Page:Federal Reporter, 1st Series, Volume 9.djvu/868

 HEBDSMAN V. LEWIS. 853 �over demanda Of the firm ; nor will such mortgage be set aside for that reason by a court of equity, unless, perhaps, when created in contemplation of insolv- ency, to give an improper preference. Nat. Bank of Metropolls v. Spragtie, 20 N. J. Eq. 13. See, also, Wate7-man v. Runt, 2 E. 1. 298. If a partnership may thus execute a valid mortgage, to secure the individual debt of one part- ner, much more may it legally encumber its real estate, by mortgage, to secure a firm debt, aa in Lancaster Bank v. Myley, 13 Pa. St. 544, cited in the prin- cipal case. And, as stated by the learned judge who delivered the opinion in the principal case, if the partners may encumber their real estate by mortgage, no reason is seen, there being no unlawful preference created, why they may not resort to any other lawful method of creating a lien upon such property. No case has been found upon the precise question involved in the principal case, but, upon principle, its coiTeetness seems beyond question. �Union College of Laio of Chicago, January 18, 1882. �Maeshall D. Ewell. ���Heedsman and others v. Lewis and others. �{Circuit Court, E. D. New York. January 30, 1882.) �1. Equitt— Issues of Pact. �Neither party to a suit in equity brought in a federal court has an absolute right to have a question of fact ariaing in the cause passed on by a jury. �On a Motion to Award Feigned Issues. �H. P. Herdsman, for complainants. �Blatckford, Seward and Griswold e De Costa, for defendants. �Benedict, d. J. This is a motion in an equity cause for the trial before a jury upon feigned issues of certain questions of fact raised by the pleadings. It appears by the papers that no testimony what- ever has yetheen taken in the cause, and that the decision may turn upon the. question of fact, whether certain instruments described in the bill, and against which the plaintiffs seek relief, were procured by fraud and duress. While it is not doubted that a court of the United States, sitting in equity, may in a proper case direct questions of fact arising in an equity cause to be passed on by a jury, neither party has an absolute right to such a trial. Whether a jury trial be in any case necessary or desirable depends upon the faots of the case. In this case I see no necessity at this time for such a proceeding. Feigned issues are awarded, it is said, "in order to relieve and ease the conscience of the court," but here the necessity of such relief does not as yet appear. The surmise that the testimony, when taken before ��� �