in damages when that is the remedy sought; but if the bill seeks other relief, that can only be given in equity, and damages are incidental thereto it will proceed to award them.

Merchants Ins. Co. v. Tayloe, 9 How., 390; Phoenix Ins. Co. v. Ryland, 69 Md., 437; Lynch v. Metropolitan El. Ry. Co., 129 N. Y., 274; McGean v. Met. El. Ry. Co., 133 N. Y., 9; Pom. Eq. Jur., Secs. 181, 231, 242; Tyler v. Savage, 143 U. S., 79, 97; Gormley v. Clark, 134 U. S., 338, 349; Milkman v. Ordway, 106 Mass., 232; Combs v. Scott, 76 Wis., 662, 671; Virginia A. M. & M. Co. v. Hale, 93 Ala., 542; 3 Pom. Eq., Sec. 1410.

(2) The doctrine has been extended to the granting of relief to the defendant, by way of cross-bill, in a subject matter which, if independently prosecuted, would be cognizable only at law.

Sunflower Oil Co. v. Wilson, 142 U. S., 313, 325; Chicago, etc., Ry. Co. v. Chicago Bank, 134 U. S., 276, 288.

(3) The rule is subject to the qualification, that the mere allegation of a ground of equity jurisdiction, or of exclusive equitable relief, is not sufficient. So, where a cause of action cognizable at law is entertained in equity on the ground of some equitable relief sought by the bill, which it transpires can not, for defect of proof or for other reason, be granted, the court is without proper jurisdiction and should dismiss the bill without prejudice.

Russell v. Clark, 7 Cranch, 69, 89; Dowell v. Mitchell, 105 U. S., 430; Rogers v. Durant, 106 U. S., 644; Buzard v. Houston, 119 U. S., 347, 354; Morss v. Elmendorf, 11 Paige Ch., 277; Dudley v. Congregation of St. Francis, 138 N. Y., 451, 458; Sauer v. Ferris, 145 Ill., 115; Palmer v. Fleming, 1 App. D. C., p. 533; Kennedy v. Hazleton, 128 U. S., 667, 671; Merwin Eq., 2398.

IV.

COURTS OF EQUITY HAVE NO INHERENT JURISDICTION IN EITHER OF THE FOLLOWING CASES:

1. TO PREVENT THE COMMISSION, OR INTERFERE WITH THE PROSECUTION, OF CRIMES.

2. OVER THE ELECTION OR APPOINTMENT AND REMOVAL OF PUBLIC OFFICERS.

(1) One of the earliest instances in which equity exercised

jurisdiction, in order to supply the deficiencies in remedies at law, was, where, in cases of assault and trespass and other outrages by violence, the petitioner for relief alleged that “he was unable to obtain redress owing to the position or powerful connections of his adversary." Out of this grew the writ of supplicavit, which was granted upon the complaint of a suitor of the court that he had been abused and stands in danger of his life from another suitor, to take the offending party into custody and compel him to give bail for his good behavior. (Bispham Eq., Sec. 8; Adams Eq., Introduction, XXXI.)

With the exception of the foregoing remedies, which themselves were really founded upon an infringement of rights of property and which also soon fell into disuse, equity jurisdiction has, from the first, limited itself to the protection of civil rights, as distinguished from cases of criminal cognizance.

Injury to property or rights of property, actual or prospective, is the ancient and sure foundation upon which the jurisdiction rests.

In re Sawyer, 124 U. S., 200; Cope v. District Fair Association, 99 Ill., 489; Crighton v. Dahmer, 70 Miss., 602; Atty. Gen. v. Tudor Ice Co., 104 Mass., 239; Atty. Gen. v. Utica Ins. Co., 2 Johns. Ch., 371; Sheridan v. Colvin, 78 Ill., 237; Cochrane v. McLeary, 22 Iowa, 75; 1 Pomeroy Eq., Sec. 197; High on Injunctions, Secs. 20, 68, 272; Kerr v. Corp. of Preston, L. R., 6 Ch. Div., 163; Saull v. Browne, 10 Ch., 64.

(2) Of late years there has been a disposition, in some of the States, to confer jurisdiction in equity for the prevention of offences that affect public morals and are therefore declared public nuisances; for example, selling liquor, gambling, and keeping disorderly houses. It has been held that such legislation is not inconsistent with the constitutional guarantees of liberty and property and trial by jury.

Mugler v. Kansas, 123 U. S., 623, 670; Eilenbacker v. Plymouth Co., 134 U. S., 31.

(3) The rule has this important qualification: Equity will not refuse to restrain the doing of an act where serious and

irreparable, or inestimable damage would result to private property, simply because it might also be punished as a crime. It will, therefore, enjoin the commission of nuisances and continued trespasses and destruction of property notwithstanding the acts may be offences against the criminal laws. In such cases the remedies are concurrent.

The protection of property, or private rights, ought, however, clearly to appear to be the real motive, and not the enforcement of a criminal law.

In re Debs, 158 U. S., 564; Arthur v. Oakes, 63 Fed. Rep., 310; Toledo, etc., R. Co. v. Penna. Ry. et al., 54 Fed. Rep.. 730; Cranford v. Tyrrell, 128 N. Y., 341; Marsan v. French, 61 Tex., 175; Mobile v. L. & N. R. R., 84 Ala., 115; Carlisle v. Cooper, 21 N. J., Eq., 576; Sherry v. Perkins, 147 Mass., 212.

CHAPTER I.

JURISDICTION OF EQUITY COURTS MISCELLANEOUS RULES.

Rule 90.

Equity Euq. In all cases where the rules prescribed by this court or by Martice at the circuit court do not apply, the practice of the circuit court Ex left as shall be regulated by the present practice of the high court epily of chancery in England, so far as the same may reasonably be changed!

applied consistently with the local circumstances and local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice.

Rule 1.

Cis. Cli. al. The circuit courts, as courts of equity, shall be deemed wap open. always open for the purpose of filing bills, answers, and other for pp. pleadings; for issuing and returning mesne and final propurposes. cess and commissions; and for making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to hearing of all causes upon their merits.

open to grant viden

Rule 2.

Cliff The clerk's office shall be open, and the clerk shall be in Wine attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining and disposing of all motions, rules, orders and other proceedings, which are grantable of course, and applied for, or had by the parties or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed.

Judy

acting

Rule 3.

Any judge of the circuit court, as well in vacation as in (14) certain cases.

for

term, may, at chambers, or on the rule-days at the clerk's office, make and direct all such interlocutory orders, rules, and other proceedings, preparatory to the hearing of all causes upon their merits in the same manner and with the same effect as the circuit court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary, at the next rule-day thereafter, unless some other time is assigned by the judge for the hearing.

Rule 4.

All motions, rules, orders, and other proceedings, made and e-book directed at chambers, or on rule-days at the clerk's office, whether special or of course, shall be entered by the clerk in an order-book, to be kept at the clerk's office, on the day when they are made and directed; which book shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors. And, except in cases where per-notice.

sonal or other notice is specially required or directed, such entry in the order-book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceedings entered in such order-book, touching any and all the matters in the suits to and in which they are parties and solicitors. And notice to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court may, by rule, abridge the time for notice of rules, orders, or other proceedings not requiring personal service on the parties, in their discretion.

Rule 5.

All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and