from the Northern district of Iowa, and it appears that the judges of that court were equally divided upon the question of jurisdiction. These were therefore ordered to be remanded to the state courts of Iowa. This was the result of the equal division of opinion in the supreme court. See Schmidt v. Cobb, 119 U. S. 286,7 Sup. Ct. Rep. 1373j O'Malley v. Farley, 119 U. S. 2l:l6, 7 Sup. Ct. Rep. 1373. Now, it is quite impossible, in view of this division of opinion in the supreme court, and its consequent action, to say that the jurisdiction of this court over the cases now in question is nota matter of the gravest doubt. The action of the supreme court has thrown the most serious doubt upon our jurisdiction in such cases, and I would not feel justified in practically arresting and setting aside the jurisdiction of the state courts while the jndicial power of this court in the matter is a subjeot of such uncertainty and doubt. The present application must therefore be denied.
Justice of the Peace, and others.
((}lrouit,Oourt, S. D. 10tDa. Angust, 1887.) ,
power exists court of equity to interfere byinjnnctlonwith the punlslplu;nt of crimes and oJ:enses in the CQnf;ts'of Common
The original cause, of State V.811£88 was removed from the distnctcourt of Jefferson county, Iowa, to this court upon the petition of ilaid Suess, and the same is now pending here. ,The transfer Wllill made in purSuance of the decision of the circuit judge, BREWER, of ',State v. WalrtW. 26 Fed. Rep. 178. The purpose of that proceeding , was to, have the brewery owned and maintained by said Suess declared So nuisance, and as such perpetually enjoined and abated. A t;emporary , restraining order, which is still in full force, was issued from this court, .the pu'rpose of which, was to restrain certain persons, who WE/re carrying on 'civil proceedings in the state court. from prosecuting same to the injury and virtual destruction of the property pending.thedetermination of the question of the jurisdiction of this court oV\lr the subjectmatter of the said original suit. Lewis Suess now presents his petition to this: court· against the above-named defendants and others, alleging that. they are engaged in commencing and carrying on [many <;lrimin,al prosooutionsagaillst him before certain of the peaceufor each separate sale of beer at his brewery." and that they propose" to, place him on trial and find him guilty of selling intoxicating liquors, audto impose upon him heavy fines for said alleged offenses," etc. He also states, in a supplemental petitiQlil, that he was indicted 'at the Janllary term pf the district court of said county for the alleged crime of Cl\.using a nuisanceby the sale of beer at hisbrewerYi that he sa.id alleged offense, and that he has taken an appeal to the auvreme court of
Iowa upon ihe federal question as to the constitutionality of the prohibitory law, etc. The prayer of his petition is that this court issue an injunction restraining said defendants from the prosecution of said criminal suits in violation of his rights respecting the subject-matter of the action now pending in this court until the final determination of the same. Moses McCoid, for petitioner. Rollin J. Wilson, for respondents.
LOVE, J. Thus the proceeding now before me is in the nature of an application to restrain the defendants by injunction from the prose'cution of' sundry criminal proceedings against the plaintiff under the 'Prohibitqry law. It is alleged, and no doubt truly, that if the defendants be permitted 'to vex and pursue the plaintiff with numberless crim. inal prosecutions before justices of the peace and other state tribunals, the plaintiff will be compelled to abandon his business, and that his brewery property will be rendered useless and valueless. We are thus brought face to face with the question whether or not a court of equity has any power to interfere, by injunction or otherwise, with the enforcement of the criminallaws of the state. I haverepeateclly announced' orally from the bench in thisclass of cases that ,no such power exists. I shall in another cause, (Wagner v. Drake, ante, 849,) which was heard simultaneously with the present case,' consider the peculiar relations of the fed: era! to the state courts with respect to the power of the former to restrain civil proceedings in the state courtS. I purpose at present to consider the more general question of the power of courts of equity, state or fed'eral, to interfere at all with the administratiol1ofcriminal justice, . whether of the state or federal government. That no sl.lchpower exists,-that its exercise has been denied in both England and this country for centulIies,-is beyond question. This will be placed beyond all doubt by the authorities cited below. Whoever will for a moment consider 'the nature and grounds of equity jurisdiction will not fail to see insuperable objections to the exercise of any restraining power whatever in equity' over the course of criminal proceedings. The funditmental doctrine of equity jurisdiction is that it can proceed only where there is no plain, adequate, and complete remedy in the courts of common law. This principle is coeval with the system of equity itself. It was always upon this ground that the courts of equity in England assumed jurisdiction in civil causes. The principle was enacted into positive law by the congress of the United States in the judiciary act 0£1793$ (1 St. at Large, 82.) It is re-enacted in Rev. St. § 723, in these words: "Suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law." Upon what ground, then, do courts of equity assume jurisdiction in any case whatever? His upon the ground that no adequate remedy at law exists, and that injustice would be done if the court of equity dio. not interfere to give a better remedy than the courts of common law are, b>: their very constitution, competent to administer. It would therefore
be preposterous for equity to aSS1,lme jurisdiction, and especially to interfere with act1,lal proceedings at Jaw, in cases where a court of equity is utterly incompetent to give any remedy whatever. For a court of equity to interfere by staying proceedings at law, where there is some remedy, however imperfect, and then stand paralyzed and utterly impo. tent to remedy the assumed evil and injustice, would be the very height of legal absurdity. Now, every lawyer knows that a court of equity is utterly incompetent, by its very nature and constitutIon, to give any remedy whatever in crimimll cases. In such cases it is simply powerless. It can hear and determine nothing. It can neither acquit nor condemn the It can pronounce no decree concerning the offe)lse. It cannot pardon or release the offender. Public offenses must be tried by jury, and the trial by jury is unknown to the system of equity. For equity to interfere by arresting the processes of the common law, while impotent to give any remedy of its own, would be like the folly of tearing down one's house, because it should afford but imperfect shelter, without ability to replace it with any other structure whatever. Again, public offenf;les are prosecuted in England in the name of the king, and in the United States in the name of the state. It is manifest that neither the king nor the state could be. made a defendant to a bill. inequity. The restraining power of the court would be futile as against them;and)t would avail nothing for the court to address its restraining process to public and private prosecutors, if the power to do so existed, since the state would readily find other agents to represent it in the criminal proceeding. Courts of equity, therefore, deal only with civil and property rights. They have no jurisdiction to give relief in criminal cases, and they will not, therefore, interfere by injunction-with the course of criminal justice. Kerr v. Corporation of Preston, 6 Ch. Div. 463; Sa:u.Uv. Browne, 10 Ch. App. 64; Moses v. Mayor, 52 Ala. 198; Ja. seph v. Burk, 46 Ind. 59; Gault v. Wallis, 53 Ga. 675. In Holderstaffe v. Saunders, 6 Mod. 16, Lord HOLT is reported to have saiel:· "Surely chancery will not grant an injunction in.a criminal matter under examination in this court, and that if they did this court would break it, and protect any that would proceed in contempt of it." Montague v. Dudrnan,2 Ves. Sr. 398. See, particularly, what that great equityjudge, Lord HARDWICKE, says in this case. See, upon this sub. ject, High, Inj. § 68, where the cases are colIected and cited. The same doctrine is applicable where the court of equity has already jurisdiction of the parties and the subject-matter concerning which the criminal action exists. Where, therefore, a bill has been filed for relief in equity, the court will not enjoin the plaintiff in that suit from carrying on criminal proceedings against the same defendant, concerning the same subject-matter. Saull v. Browne, 10 Ch. App. 64. The same is true of proceedings of aqualfi criminal character. Moses v. Mayor, 52 Ala. 198; and see Dama v. Arnericq,n Soc., 75 N. Y. 362; Stuart v. Supervisors, 83. Ill. 341; Joseph v. Burk, 46 Ind. 59;GauU v. Wallis, 53 Ga. 675.
Sillce,th"erefore, the want of pd1ver in equity to interfere in criminal proceedings 'is general, and without reference to· the separate jurisdictions of thefedetal and state courts, it is unnecessary in this case to consider the effect oithe 720th section of the Revised Statutes of the United States;ptoviding that "the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court ofa state except in cases where such injunction may be authorized by law relating to proceedings in bankruptcy;" I purpose to consider the effect and the limitations of this section in deciding the applications which have been submitted to restrain certain civil proceedings in the state. courts under the prohibition, law. Theapplication in the present case is denied.
STARx 'and another.
(CM/;'Uit Oourt, No D. lUinoiB.
Where '& mortgage on real estate in Illinois is given to secure payment of two negptiJl,ple ilotes, containiu$'a,cQvenant that, upon failure to pay any stallment. of interest. the prinCIpal of both notes,shall become due, a bona, fide purchaser of such'notes and mortgage before maturity, upon default in, the payment of the interest. may avail himself of that covenant, and foreclose the mortgage for the entire principal sum, without regard to equities existing Original parties. , That oJl'eof the notes, to secure which the mortgage was given, will not become due till 1891, does not affecHheright of a bona fide holder to foreclosethe mortgage upondefauIt in the P&yment of interest, as. the mortgage, with all itli <lovenants; was givllnto secure the'notes, and' add to their commercial value, by giving the' holder the right to collect the entire debt when the makers fail to pay any installment of interest; and such bona fide holder may enforce the covenant without destroying the negotiable character of the notes. The rule established by the supreme court of Illinois that a negotiable note' and mortgll,ge. transferred to a bona fide holder before. maturity, are held subject to all eqJIities between the original parties, is not binding on the federal courts. which follow the rule laid down by the United States supreme court, that 'where a mortgage to secure negotiable notes is transferred, before ma-, turity, to a fide holder for value, and a suit in equity brought to foreclose the mortgage, no other defenses are allowed agaInst the mortgage than: would be allowed in an action at law to recover on the notes.
2. SAYE-,.:M:.i'1'tffii:ty OF NOTES.
COURTS--:-STATln DECISIONS-FORECLOSURE OF MORTGAGE.
R08itington, Smith &: DaUas. for complainant; .EdsaU &: Edsall, lor defendant.
GRESHAM, J."On the eighteenth ,day of January, 1885, the defendants executed their two negotiable promissory 'botes,-one for $2,000, payable to Mark P. Hillyer on the first day of May of the same yeari and the other for $3,000, payable to the same person on the eighteenth day of January, 1891. .:Both notes were l:',xecuted at Thomson, Illinois t