.". Hudson v. Caryl. 44 N. Y. 553; Cogswell v. Railroad Co., 105 N. Y. 319, 11 N. E. Rep. 518. The two cases from the United States Supreme Court which have been cited (Beedle v. Bennett, 122 U. S. 71, 7 Sup. Ct. 1090, 30 L. Ed. 1074: Clark v. Wooster, 119 U. S. 325, 7 Sup. Ct. 217. 30 L. Ed. 392) do hold that, in actions in United States courts for an injunction and damages for the infringement of patents, the fact that by the expiration of the patent the ground for an injunction has disappeared, does not preclude the court. sitting in equity, from granting the incidental relief of damages. But the reason for this rule in the United States courts is plain. Though the same courts have cognizance of both equitable and legal causes, the practice and the pleadings are entirely different for each class of cases, and, if a proceeding brought on the equity side of the court is not one of equitable cognizance, the cause must be dismissed, and a new proceeding must be instituted at law. Hipp v. Babin, 60 U. S. 271, 15 L. Ed. 633; Fenn v. Holme, 62 U. S. 481. 16 L. Ed. 198; Thompson v. Railroad Co., 73 U. S. 134, 18 L. Ed. 765; Killian v. Ebbinghaus, 110 U. S. 568, 4 Sup. Ct. 232, 28 L. Ed. 246; Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. Ed. 358; Hollins v. Iron Co., 150 U. S. 371, 14 Sup. Ct. 127, 37 L. Ed. 1113. In Thompson v. Railroad Co.,

the court said: "Has a court of eqnity jurisdiction over such a case as is presented by this record? If it has not, the decree of the court below must be reversed, the bill dismissed, and the parties remitted to the court below to litigate their controversy in a court a law.*** The constitution of the United States and the acts of congress recognize and establish the distinction between law and equity. The remedies in the courts of the United Siates are, at common law or in equity, not according to the practice of state courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of these principles. And although the forms of proceedings and practice in the state courts shall have been adopted in the circuit courts of the United States, yet the adoption of the state practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit." It appears, therefore, that while in our supreme court equitable and legal relief are possible under the same pleadings, and a strict enforcement of the rule that makes actions at law triable by jury would, in a case like the one at bar, result in no hardship, but would only entail a shifting of the cause from the equity to the law side of the court, the trial proceeding there on the same pleadings, in the United States courts the strict enforcement of the rule would necessitate the dismissal of the proceedings, and the plaintiff would be forced to begin a new action at law or abandon his cause. It seems plain to me, therefore, that the United States courts have adopted the practice disclosed by the two cases cited in order to avoid multiplicity of suits, and to save both parties from the bardship of resorting to another action for the decision of their controversy in a case where, when the suit was begun, plaintiff was entitled to equitable relief. And hence this court is not warranted in following the practice of the United States courts in this respect, thereby abandoning its own settled practice, which is not only workable, but more nearly conforms to the letter and spirit of the constitutional provision guaranteeing trial by jury. It follows, therefore, that the denial of defendant's motion for a jury trial in this case was error. The judgment should be so modified as to grant a new trial, and, as so modified, affirmed; costs in all courts to abide the event.

NOTE. - Right to Jury Trial in Equitable Actions Where it Appears that the Right to Equitable Relief Had Passed Away After Commencement of Suit. — It is a well-settled principle of jurisprudence that equitable actions are triable to the court, and that commonlaw actions are triable to a jury. The reason for this distinction is to be found in the origin of the procedure in equity. Ag is well known, equity came into existence for the purpose of providing remedies for injuries incurred for which the common law afforded no relief. In such cases a petition was filed with the king who referred it to his chancellor to give the needed relief. From this there grew up the important distinction heretofore referred to; and although

the modern code procedure has abolished the separate courts, yet the distinction prevails, and becomes important under the code not only as to whether or not a case is triable by jury, but whether or not the case can be taken up on error or appeal, it being a general principal that cases in equity are appealable, and jury cases to be taken up on error. The decision of the court in the principal case stands alone so far as appears from the case itself or from research. The exact questions raised can perhaps be better understood by the statement of the case made by the dissenting judge, (Bartlett, J.), who said:

"The plaintiff brought this action for an injunction and damages against the defendant, the Mt. Morris Electric Light Company. The plaintiff was the tenant of No. 525 Greenwich street, in the city of New York, and the defendant's plant was adjacent thereto. The complaint alleges, in substance, that the defendant so negligently constructed and conducted the property, and operated the machinery therein as to discharge upon the premises of the plaintiff great quantities of soot, cinders, ashes, and noisome gases, unpleasant odors, water, and steam; also causing incessant noises and very great jar and vibration, etc., affecting the he health and peaceable enjoyment of the occupants. At the time this action was begun the plaintiff was in occupancy of the premises under his lease; but when the trial commenced his lease had expired, and he had moved out. Prior to the trial the defendant made a motion for leave to serve an amended and supplemental answer, which was granted. This answer was duly served, setting up the expiration of the lease and the vacation of the premises. The cause coming on for trial at special term, on the equity side of the court, the defendant moved that it be stricken from the calender upon the ground that the issue remaining could not be tried; that the plaintiff asks for an injunction; that, inasmuch as he is not now in possession of the property, he is not entitled to an injunetion; that the action is therefore a common-law action for damages, and not an action for an injunction, and not an action over which equity has any jurisdiction. The trial judge denied this motion, and, after the introduction of evidence by both parties, rendered judgment in favor of the defendant, to the effect that the plaintiff, having removed from the premises prior to the trial, is not entitled to an injunction, but that the court could, notwithstanding, retain jurisdiction of the action for the purpose of assessing plaintiff's damages; that he is entitled to judgment for $1,189.05 damages, together with interest, costs, and an extra allowance of 5 per centum."

In the dissenting opinion the proposition is laid down that the jurisdiction of a court of equity depends upon the position of the plaintiff and the relief he is entitled to at the time of the bringing of his action, and if the jurisdiction has once attached, it is not affected by subsequent changes, so long as any cause of action survives. This is the exact language of the syllabus laid down in the case of Van Allen v. T. N. Y. E. Ry. Co., 144 N. Y. 174: "although for that there may be an adequate remedy at law." This case is quoted with approval in Koehler v. N. Y. Elevated Ry. Co., 159 N. Y. 223. In an earlier case in the same state, Valentine v. Richardt, 126 N. Y. 272, it was held "a court of equity having obtained jurisdiction of the parties and the subject-matter of an action may adapt its relief to the exigencies of the case; it may give to the plaintiff a money judgment simple when that form of relief becomes necessary in order to prevent a failure of justice, and when it is for any reason imprac

ticable to grant the specific equitable relief demanded." So it will be seen that there was sufficient ground for the dissenting judges in the principal cases to form their opinion upon, and sufficient to have authorized the court to have held otherwise. In the principal case the court does not found its decision upon any reported case, but simply lays down the law as it believes it ought to be. It cites no cases in its favor, but merely shows, or attempts to show, that there are no decisions preventing it from laying down the law as it believes it should be. The cases cited from the Supreme Court of the United States are explained away upon the theory, that there the common-law and equitable procedure is yet separate and distinct, and that therefore the reasons which exist for the Supreme Court of the United States could not apply to a code state where legal and equitable actions are tried in the same forum, although in a different manner. Whether or not a right to trial by jury exists must be determined from the object of the action as determined by the averment of the petition, and in cases of ambiguity, by resort to its prayer: and if an action is triable by jury it will not be defeated if it becomes necessary to determine issues as to the existence of equitable rights. Yager v. Exchange Bank, 72 N. W. Rep. 211. The effect of an answer or reply setting forth equitable matters in common-law action, and vice versa, came before a Nisi Prius judge in Ohio. Bank v. Brown, 12 Dec. 67, and there is laid down what perhaps is the true rule, when it is said: "We have examined all the authorities cited by counsel upon either side, and find that they are not altogether reconcilable. But from the examination we have given, we are of the opinion that they lay down the general principle that wherever a legal cause of action is set forth in the petition and an answer is filed thereto setting up an equitable defense which, if true, would extinguish the legal cause of action, the case is one for the court, and not for the jury; and on the contrary, that wherever a petition is filed setting forth an equitable cause of action, and an answer is interposed setting forth a legal defense which, if true, would extinguish the equitable cause of action set forth in the petition, and a reply filed to the answer controverting the issues of fact tendered in the answer, or answer and cross-petition, the answer and cross-petition and reply make up an issue of fact which must be tried to a jury, and not to the court." The following Ohio cases are cited in this opinion. Massie v. Stradford, 17 Ohio St. 596; Taylor v. Leith, 26 Ohio St. 428; Buckner v. Mear, 26 Ohio St. 516; Bruckhardt v. Bruckhardt, 36 Ohio St. 261; Grapes v. Barbous, 58 Ohio St. 569.

The constitutionality of a jury trial exists only as it was at the time the constitution was adopted, and therefore there might be a more liberal rule applied in those states which had given to them their constitutional guarantee at the same time a code of procedure was carried into effect. This, of course, would apply to the newer states of the union, many of which never had a separate procedure for common-law actions. The provisions of the United States constitution guaranteeing a right of trial by jury does not apply to the states. It is only a restriction on the general government and the states may constitutionally abolish, alter, or amend the existing right of trial by jury. See cases cited 6 Am. & Eng. Encyc. of law, 2 Ed. 974. While the decision of the principal case seems to be a new one, yet it is one that will no doubt be followed in all code states. O'Day v. Coum. 131 Mo. 321, 43 Pac. Rep. 1097. See 11 Cent. L. J. 92; 22 Cent. L. J. 191.

JETSAM AND FLOTSAM.

MATRIMONIAL FELICITY.

The following plea for judicial mercy, showing every evidence of the touch of Barrister Nolan's fine Italian hand, will be found brimful of pathos and Nolanesque eloquence:

"To the Hon. Judge of the City Court, in Equity: Your petitioner, Samuel, would deferentially represent that on the 10th day of January, in the year of grace 1891, your honor dissolved the connubial ties theretofore existing between petitioner and his consort, Annie, granting her a divorce a vinculo matrimonii, with the beatific privilege thereunto annexed of marrying again, a privilege, it goes without saying, she availed herself of with an alacrity of spirit and a fastidious levity disdaining pursuit; but on this vital point your honor extended to petitioner only the charity of your silence.

"Petitioner has found in his own experience a truthful exemplification of Holy Scripture, that 'it is not well for man to be alone,' and seeing an inviting opportunity to superbly ameliorate his forlorn condition by a second nuptial venture, he finds himself circumvallated by an Ossa Pelion obstacle which your honor alone has power to remove.

"His days rapidly verging on the sere and yellow leaf, the fruits and flowers of love all going; the worm, the canker, and the grief in sight, with no one to love and none to caress him, petitioner feels an indescribable yearning, longing and heaving to plunge his adventurous prow once more into the vexed waters of the sea of Connubiality: Wherefore, other refuge having none, and wholly trusting to the tender benignity and sovereign discretion of your honor, petitioner humbly prays that in view of the accompanying fiats of a great cloud of reputable citizens, giving him a phenomenally good name and fair fame, you will have compassion on him and relieve him of the hymeneal disability under which his existence has become a burden, by awarding him the like privilege of marrying again; thus granting him a happy issue out of the Red Sea of troubles into which a pitiless fate has whelmed him. For, comforting as the velvety touch of an angel's palm to the fever-racked brow, and soothing as the strains of an Eolian harp when swept by the fingers of the night-wind, and dear as those ruddy drops that visit these sad hearts of ours, and sweet as sacramental wine to dying lips, it is when life's fitful fever is ebbing to it close to pillow one's aching head on some fond, wifely bosom and breathe his life out gently there.

"And in duty bound to attain the possibility of compassing such a measureless benediction, petitioner will pray without ceasing, in accents as loud and earnest as ever issued from celibatarian lips."

BOOK REVIEWS.

SHEPARD'S ANNOTATIONS.

Quite a unique and collosal undertaking in its way is the new uniform system of annotations, devised by Mr. Frank Shepard, covering all state and federal courts of last resort. We have already received those covering the reports of the Missouri Supreme Court, the Missouri Court of Appeals, the Federal Reporter, and the United States Supreme Court. These citations have four points of superiority. First: They show, not only where each case is reported in their own set of Reports, but also reported in the South Western Reporter, American Decisions, American Reports,

American State Reports, and where cited in the L. R. A., U. S. Supreme Court, the New York Reports, ineluding the Court of Appeals, Appellate Division, Hun, Lansing, Thompson & Cook, Miscellaneous and Barbour. Second: They not only give all the subsequent citations of each case, but also show the precise point to which it has been cited, thus enabling the practitioner, at a glance, to ascertain the particular point of law or practice to which any case has been cited in the later decisions, thereby obviating the necessity of examining every volume where a case has been subsequently cited to find an authority in point. Third: Whether or not the principal case has been taken to the Supreme Court of the United States, and if so, what disposition was there made of it, whether affirmed, reversed, or writ of error dismissed. Fourth: Appropriate letters at the left of the volume number show at a glance whether a case has been affirmed, reversed, criticised, distinguished, explained, followed, harmonized, limited, modified, overruled, parallel case or same case, thus showing the present value of each case as an authority.

These books are bound in beautiful flexible leather and are published by The Frank Shepard Co., New York.

CYCLOPEDIA OF LAW AND PROCEDURE, VOL. 5.

The fifth volume of this meritorious work has reached us, a ponderous, heavy, large sized page law book, of nearly 1200 pages. An idea of the magnitude of this immense undertaking may be partially understood from the fact that the subjects embraced, which are in alphabetical order, have at the close of this the the fifth volume come down only to the subject of Bridges; considerable yet to appear to finish the second letter of the alphabet. The publishers seem to have spared no expense in procuring the services of prominent and able writers to supervise the preparation of the various subjects, which in the present volume are: Bail, by Joseph A. Joyce and Howard C. Joyce; Bailments, by George H. Bates; Bankruptcy, by J. W. Eaton and Frank B. Gilbert; Banks and Banking, by Albert S. Bolles; Barratry, by Robert F. Walker; Bastards, by Frank E. Jennings; Bigamy, by Paul Pizey; Blasphemy, by James H. Malone; Bonds, by Joseph A. Joyce and Howard C. Joyce; Boundaries, by J. Breckenridge Robertson; Bounties, by Robert Grattan; Breach of Promise to Marry, by Gilbert E. Roe; Breach of the Peace, by William A. Johnston; Bribery, by J. Breckenridge Robertson; Bridges, by Frank E. Jennings. To the busy lawyer for making preliminary examination of any subject, these volumes will be found of great value, their function cannot go much beyond this, and by reason of their usefulness for ready reference, their convenience would have been increased had they been made into double the number of volumes and half their present thickness. The editors say there will be no splitting of the law titles in an arbitrary manner by which pleading and practice are usually separated from substantive law, but that pleading, references to suitable forms, evidence and questions of law and fact will be treated under one head. This encyclopedia will be found very useful as a pointer, a forerunner, but cannot expect to do away with the usefulness of text-books or be a complete law library in itself. The text-books will be required for a larger and more extended discussion of any legal topic. The editors are William Mack and Howard P. Nash. Published by American Law Book Company, New York.

BOOKS RECEIVED.

Commentaries on the Modern Law of Municipal Corporations, Including Public Corporations and Political and Governmental Corporations of every class. By John W. Smith, LL. D., of the Chicago Bar, Author of "Receiverships," " 'Equitable Remedies of Creditors," being a revised, re-written and enlarged edition of Beach on Public Corporations. In two Volumes, Indianapolis, The Bowen-Merrill Company, 1903. Sheep, pp. 2148. Price $12 Net. Review will follow.

A Treatise on Equity Pleading and Practice, with Illustrative Forms and Precedents. By William Meade Fletcher, B. L., of the Chicago Bar. Professor of the Law of Equity Pleading and Practice in the Law School of the Northwestern University. Saint Paul. Keefe-Davidson Company, 1902. Sheep, pp. 1403. Price $6. Review will follow.

The Kite Trust (a Romance of Wealth). By Lebbeus Harding Rogers. Kite Trust Publishing Company, 75 Maiden Lane, New York City. Price, $1.50. Review will follow.

A Code of Negligence, being the Law of the State of New York in Respect of Negligence and Kindred Subjects as Declared by its Court of Last Resort. (From January 1, 1798, to July 1, 1902) with References to all the Cases in the Appellate Division of the Supreme Court from its Organization January 1, 1896. Cases Codified, Condensed, Classified. By John Brooks Leavitt, LL.D., of the New York Bar. Albany, N. Y. Matthew Bender, 1903. Sheep, pp. 850. Price, $6.50. Review will follow.