extent of the powers vested in the district courts by the organic act, but, as a subject which has attracted general interest and germane to the question before us, we will briefly refer to it. The district court sits in two distinct capacities, as a local tribunal, and also exercising the jurisdiction of a federal court. As a local tribunal, its practice and course of procedure, provided its common law and chancery jurisdiction be not impaired, may be regulated by the local laws, which, however, must not infringe any principle of the constitution or any act of congress applicable to it, and we take occasion, although the question is not raised in the record of any of the causes now under consideration, to suggest to the legis lative assembly, as well as to the legal profession of the Territory, whether the civil practice act now in force, or the construction heretofore placed upon it, in so far as it permits legal and equitable claims or defenses to be united, be not erroneous. The supreme court of the United States, in Thompson v. Railroad Companies, 6 Wall. Rep., hold that "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 States are, at common law and in 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.” If it be true, as held, that the constitution and the acts of congress recognize and establish the distinction between law and equity, can the legislative assembly of the Territory, under the organic act, abolish that distinction in the territorial district courts, even while sitting as local tribunals? As federal courts, the district courts are understood to be governed, in all cases at common law, by the local VOL. I-17. rules of decision and of practice, where the constitution or statutes of the United States do not otherwise provide ; while in causes in equity the proceedings must conform to the rules governing causes in equity, notwithstanding the legislative assembly have, by statute, abolished the distinction between forms of proceeding at law and in equity, and have established but one form and course of proceeding in all civil actions. But to return: The right of jury trial, secured by the article of the constitution under consideration, referring not only to trials in the national courts established by the constitution, and the territorial district courts, at least while in the exercise merely of their local jurisdiction, not being embraced under its provisions, it is urged that the court below did not err in receiving the findings and rendering the decree in the principal cause now "under consideration. This proposition assumes that the cause is one at common law, and for the present we will so assume. This position could only be maintained by holding that, while the constitutional restriction applied to the federal judiciary, it did not extend to the legislative power intended to be restricted. We have already stated that it was designed to restrict all the departments of the federal government, legislative as well as judicial. If, then, it is restrictive upon congress as well as upon the federal courts, can congress, in the exercise of its power to govern a Territory, create a local legislature or local courts, and delegate to either a power which it does not itself possess, to deny the right in question? We think clearly it cannot. Even without the provision in the organic act, that the constitution and laws not locally inapplicable shall have the same force and effect in the Territory as elsewhere within the United States, the conclusion would be the same. Congress has no power, either directly or by a delegation of power to another body of its own creation, to deny to a citizen of a territory the right to a trial by jury in a suit at common law, where the value at controversy exceeds $20. It is further contended, however, that inasmuch as the act of the legislative assembly requires the same number of jurors as the common law, it is not an infraction of the constitution. This position is not tenable. "Trial by jury," as the words are used in the constitution, had, at the time of its adoption, a fixed legal signification, and from time immemorial has meant a trial by a tribunal of twelve men, acting only upon a unanimous determination. The origin of this mode of trial is lost in the dimness of the past, but from the earliest period down to the time of the adoption of the constitution, unanimity of twelve jurors alone has constituted a legal verdict. If the legislative assembly could dispense with one attribute or essential of a verdict, it could as well destroy the other, or repeal the right altogether. It can do neither; and, hence, the act in question is, in so far as it applies to actions at common law in which the value at controversy exceeds $20, unconstitutional and void. The causes before mentioned of Bray v. Batchelder, Snyder v. Tiernan, and Siegel et al. v. Jones & Lott, are all common law causes, and embraced within the foregoing principle, and the judgments in them must be reversed, and the causes remanded for new trial. The cause at bar (Kleinschmidt v. Dunphy et al.), however, is clearly one of chancery jurisdiction, and it remains now to consider the statute in reference to trials of causes in equity. The right of jury trial is not secured by the constitution. in causes of equity jurisdiction, and in the absence of statutory enactment, federal or territorial, it does not exist. In such cases the chancellor might, according to the established rules of chancery practice, call a jury to his aid, to determine questions of fact arising upon the hearing. Such verdict, however, would be merely advisory, and addressed solely to the conscience of the chancellor, who might wholly disregard it. We have seen that the civil practice act has provided the same manner of disposing of issues of fact in all civil cases, whether in law or in equity. It follows, from what we have said, that the legislative assembly has the same power as congress, within the limitations of the grant of power to it contained in the acts of congress and the constitution. Could congress confer the right of trial by jury of issues of fact in causes in equity in the federal courts? and could congress by law dispense, in such causes, with the requisites of a common-law jury, either in respect to number or unanimity? We think it could. We find nothing in the constitution preventing the exercise of such power. Hence, we conclude that the legislative assembly also possesses the power, under the organic act, as being a subject of rightful legislation, and contravening no provision of the constitution or of the acts of congress. This power they have exercised, and it is the province of the judiciary to construe, and not to make laws, and, in construing, to give effect to them so far as it may be done. We conclude, then, that the act in question, so far as it relates to trial of issues of fact in causes in equity, is constitutional and valid. The other errors assigned in the statement on appeal in this case were not urged in the briefs or arguments in this court, and we will only notice the refusal of the court to give the instructions asked by both parties. The court submitted to the jury only specific questions of fact, and gave all the instructions necessary in regard to the questions submitted, as no general verdict was required. On examination of the whole record we find no error sufficient to warrant a new trial. The decree of the court below is affirmed, with costs. Exceptions overruled. This cause was taken by appeal to the supreme court of the United States, and the decree of the district court was reversed. 11 Wall. 610. BAUTZ et al., appellants, v. KUнWORTH, respondent. AGREEMENT FOR BUYING LAND-how rescinded-purchase-money. Neither the vendor nor vendee can rescind a written agreement for the purchase of land, if the buildings thereon, which were not the chief inducement to such purchase, are destroyed by fire, without any fault of the vendor. The vendee cannot recover the portion of the purchase-money which he paid the vendor on this agreement before the fire occurred. Appeal from the Third District, Lewis and Clarke County. BAUTZ AND HORSKEY Commenced this action to recover $1,000, money had and received on an agreement. The court, WARREN, J., sustained Kuhworth's demurrer to the complaint and rendered judgment for defendant. The plaintiffs appealed. The facts appear in the opinion. CHUMASERO & CHADWICK, for appellants. The complaint states facts sufficient to constitute a cause of action, and the court erred in sustaining the demurrer thereto. Hilliard on Vendors, 73 et seq.; Sto. on Sales, § 423, 424, 448; 1 Sto. Eq., §§ 101, 102; Bouv. L. D. 465. SHOBER & LOWRY, for respondent. Appellants by the contract had the privilege of paying $5,500 May 3, 1869, and take the deed, or refusing to pay said sum and let the $1,000 go as stipulated damages. The appellants chose the latter and cannot recover what they have paid for the privilege of doing what they have done in the premises. The court below properly sustained the demurrer. Dakin v. Williams, 11 Wend. 67; Lester v. Jewell, 1 Kern. 453; 2 Pars. on Cont. 232, 233; Guzley v. Price, 16 Johns. 267. KNOWLES, J. The complaint in this cause presents the following facts as constituting plaintiffs' cause of action: Appellants made an agreement with respondent on the 5th day of April, 1869, for the purchase of a certain lot, |