State Ex Rel. Rhodes v. Saunders

25 A. 588, 66 N.H. 39

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1889
• Status: Published

Opinion

Allen, J.

"Equity, as a great branch of the law of their native country, was brought over by the colonists, and has always existed as a part of the common law in its broadest sense in New Hampshire.” Wells v. Pierce, 27 N. H. 503, 512 ; Copp v. Hen niker, 55 N. H. 179, 210; Penhallow v. Kimball, 61 N. H. 596, 598, 599; Carroll v. McCullough, 63 N. H. 95, 98; Eckstein v. Downing, 64 N. H. 248, 259. “Until the case of Marston v. Brackett, 9 N. H. 336, decided in .1838, it had not been intimated in this state, or anywhere else, that there was a right of trial by jury in equity proceedings. I venture to say that if such a right ever existed in this state, it was after and not before the observation of Chief-Justice Parker in that case. It is not necessary, in the view I take, to inquire whether that observation established such a singular and anomalous doctrine in this state or not. It is enough that up to that time all the books and cases where the common law prevails are the other way.” Ladd, J., in Perkins v. Scott, 57 N. H. 55, 81. The novel doctrine, adopted “without consideration,” was abandoned as soon as it was examined. Copp v. Henniker, 55 N. H. 179, 210, 211; Bellows v. Bellows, 58 N. H. 60; Sargent v. Putnam, 58 N. H. 182; Proctor v. Green, 59 N. H. 350, 352; Davis v. Dyer, 62 N. H. 231, 236.

“In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practised .... the parties have a right to a trial by jury.” Bill of Rights, art. 20. If this clause had been reenacted in 1792, 1851, 1877, and 1889 (when constitutional amendments were submitted to the people), it is not to be assumed that its original meaning would have been changed. But it has not been enacted since it took effect, in 1784. The impression that a constitution was adopted in 1792 (Gen. Laws 40, n.; 55 N. H. 190-192) is erroneous. Journal of the Convention in 10 Prov. and St. Pap. 57, 63, 110-114, 141-168; Constitution, art. 97 (formerly art. 98). The error may have arisen from a misunderstanding of votes passed by the convention (Journal, p. 167), the certificate signed by the president and secretary of the convention (Gen. St., p. 34), and the act of December 14, 1792. Laws, ed. of 1797, p. 50. The state has had but one permanent constitution. (The government of 1776 was intended to be temporary. 10 N. H. 143 ; 59 N. H. 272.) “ The constitution of 1792” is a misnomer. In article 20 of the Bill of Rights, and in article 89 of the second part of the constitution, “heretofore” means before 1784.

“All the laws which have heretofore been adopted, used, and approved in the province, colony, or state of New Hampshire, and usually practised on in the courts of law, shall remain and be in full force until altered and repealed by the legislature, such parts thereof only excepted as are repugnant to the rights and liberties contained in this constitution.” Article 89. “All the laws which have heretofore been .... usually practised on in the courts ” can be read in a sense that includes only such legal rules as can be shown to have been applied in New Hampshire cases. But this is not the meaning. The English common law, modified by American conditions, is one of “ the laws which have heretofore been adopted, used, and approved in the province .... of New Hampshire and usually practised on in the courts.” This body of New Hampshire law (being the common law of England, such parts excepted as are not consistent with the constitution, or not applicable to the institutions or circumstances of the country) is to “ remain and be in full force until altered and repealed by the legislature.” State v. Rollins, 8 N. H. 550, 563, 564; Lord v. State, 16 N. H. 325, 330; Concord M. Co. v. Robertson, 66 N. H. 1, 7.

In 1836, when the defendant in State v. Buckman, 8 N. H. 203, was found guilty of the common-law offence of maliciously tainting and corrupting a well of water by putting the carcass of an animal in it, the state was not required to show an actual or usual practice in the New Hampshire courts in this branch of criminal law before 1784. The defendant’s motion in arrest of judgment ■would not have prevailed if the state had admitted that this was the first American case in which the rights of person and property had been violated in the manner set forth in the indictment. These rights were brought to this state by the first settlers, and were founded on legal principles, and not on the mere evidence of law furnished by judicial decisions. These principles would have remained in force if article 89 had not been adopted. A written order was as unnecessary for the continuance of the unwritten law in 1784 as for its introduction in 1623.

“ The common law of England consisted of those maxims of freedom, order, enterprise, and thrift which had prevailed .... from time immemorial. It was the outgrowth of the habits of thought and action of the people, and was modified gradually and insensibly from time to time as those habits became modified.....Springing from the very nature of the people themselves and developed in their own experience, it was obviously the body of laws best adapted to their needs, and as they took with them their nature, so also they would take with them these laws whenever they should transfer their domicile from one country to another.....From the first, the colonists in America claimed the benefit and protection of the common law. In some particulars, however, the common law as then existing in England was not suited to their condition and circumstances in the new country, and those particulars they omitted as it was put in practice by them.” Cool. Con. Lim. 32, 34.

“ The first colonists of New England were fishermen and farmers, their leaders were clergymen, and though they brought with them a general idea of English law and English liberty, the registers of writs were sealed books to them as much as they are to as at this day. Instead of attempting to follow the forms of the register, they devised processes of their own. The recital of some of them will show that no reverence for any ancient forms existed among the courts here. . • . . We regard the ignorance of the first colonists of the technicalities of the common law as one of the most fortunate things in the history of the law; since, while the substance of the common law was preserved, we happily lost a great mass of antiquated and useless rubbish, and gained in its stead a course of practice of admirable simplicity, and one which seems to us far better than the most improved codes of practice which have been recently introduced elsewhere.” B. C. & M. R. R. v. State, 32 N. H. 215, 230, 231.

With substantive rights, the first settlers brought over the incidental rights of adequate remedy and convenient procedure. Cases cited in 64 N. H. 178, 179. If the jurisdiction of a court of equity were an arbitrary power of violating legal rights, or doing justice in cases in which there is no law, it might be said that equity was not a part of the common law brought over by the colonists, and that it did not exist here before a provincial court of chancery was established. But the work of such a court being the administration of law and the maintenance of rights (chiefly in cases in which the power of other courts was formerly supposed to be defective in respect to adequacy of remedy and procedure — 3 Bl. Com. 429-442), the theory that equity was not a branch of the provincial law cannot be accepted without overturning the fundamental principle that adequate remedies are incidents of substantive rights, and holding that from the necessity of sufficient means of protection the law implies a remedial system that is insufficient. Adequate remedy includes not only real actions, writs of possession, replevin, judgments for damages, and other process used in the courts of king’s bench, exchequer, and common pleas, but also the specific performance of some contracts, and specific relief by injunction, receivership, partition, and other forms of equitable decree for trusts, fraud, accident, mistake, confusion of boundaries, partnership, nuisance, and other cases of equity jurisdiction.

For some purposes, legal rights may be conveniently divided into classes; but every classification does not indicate that they came into existence at different times. The incidental right to an adequate remedy for the infringement of a right derived from the unwritten law, is coeval with the right of which it is an incident. The law of right and remedy that was administered in State v. Buchnan came with the first immigrants who landed at Portsmouth, and not with the first provincial tribunal authorized to enforce it, or the first provincial magistrate authorized to issue a warrant. Before a court was established here to administer any branch of the law, the first English inhabitants were entitled to the protection afforded by the punishment of common-law offences, the reformation of erroneous deeds, and other adequate civil remedies, compensatory and specific. The establishment of the first provin cial courts that had jurisdiction of criminal and equity cases was a recognition of existing rights, substantive and remedial. Rich v. Flanders, 39 N. H. 304, 328. If all rights were now left, for one year or ten years, without a judicial jurisdiction in which they could be maintained, their legal existence during the interval would not be disproved. The obstruction of navigation by a boom across the Piseataqua would have been a nuisance abatable by an injunction from the provincial court of chancery, without the process of indictment and jury trial, which would be inadequate by reason of its dilatory character. The right to an immediate remedy, as adequate as an injunction, is an incident of the right of navigation which was not created by the establishment of a court. If there had been no court of chancery here during the provincial period, it would nevertheless be true that adequate remedies are incidents of legal rights, and that the specific forms of equitable relief, so far as justice requires them, are required by a settled rule of the ancient unwritten law as interpreted and administered in this state. By this law, the defendant in State v. Buckman had a right of jury trial which he would not have had in a suit in equity.

The bill of rights was not the beginning of law for the state. The general phraseology of articles 20 and 89 assumed the existence of a well understood system which was to remain in force. The jury trial given in “the court maritime ” by the act of July 3, 1776, was a peculiarity which the last clause of article 20 authorized the legislature to abolish. Such a clause, apparently inserted out of abundant caution, does not establish the construction that article 20 perpetuates every statutory method which the legislature were not specially authorized to alter. The right of jury trial was not introduced or enlarged in 1784. “ The constitutional provisions do not extend the right; they only secure it in the cases in which it was a matter of right before.” Cool. Con. Lim. 504, 75, In this elementary doctrine the authorities concur. The provision of the federal constitution, that in the federal jurisdiction “the trial of all crimes, except in cases of impeachment, shall be by jury,” “ is to be interpreted in the light of the principles which at common law determined whether the accused, in a given class of cases, was entitled to be tried by a jury.” Callan v. Wilson, 127 U. S. 540, 549. For the purpose of the present inquiry, jury trial in all cases except those “in which it has been heretofore otherwise used and practised,” is jury trial “ in all cases in which it has been heretofore used.” Whichever expression is used, the meaning is, that the unwritten jury law, brought to this country by the first settlers, is in force so far as it had not been altered by usage or legislation before. 1784. Petition of Mt. W. Co., 35 N. H. 134, 142-145 ; Patrick v. Cowles, 45 N. H. 553, 555; Cocheco Co. v. Strafford, 51 N. H. 455, 457-459. So far as the rights of the parties in this case are concerned, the difference between article 89 and the reservation of jury trial in the bill of rights is immaterial. The jury law, continued in force by article 89, as a part of the existing body of laws, subject to the legislative power of alteration and repeal, is withheld from that power by the bill of rights. As the substance of the jury-trial right of 1784 would exist to-day if no constitution had been adopted and no statute had been enacted, and as it is not claimed that the legislature have attempted to impair it, the question is, whether, by the unwritten law, there would' have been a right of jury trial in this case in May, 1784 (before the constitution took effect), if the case had then been pending in a court of equity.

.The essentials of jury trial, “and the cases in which it had been otherwise used and practised, are shown by common-law principles and by history.” Wooster v. Plymouth, 62 N. H. 193, 203. The usage in which the historical right is to be found is not merely that of an American province and state, but also that of the race among whom this trial was an old institution when they brought it to the new world. Conflicting precedents of different times and places are examined for common-law rules presumed to be founded on reason. A jury trial is a proceeding in which the jury are the judges of the facts, and the court are the judges of the law. This was the true rule of the common law ; and this is the rule adopted by the constitution, instead of the one practised on here before and after 1784. Pierce v. State, 13 N. H. 536; State v. Hodge, 50 N. H. 510, 522, 523. “ Suppose, at some period after the adoption of the constitution, and before the act of 1832 conferring general equity powers upon the supreme court, the legislature had given to the court a single isolated branch of equity jurisdiction and power,— as, for example, that of decreeing the specific performance of contracts, — without creating it a court of chancery by name, and without providing that any of the forms of chancery proceedings should be observed, . . . what difference could it make whether the equity power to enforce the specific performance of a contract had ever been exercised by any tribunal, either in the province or the state, before or not? If it was a power never used nor pra-tised in the province before the constitution in any form, then to determine the true application of the terms ‘heretofore used and practised,’ as used in the bill of rights, we must go to the common law with respect to the new right and power thus conferred; and doing that, we find it not to be a case in which it had been used and practised anywhere before the constitution, to have a trial by jury as matter of legal right.” Ladd, J., in Perkins v. Scott, 57 N. H. 55, 81, 82.

“ The modes of seeking and granting relief in equity are different from those of courts of common law. The latter proceed to the trial of contested facts by means of a jury; . . . courts of equity try causes without a jury.” Sto. Eq. Jur., s. 31. In the construction of statutes and constitutions, there is a natural presumption that if a discontinuance or change of the universal and immemorial usage bad been intended, the intention would have been shown by express words or necessary implication. Basey v. Gallagher, 20 Wall. 670, was an appeal from the supreme court of the territory of Montana. The organic act of the territory recognized the distinction between the jurisdictions of law and equity, and required proceedings in both to be in the same court. It was provided by statute that there should be but one form of civil action, and that issues of fact should be tried by jury, unless a jury was waived, or a reference ordered in a certain way. A bill for an injunction was brought in a territorial district court. Questions were submitted to a jury, who returned a verdict on which both parties moved for judgment. On these motions, the court heard the whole case on the pleadings, evidence, and verdict, and rendered a decree which was affirmed by the supreme court of the territory. Tn rendering the decree, the district court disregarded a portion of the findings of the jury, and adopted others; and this action was approved by the supreme court of the territory, and was one of the errors assigned for reversal in the federal court where the decree was affirmed.

“ The consideration,” says Field, J., delivering the opinion in that case (p. 680), “ which the court will give to the questions raised by the pleadings, when the case is called for trial or hearing, whether it will submit them to a jury, or pass upon them without any such intervention, must depend upon the jurisdiction which is to be exercised. If the remedy sought be a legal one, a jury is essential unless waived by the stipulation of the parties; but if the remedy sought be equitable, the court is not bound to call a jury, and if it does call one, it is only for the purpose of enlightening its conscience, and not to control its judgment. The decree which it must render upon the law and the facts must proceed from its own judgment respecting them, and not from the judgment of others. Sometimes in the same action both legal and equitable relief may be sought, as, for example, where damages are claimed for a past diversion of water, and an injunction prayed against its diversion in the future. Upon the question of damages, a jury would be required; but upon the propriety of an injunction, the action of the court alone could be invoked. The formal distinctions in the pleadings and modes of procedure are abolished; but the essential distinction between law and equity is not changed. The relief which the law affords must still be administered through the intervention of a jury, unless a jury be waived ; the relief which equity affords must still be applied by the court itself, and all information presented to guide its action, whether obtained through masters’ reports or findings of a jury, is merely advisory. Ordinarily, where there has been an examination before a jury of a disputed fact, and a special finding made, the court will follow it. But whether it does so or not must depend upon the question whether it is satisfied with the verdict. This discretion to disregard the findings •of the jury may undoubtedly be qualified by statute; but we do not find anything in the statute of Montana, regulating proceedings in civil cases, which affects this discretion. That statute is substantially a copy of the statute of California as it existed in 1851, and it was frequently held by the supreme court of that state that the provision in that act requiring issues of fact to be tried by a jury, unless a jury was waived by the parties, did not require the court below to regard as conclusive the findings of a jury in an •equity case.”

“In Idaho, as in other territories, there is but one form of civil action, in which either legal or equitable remedies, or both, may be administered, through the intervention of a jury, or by the court itself, according to the nature of the relief sought, provided, however, that no party can be ‘deprived of the right of trial by jury in cases cognizable at common law.’ . . . The present suit was brought to enforce a mechanic’s lien created by the statutes •of the territory, which authorize the court in such a suit to order both a sale of the real estate that is subject to theTien, and judgment against the owner thereof for any deficiency in the proceeds •of the sale, ‘ in like manner and with like effect as in actions for the foreclosure of mortgages.’.... The relief provided for in those statutes, sought by the complaint and granted by the court, was purely equitable, and the proceeding was in the nature of a suit in equity. . . . The case being one of equitable jurisdiction only, the court was not bound to submit any issue of fact to the jury, and, having done so, was at liberty to disregard the verdict and findings of the jury, either by setting them or any of them aside, ■or by letting them stand, and allowing them more or less weight in its final hearing and decree, according to its own view of the evidence in the cause. By the settled course of decision in this court, it is not necessary that a court of equity should formally set aside the verdict or finding of a jury, before proceeding to enter a •decree which does not conform to it.” I. & O. Co. v. Bradbury, 132 U. S. 509, 513, 515, 516.

“ It is often the primary . . . object of a suit in equity, brought by devisees and others, ... to establish the validity of a will of real estate; and thereupon to obtain a perpetual injunction against the heir-at-law, and others, to restrain them from ■contesting its validity in future. ... In every case of this sort, courts of equity will, unless the heir waives it, direct an issue of devisavit vel non ... to ascertain the validity of the will. But it will not feel itself bound by a single verdict either way, if it is not entirely satisfactory; but it will direct new trials, until there is no longer any reasonable ground for doubt.” Sto. Eq. Jur., s. 1447. “ There is no doubt upon the right of this court to grant a new trial after a trial at bar. . . . It is admitted to be the practice 'of this court; where the issue is directed to inform the conscience of the chancellor; upon this principle; that it was the habit of this court to try upon the report of the circumstances, viz., the trial, and all the objections, whether due attention had been given to all the considerations stated ; whether, according to the common expression, the conscience of the court was satisfied, or not.” St. Paul's v. Morris, 9 Ves. 155, 165, 166. In that case Lord Eldon was of opinion (p. 168) that, as the record stood at the original hearing, “ the court had a right to refuse, but, if asked, ought to have directed, an issue.” O’Connor v. Cook, 6 Ves. 665, 671, was a bill for an account of tithes. The defence was immemorial payment of 20l. a year in commutation. Upon the evidence, the defendant contended that an issue should be sent to a jury. Lord Eldon said (in 1802), “ There is no doubt that, according to the constitution of this court, it may take to itself the decision of every fact put in issue upon the record. . . . It is pretty clear that courts of equity in ancient times were more in the habit of taking to themselves the decision of questions of fact than they have thought wise and discreet in later times. As to immemorial payment, if any reasonable doubt has been raised upon it in the evidence, it has been of late thought wise and discreet to send the question of fact to a jury. All the judges have demonstrated their opinion in favor of that practice where any reasonable doubt is raised upon the fact.” An issue was directed, and after verdict, on a motion for a new trial, Lord Eldon said that when courts of equity act upon the opinion of a jury, “ their own judgment ought to concur with the verdict, to this extent at least, that they are not dissatisfied with the verdict.” 8 Ves. 535, 536.

No jury could be summoned to attend the English court of chancery (3 Bl. Com. 452), and there was no appeal from its decrees to a jury court. If trial by jury in equity had been a common-law right, the means of enjoying it in that jurisdiction, or on appeal, would have been provided by law. The chancellor "is equally competent to decide on disputed facts as on disputed law; and it is a matter of discretion only when he either orders or permits the parties to submit the trial of such facts to the cognizance of a jury.” 3 Bl. Com. 48, Coleridge’s note. When the chancellor’s examination of written evidence left him in such doubt that he desired the advice of a jury, he could send an issue to a court that had power to summon a jury. If he made a decree in accordance with the jury’s opinion, it was not because the verdict was a binding decision, but because he was satisfied, or not dissatisfied, with it. The privilege of a hearing before a jury whose advisory verdict, obtainable only by an exercise of the chancellor's discretion, depended for its effect upon its being satisfactory, or not unsatisfactory, to him, was not the common-law right reserved by the constitution. The reservation had no reference to a discretionary power exercised in Attorney General v. Cleaver, 18 Ves. 211, and other cases (Sto. Eq. Jur., s. 923) decided before and since 1784. In the cases in which the right was reserved, it was not connected with or affected by the reasonable doubts that had induced chancellors to seek the assistance of a jury, or the great or little deference that had been paid to advisory verdicts.

In cases of reasonable necessity, organized society, as well as each individual, may defend personal and proprietary interests without judicial process based on the verdict of a jury. Cool. Con. Lim. 434, 720, 739; Tiede. Lim. Pol. Power, o. 5; Cool. Torts 45-59; Haley v. Colcord, 59 N. H. 7, 8; Weeks v. Sly, 61 N. H. 89; State v. Ray, 63 N. H. 406, 412; Hodgeden v. Hubbard, 18 Vt. 504; Stone v. Lahey, 133 Mass. 426; Com. v. Donahue, 148 Mass. 529. “By the common law, every private person may lawfully endeavor, of his own authority, and without any warrant or sanction of the magistrate, to suppress a riot by every means in his power.” 5 C. & P. 260 n.; L. R. 6 Q. B. 15. For the better preventing the spreading of the plague, small-pox, pestilential or malignant fever, or other contagious sickness, the infection whereof may probably be communicated to others, the act of 1714 (Laws 1771, p. 46) empowered selectmen to take care, and make effectual provision in the best manner they could for the preservation of the inhabitants, by removing infected persons to separate houses, and providing nurses and other assistance and necessaries. If need so required, any justice of the peace was authorized to make out a warrant to the sheriff, his under-sheriff or deputy, or constable or constables, requiring them, with advice and direction of the selectmen, to impress and take up convenient housing, lodging, nurses, tendance, and other necessaries for the accommodation, safety, and relief of the sick. It was also provided that if any person coming to the province by sea happened to be visited with the plague, small-pox, pestilential or malignant fever during the voyage, or to come from any place where such sickness prevailed, a justice of the peace should forthwith take care to prevent all persons from coming on shore from the ship; if any be on shore, to send them on board again; to restrain persons from going on board; and to that eud to make out a warrant directed to the proper officers, who were empowered and required to execute the same. Similar action is authorized by more recent legislation. Acts of 1789, 1792, 1799, 1803, 1807 (Laws 1830, pp. 178, 180, 260-269); Rev. Stat., cc. 119-121; G. L., ce. 111-113.

In some cases, health officers may abate nuisances without notice. G. L., c. 111, s. 5. A vessel attempting to pass into Portsmouth in violation of quarantine regulations made by the health officers, may be stopped by the commander of any fort near the harbor. If such vessel attempts to pass after being-hailed and forbidden, and after warning given by a shot fired ahead and a shot fired astern, then such vessel shall be fired upon and into until she shall bring to, and submit to the regulations. Act of 1807, in Laws 1830, p. 269; G. L., o. 113, s. 13. For the introduction of pestilence, a compensation suit, reinforced by indictment, jury trial, fine and imprisonment, is not an adequate remedy. In the interior as well as on the sea-coast, the protection of health and life require measures more expeditious and effective than compensation and punishment. In many cases where public or private rights are infringed in a manner not involving life or health, immediate relief, of a specific and preventive character, such as is furnished in the equity jurisdiction, may be indispensable. The total obstruction of a main street of Manchester or Concord by the erection of a building, would be a nuisance for the abatement of which it would not be necessary to wait for a session of court. The issue of an equitable process for the immediate clearance of the street would not be barred by the circumstance that the wrongdoer might suffer as much from a temporary order as from a final decree. It has never been understood that the bill of rights abolished the necessary powers of summary protection exercised by all governments, and rendered it impossible to deprive an infected person of his liberty in quarantine, destroy property and life by forcibly stopping an infected; ship, or maintain public or private rights in any case of emergency and irreparable mischief, without a previous trial by jury. The limitation of legislative power by the constitutional reservation of private rights does not destroy the efficiency of government in all cases in which public or private rights require immediate and vigorous action.

“In regard to public nuisances, the jurisdiction of courts of equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth.....In cases of public nuisances, ... an indictment lies to abate them, and to punish the offenders. But an information also lies in equity to redress the grievance by way of injunction.” Sto. Eq. Jur., ss. 921, 923. “In modern times, courts of law frequently interfere, and grant a remedy under circumstances in which it would certainly have been denied in earlier periods. And sometimes the legislature, by express enactments, has conferred on courts of law the same remedial faculty which belongs to courts of equity. ... In neither case, if the courts of equity originally obtained and exercised jurisdiction, is that jurisdiction overturned or impaired by this change of the authority at law in regard to legislative enactments ; for unless there are prohibitory or restrictive words used, the uniform interpretation is, that they confer concurrent and not exclusive remedial authority.” Sto. Eq. Jur., ss. 80, 64 i. The wrongful flowage of a meadow by a millpond is a nuisance for which the injured party is entitled to damages for the past (recoverable in an action of trespass on the case), and an injunction for the future (obtainable on a bill in equity). Neither of his civil remedies would be taken away by a statute making the wrong a criminal offence, punishable, on indictment, by fine and imprisonment. His right to specific relief on a bill in equity would not be affected by a further statutory provision authorizing the same relief in a criminal prosecution of the offender. Wells v. Pierce, 27 N. H. 503, 512, 513; Alden v. Gibson, 63 N. H. 12.

“When the plaintiff prevails in an action of tort for a nuisance, the court may, in addition to the usual judgment for damages and costs, enter judgment that the nuisance be abated and removed, and may award ... a separate warrant to the proper officer, requiring him to abate and remove the nuisance at the expense of the defendant in like manner as public and common nuisances are-abated and removed.” Mass. Pub. St., c. 180, s. 1; Codman v. Evans, 7 Allen 431, 432. Notwithstanding this remedy at law, a bill in equity lies for an injunction against wrongful flowage. “ Such an order and warrant could only be to abate and remove the nuisance. The nuisance or cause of damage is the flowage, and that is occasioned by the dam, sluices, and gates; and the nuisance might be abated by hoisting the gates, or removing the planks from a wastewaju These might be so easily replaced, that there would be a strong temptation to do it; and I know of no power to enforce the execution of the warrant after it is once executed. Whereas a decree in equity . . . may be effectual and perpetual. ... It was contended in argument that the court would take jurisdiction of nuisances only in urgent cases, where the prompt intei-position of the court is necessary, by immediate injunction, and where the proceedings at law would be too slow. But we think this is no test of superior efficacy and completeness of the remedy in equity.” Bemis v. Upham, 13 Pick. 169, 171.

The abatement of a flowage nuisance by an injunction issued in an equity suit is a civil remedy, and not a punishment of a criminal offence. The legal character of the abatement does not depend upon the ownership of the property. If the land belongs to the state, the abatement of the nuisance is a relief of the plaintiff from future wrong, and not a penalty inflicted upon the defendant for the past. Neither does the legal character of the abating process depend upon the form of the action in which the injured party obtains redress. A prosecution under the bastardy act is a civil suit, although the procedure is mostly criminal. The object of the statute is to compel the defendant to indemnify the public and the mother of the child against expenses. Castles v. Welch, 63 N. H. 369 ; Littleton v. Perry, 50 N. H. 29-32; Ford v. Smith, 62 N. H. 419. Other statutes deal with him as a criminal. G. L., c. 274, ss. 1, 2, 4. He is not punished twice for one offence. In some cases of homicide an indictment has been used as a civil action for the recovery of compensation. G. L., c. 282, s. 14; State v. M. & L. R. R., 52 N. H. 528, 548, 549.

On an indictment for larceny, when the defendant is convicted, the owner of the stolen property is entitled to judgment and execution in common form against the convict for the value thereof, deducting the value of such part thereof as has been returned, with reasonable damages ; and the defendant, if committed on the execution, has the same relief as if it had issued in an action of trespass. G. L., c. 278, s. 14. In such a case, the form of action is criminal, and the cause of action and the remedy are both criminal and civil, as they are when a judgment against the defendant on an indictment for nuisance is enforced by a mittimus punishing him for a wrong done before the indictment was found, and an abating process for the future specific and equitable relief of the injured party. Reg. v. Stephens, L. R. 1 Q. B. 702, 708, 709; 1 Bish. Cr. L., s. 1074. The public character of the injured party is not a constitutional ground on which the civil remedy can be refused.

In State v. Crawford, 28 Kans. 726 (an action to abate a liquor saloon, declared by statute to be a common nuisance), the court say (pp. 735, 736), “ While it is unquestionably true that the keeping of the saloon in question is a criminal offence, and its operation involves the commission of many criminal offences, yet we cannot think that these facts can possibly take away any of the jurisdiction which courts of equity might otherwise exercise. It would seem to us that all sound reason and the great weight of authority is against the objection. ... At common law, all public nuisances were public offences ; and if the proposition is sound that no nuisances can be enjoined, except such as are not public offences, then, where the common law has full force, no public nuisance could ever be enjoined.” Littleton v. Fritz, 65 Iowa 488, was an action upon a statute which provided that “Any citizen of the county where such [liquor] nuisance exists, or is kept or maintained, may maintain an action in equity to abate and perpetually enjoin the same.” The constitutional reservation of the right of jury trial “secures the right,” say the court (pp. 491, 494, 495), “ in all cases in the trial of which a jury was necessary, according to the principles of the common law. . . . The jurisdiction of courts of equity to enjoin and abate nuisances is of very ancient origin. . . Such a case being of equitable cognizance, neither party could, at the time of the adoption of the constitution, demand a jury trial as matter of light. . . . One maintaining a nuisance may not only be punished in a criminal proceeding, but a civil action at law to recover damages in a proper case, and an action in equity to restrain the nuisance, may be prosecuted against him. . . . The defendant, in order to succeed in the defence that the proceeding by injuction is an attempt to enforce a criminal law by civil process, demands in effect that the courts must establish the principle that because the nuisance complained of is a crime, it is entitled to favor and protection in a court of equity. . . . There are many adjudged cases . . . which expressly hold that the fact that a nuisance is a crime, and punishable as such, does not deprive equity of its jurisdiction to restrain and abate it by injunction.”

Carleton v. Rugg, 149 Mass. 550, was a petition upon the Massachusetts liquor nuisance act of 1887, of which our law is a substantial copy. It was held that the act was constitutional; that the suit was not a proceeding to punish am offender for the crime of maintaining á nuisance ; that the fact that keeping a nuisance is a crime does not deprive a court of equity of the power to abate the nuisance; and that the objection that the statute makes no provision for a trial by jury applied as well to nearly all legislation-giving jurisdiction in equity. Three judges dissented, on the ground that statutes against the sale of intoxicating liquor had never been enforced by injunction in equity when the constitution-was adopted; the legislature intended by the act of 1887 to provide a mode of punishing criminal violations of the liquor law without jui-y trial, and this purpose was inconsistent with the defendant’s protection “ by the judgment of his peers, or the law of the land.”

State v. Noyes, 30 N. H. 279, was an indictment upon c. 245, Laws 1845, which provided that a bowling alley within twenty-five rods of a dwelling-house, store, shop, school-house, or place of public worship, should be taken and deemed to be a public nuisance. The defendant objected to judgment on the ground that the act was unconstitutional; that it did not authorize fine or imprisonment, but only an abatement of the nuisance; and that as-the indictment contained no allegation that the nuisance continued to exist at the time the indictment was found, no judgment of abatement could be rendered. It was held that the act was constitutional; that for the statutory nuisance the defendant was punishable by fine and imprisonment at common law; that a judgment that the nuisance be abated could only be rendered where it was alleged and proved that the nuisance continued to the finding of the indictment; but that the omission of a sufficient allegation on that point did not impair the residue of the indictment. “ It is-not to be conceded,” says Bell, J., delivering the opinion of the court (pp. 294, 295), “that places of gambling are not nuisances,, in the proper and legitimate sense of the word. They are certainly nuisances of the worst kind, in the sense in which disorderly houses-are so called. And at common law, keeping a gaming-house is a-nuisance. ... It may be said that a bowling alley is not of itself a nuisance, since it may either remain unused, or it may be-used only as a place of innocent amusement: that its injurious character depends upon the improper use alone. But the legislature may well determine that an instrument which tends to facilitate vicious-practices, is of itself an evil which ought to be prohibited.”

Under the act of 1887, it is the use made of a liquor saloon that makes the building a nuisance, and the nuisance is abated by an injunction against the use. State v. Manston, 64 N. H. 603, 604. If an act were passed authorizing an injunction against the crime of larceny, or against the violation of criminal law in general, if might be argued that punishment was the object of the act. It would hardly be contended that, for all purposes, every wrong can be made a common nuisance by legislation. “ The legislature cannot do indirectly what it cannot do directly; it cannot change the nature of things by affixing to them new names.” Field, J., in Carleton v. Rugg, 149 Mass. 550, 565. I5ut it has not been shown that, for the suppression of nuisances, the power of the legislature to provide a civil remedy by injunction in equity is limited to such kinds of nuisance as had been invented when the constitution was adopted, or those that had been attacked in that way. “It is competent for the legislature to declare the possession of certain articles of property, either absolutely, or when held in particular places and under particular circumstances, to be unlawful, because they would be injurious, dangerous, or noxious; and by due process of law, by proceedings in ram, to provide both for the abatement of the nuisance and the punishment of the offender. Putrifying merchandise may be stored in a warehouse, where if it remain it would spread contagious disease and death through a community. Gunpowder, an article quite harmless in a magazine, may be kept in a warehouse always exposed to fire, especially in the night; however secreted, a lire in the building would be sure to find it, and the lives and limbs of . firemen and citizens, engaged in subduing the flames, would be endangered.” Fisher v. McGirr, 1 Gray 1, 27.

At common law, although gambling was not of itself unlawful (2 Bish. Cr. L., ss. 506, 532, Reg. v. Ashton, 1 E. & B. 286), common gaming-houses were nuisances. King v. Dixon, 10 Mod. 335; King v. Rogier, 1 B. & C. 272; Lord v. State, 16 N. H. 325. And so were houses of ill fame (Bac. Ab., Nuisance A, 1 Salk. 384, Com. v. Howe, 13 Gray 26, McAlister v. Clark, 33 Conn. 91, People v. Rowland, 1 Wheel. Cr. C. 286, State v. Bailey, 21 N. H. 343, State v. M'Gregor, 41 N. H. 407, State v. Foley, 45 N. H. 466), although fornication and adultery were offences cognizable only in the ecclesiastical courts. The doctrine of Com. v. McDonough, 13 Allen 581, 584, that keeping a house for the illegal sale of intoxicating liquor is not a nuisance at common law, may be open to'question. In Smith v. Com., 6 B. Mon. 21, it was held that keeping a house for such a purpose is a public nuisance. The court say, — ■“ The habitual perpetration of the prohibited offences in a bouse kept for tlie purpose constitutes the house a public nuisance, as it tends in a greater degree to the spread of the evil which was intended lo be prohibited by these enactments. There is a specific penalty for fornication and adultery; yet it is an offence and a much higher grade of offence to keep a bawdy house or a house where those practices are indulged. And though the single offence [selling liquor] may be punished by a specific fine, the keeping of a house where those offences are habitually encouraged and indulged is an offence of a much higher grade, and is punishable as such by an indictment at common law.” Bishop says that this doctrine, “ though apparently new in the law, is truly as old as the law itself. A man who holds out inducements for people to congregate together and commit violations of a statute, not only lends the concurrence of his will to the wrongful acts, but also does what most powerfully tends to disrobe the body politic of her virtue and of the drapery of that order which the hand of the government has thrown around her, or if he thus draws people together that in their presence he may himself infringe a law of his country, he accomplishes likewise the same evil end.” 2 Bish. Cr. L. (4th ed.) vol. 1, s. 1056. “The repeated, continuous, and persistent violations of the statute are what makes them [drinking saloons] nuisances, independent of the express terms of the statute declaring them to be such.....Every place where a public statute is openly, publicly, repeatedly, continuously, persistently, and intentionally violated, is a public nuisance.” State v. Craw ford, 28 Kans. 726, 738.

Among the cases to which the constitution refers for information concerning use and practice, are general classes in which such general principles as the common law of nuisance had been established before 1784. This law is applicable to a great variety of wrongs, old and new, that have the essential qualities of a nuisance, and are appropriately dealt with as cases of the class to which they naturally belong. Crowder v. Tinkler, 19 Ves. 617, 623; 3 Bl. Com. 5, 216; 4 Bl. Com. 166; High Injunc., ss. 772-784; Wood Nuis., cc. 1, 5, 7, 13, 14-19, 21, 24, 25; Sto. Eq. Jur., ss. 920-929. If dynamite, carelessly deposited by its owner on his own land, in a farming town, should endanger the property and life of but one neighbor, the civil and private remedy of an injunction would not be withheld on the ground that such relief had never been given in such a case when the constitution was adopted. If the nuisance were public, the explosive being stored in the most populous part of Manchester, an injunction could not be refused on account of the greater amount of property and life exposed to danger. Whether the wrong was or was not a criminal offence in 1784 or 1889, the public would be entitled to the civil remedy provided by equity law.

If the sale of intoxicating liquor had never been, and were not now, a criminal act, and the statute had not alluded to the subject of nuisance, but had merely provided that the use of a building for the common sale of intoxicating liquor should be stopped by injunction on a bill in equity, there would be no ground for holding that the statute was enacted for the purpose of inflicting criminal punishment in a civil suit. And an illegal purpose cannot be judicially found in the act of 1887. It could have been passed in its present form for the legal purpose of providing a civil remedy; and it would accomplish that object in the same manner and by the same civil process, whether it was made for that purpose, or with a design to enforce criminal law. The primary object was the suppression of a business that could be directly and constitutionally suppressed by civil process in civil suits. There was no occasion to abandon the direct mode of accomplishing that object, or to propose the use of civil process for the purpose of enforcing penal statutes. So far as such a design would be circuitous, it would be superfluous. Assuming that it would be fraudulent and illegal, and would invalidate the act, the only motive the legislature could have for entertaining it would be a desire to defeat the law they were attempting to make. There is nothing in the act that can overcome the presumption of constitutional intent. Dow v. Norris, 4 N. H. 16, 18 ; Bell v. Glazier, 13 N. H. 134, 138; Kennett's Petition, 24 N. H. 139, 141; Colony v. Dublin, 32 N. H. 432, 434; Opinion of Justices, 41 N. H. 555, 556; Cool. Con. Lim. 218-221, 257; Cool. Tax. 112. If this presumption could be set aside, there is no evidence or argument on which it could be found that the legislature preferred an illegal purpose to a legal one, in order to nullify their own work and shield a business which they regarded as a nuisance from the process they levelled against it.

“ The judgment of his peers or the lav of the land,” i'll article 15 of the Bill of Rights, is synonymous with “ the verdict of a. jury or due process of law.” Mayo v. Wilson, 1 N. H. 53, 55; Cool. Con. Lim. 430. By the common law, judgment may be given per legem terrae without the intervention of a jury in “ all cases in the courts of equity .... any legal process which was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be considered an exception to the right of trial by jury, and is embraced in the alternative ‘ the law of the land.’ ” State v. Allen, 2 M’Cord 55, 59, 60. “Due process of law undoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights.” Westervelt v. Gregg, 12 N. Y. 202, 209. “ It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized.” Brown v. Levee Com'rs, 50 Miss. 468, 479. “Due process of law in each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Cool. Con. Lim. 434. “ It refers to that law of the land .... which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.....Any legal pro ceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.” Hurtado v. California, 110 U. S. 516, 535, 537. It was held in that case that due process of law does not require an indictment by a grand jury in a prosecution by a state for murder. “ A state cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the constitution is met if the trial is had according to the settled course of judicial proceedings.” Walker v. Sauvinet, 92 U. S. 90, 92, 93 ; Kennard v. Louisiana, 92 U. S. 480; McMillen v. Anderson, 95 U. S. 37, 41, 42; Davidson v. New Orleans, 96 U. S. 97, 104, 105; Missouri v. Lewis, 101 U. S. 22, 31. “ It is a mistaken idea that due process of law requires a plenary suit and a trial by jury, in all cases where property or personal rights are involved.....That kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts.” Ex parte Wall, 107 U. S. 265, 289, 290.

Kansas v. Ziebold, 123 U. S. 623, 637, 638, 654, was a petition filed in a state court under section 13 of the Kansas act of 1885, which provided that “The attorney-general, county attorney, or any citizen of the county where such [liquor] nuisance exists, . . . . may maintain an action in the name of the state to abate and perpetually enjoin the same.” The suit was removed into the circuit court of the United States, and was there dismissed. On appeal taken by the state, it was held (pp. 672, 673) that proceedings in equity, for the purposes indicated in the thirteenth section of the statute, are consistent with due process of law; and “as to the objection that the, statute makes no provision for a jury trial in cases like this one,” the decision was that “such a mode of trial is not required in suits in equity brought to abate a public nuisance.” The decree dismissing the bill was reversed, and the cause was remanded with directions to enter a decree granting to the state such relief as the statute authorized. A perpetual injunction, issued on a bill in equity for abatement without the verdict of a jury, was due process of law, because, at common law, such process, in such a case, did not require a jury trial.

Eilenbecker v. Plymouth, 134 U. S. 31, was a complaint filed in a district court of Iowa, for violation of an injunction issued in an equity suit on the liquor law. Notice being given, the complaint was tried upon affidavits by the court without a jury. The defendant was found guilty, and an alternative judgment imposing a fine of five hundred dollars, or imprisonment for three months, was affirmed by the supreme court of the state, whose judgment was affirmed by the supreme court of the United States. The grounds of the defendant’s objections were the criminal nature of the entire proceeding under the statute, excessive fine, cruel and unusual punishment, and trial by the court on affidavits, without a jury, without an indictment, without due process of law, and without the equal protection of the laws. It was held that the district court had power to issue the injunction, and that the proceeding on the complaint for violation of the injunction “ is due process of law, and always has been due process of law'.’’ In the opinion, the court say (p. 40), — “If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond, that, so far as at present advised, it appears to us that all the powers of a court, whether at common law or in chancery, may be called into operation by a legislative body for the purpose of suppressing this objectionable traffic; and we know of no hindrance in the constitution of the United States to the form of proceedings, or to tire court in which this remedy shall be had. Certainly it seems to us to be quite as wise to use the processes of the law and the powers of the court to prevent the evil, as to punish the offence as a crime after it has been committed.” See Kidd v. Pearson, 128 U. S. 1, 16; Leisy v. Hardin, 135 U. S. 100, 122, 123.

In this jurisdiction a complaint for the violation of an injunction. or other decree, is not ordinarily tried on affidavits if either party objects to such evidence ; nor is it tried by jury. Butin our present practice there is a jury trial in many cases in which it is not a constitutional right. Tasker v. Lord, 64 N. H. 279, 283. It is sometimes necessary to consider by what method of investigation, and by what tribunal, the rights of the parties will probably be most accurately and completely ascertained and adjusted. Some questions cannot be so conveniently handled by twelve jurors as by a smaller number; some cannot be adequately and properly settled with the means to which jurors are by custom restricted. Davis v. Dyer, 62 N. H. 231, 235, 236; Bemis v. Upham, 13 Pick. 169, 171. C. R. Lumber Co. v. Olcott Falls Co. (65 N. H. 290, 391) is a bill in equity for an injunction against the maintenance of a dam across Connecticut river without a suitable'sluiceway for the passage of logs. If the question whether the dam in its present form is a nuisance by reason of the insufficiency of the sluice were submitted to a jury, and they found the dam a nuisance, the verdict would not inform the defendants wliat alterations should be made. If a trial is necessary, the interests of both parties require that the decision should specifically determine what sluice would be sufficient. A defective sluice may be no cause for demolishing the whole dam; and the case ought not to be tried upon a misleading issue. “ On the question of the proper form, dimensions. and place of a sluice, the jurisdiction of equity is as plain as in a partition of water-power between mill-owners, the ascertainment of lost boundaries, or the laying out of a private way. At-the trial term the court can cause the log-way to be located- and defined by a jury, and put upon them the duty of drawing a report containing a specification for the construction of the dam and sluice. But it has not been shown that the law of any country requires such work to be done by twelve unanimous persons.”

In the present case, if the-alleged use of a building is proved* the nuisance is to be abated by injunction. There is no occasion for the trial of any other issue than the simple one of use, and there is no legal reason why that issue should not be tried by jury. It is as properly determinable in that way as the question of fraud in such cases as Tasker v. Lord. The act of 1887, declaring the use of a building for either of several purposes to be a nuisance abatable in equity, does not introduce an exceptional mode of trial, or change the ordinary course of procedure on questions properly triable by jury (though not as a matter of constitutional right).

A nuisance cannot be abated, with or without legal process, if it has been discontinued, and has not been renewed when proceedings are begun against it. State v. Noyes, 30 N. H. 279, 298. A suit in equity is not commenced until the bill is filed. Clark v. Slayton, 63 N. H. 402. The statute does not authorize the maintenance of a suit, and the rendition of judgment, upon a cause of action that ceased to exist before the suit was brought.

Case discharged.

Doe, C. J., did not sit: the others concurred.