where a plain, adequate, and complete remedy may be had at law." The Supreme Court has construed a previous statute in the same words substantially as follows: The effect of this provision is that whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury. "It would be difficult, and perhaps impossible, to state any general rule which would determine in all cases, what should be deemed a suit in equity as distinguished from an action at law, for particular elements may enter into consideration which would take the matter from one court to the other; but this may be said, that, where an action is simply for the recovery and possession of specific real or personal property, or for the recovery of a money judgment, the action is one at law. An action for the recovery of real property, including damages for withholding it, has always been of that class."' 8 Accordingly, a suit in equity to enforce a legal right can be brought only when the court can give more complete and effectual relief in kind or in degree on the equity side than on the common-law side; as, for instance, by compelling a specific performance, or the removal of a cloud on the title to real estate; or preventing an injury for which damages are not recoverable at law, as in Watson v. Sutherland, 5 Wall. 74; or where an agreement procured by fraud is of a continuing nature, and its rescission will prevent a multiplicity of suits."9 "By inadequacy of the remedy at

6 Jud. Code, § 267, 36 St. at L. 1087, re-enacting U. S. R. S., 723.

7 Hipp v. Babin, 19 How. 271, 15 L. ed. 633; Insurance Co. v. Bailey, 13 Wall. 616, 621, 20 L. ed. 501, 503; Grand Chute v. Winegar, 15 Wall. 373, 375, 21 L. ed. 174, 175; Lewis v. Cocks, 23 Wall. 466, 470, 23 L. ed. 70, 71; Root v. Railway Co., 105 U. S. 189, 212, 26 L. ed. 975, 983; Killian v. Ebbinghaus, 110 U. S. 568, 573, 28 L. ed. 246; N. Y. Guaranty Co. v. Memphis Water Co., 107 U. S. 205, 214, 27

L. ed. 484, 487, per Bradley, J.: "This enactment certainly means something; and if only declaratory of what was always the law, it must, at least, have been intended to emphasize the rule, and to impress it upon the attention of the courts."'

8 Whitehead v. Shattuck, 138 U. S. 146, 151, 34 L. ed. 873, 874, per Field, J.

9 Buzard v. Houston, 119 U. S. 347, 351, 352, 30 L. ed. 451, 452, 453, per Gray, J.

law is here meant, not that it fails to produce the money,-that is a very usual result in the use of all remedies,—but that in its nature or character it is not fitted or adapted to the end in view." 10 "When irreparable injury is spoken of, it is not meant that the injury is beyond the possibility of repair or beyond the possibility of compensation and damages; but it must be of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law." 11 "If the remedy at law is adequate in theory it deprives equity of jurisdiction, although practically it may be inadequate to secure the collection of the claim sued on." 12 Equitable jurisdiction does not accrue to the Federal court because it is thought that the law as administered by it is more favorable to a party seeking its aid than the law as administered by the courts of a State in which he has been sued.18 There may consequently be cases over which the English courts of chancery would have taken jurisdiction, which are not cognizable by the Federal courts when sitting at equity." 14

66

The facts stated, and the relief sought in the first pleading, and not its form or name, determine whether it invokes the jurisdiction and commences a suit at law or in equity.15 Where the complainant has a remedy at law by mandamus, the fact that a Federal court has no jurisdiction to grant the mandamus does not make the remedy at law inadequate.16 The fact that a judgment can only be enforced by application to a court of equity does not take the case from the common-law side of the court.17 "The adequate remedy at law which is the test of equitable juris

10 Thompson v. Allen Co., 115 U. S. 550, 554, 29 L. ed. 472, 473, per Miller, J.

11 Chicago General Ry. Co. v. C., B. & Q. R. R. Co., 181 Ill. 605, 611; quoted with approval in Donovan v. Pennsylvania Co., 199 U. S. 279, 305, 50 L. ed. 192, 204.

12 Safe Deposit & T. Co. v. City of Anniston, 96 Fed. 661, 663, per Shelby, J.

13 Cable V. United States Life Insurance Co., 191 U. S. 288, 48 L. ed. 188.

14 Buzard v. Houston, 119 U. S. 347, 352, 30 L. ed. 451, 453.

15 Armstrong Cork Co. v. Merchants' Refrigerating Co., C. C. A., 184 Fed. 199.

16 Smith v. Bourbon Co., 127 U. S. 105, 32 L. ed. 73. Contra, Provisional Municipality of Pensacola v. Lehman, 57 Fed. 324, 331; Stephens v. Ohio State Tel. Co., 240 Fed. 759, 767. As to the rule where the State courts give a remedy by certiorari, Ewing v. City of St. Louis, 5 Wall. 413, 18 L. ed. 657; Taylor v. Louisville & N. R. Co., 88 Fed. 350, 359.

17 Thompson v. Northern Pac. Ry. Co., 93 Fed. 384.

diction in these courts, is that which existed when the Judiciary Act of 1789 was adopted, unless subsequently changed by Congress. "'18 A State statute giving an adequate relief at law does not affect the equitable jurisdiction of a Federal court.19 Whether the equitable jurisdiction is lost when a statute of the United States gives the same or adequate relief at law,-as, for example, in the case of discovery, has not yet been settled.20

§ 81a. Equitable jurisdiction to enforce rights created by statutes of the United States. If a statute of the United States creates a new right, the remedy will be in equity if the relief thereby afforded is in analogy with a species of relief ordinarily given by equity alone. Thus, it has been held that a suit to enforce the individual liability of stockholders or directors to creditors of a corporation,2 or to determine the question of the

18 McConihay v. Wright, 121 U. S. 201, 206, 30 L. ed. 932, 933, per Matthews, J.

19 Missouri, K. & T. Ry. Co. v. Elliott, 56 Fed. 772; Mississippi Mills v. Cohn, 150 U. S. 202, 37 L. ed. 1052; Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 37 L. ed. 853; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819; Lindsay v. First Nat. Bank, 156 U. S. 485, 39 L. ed. 505; Travelers' Protective Ass'n v. Gilbert, C. C. A., 55 L.R.A. 538, 111: Fed. 269. Borden's Condensed Milk Co. v. Baker, C. C. A., 177 Fed. 906, where the State statute gave relief in certiorari; Union Pac. R. Co. v. Board of Com'rs of Weld County, Colo., C. C. A., 222 Fed. 651; Nevada-California Power Co. v. Hamilton, 235 Fed. 317; Second Nat. Bank v. Georger, 246 Fed. 517; Western Union Tel. Co. v. Trapp, C. C. A., 186 Fed. 114, a suit to enjoin the collection of taxes. City Council of Augusta, Ga. v. Timmerman, C. C. A., 233 Fed. 216; McDougal v. Mudge, C. C. A., 233 Fed. 235. Contra, as to suit to enjoin the collection of taxes. City Council of

Augusta v. Timmerman, 227 Fed. 171. See infra, § 82.

20 Compare Vaughan v. Central Pac. R. Co., 4 Sawy. 280; Pratt v. Northam, 5 Mason, 95; Peters v. Prevost, 1 Paine, 64; Home Ins. Co. v. Stanchfield, 1 Dill, 424; Markey v. Mut. Ben. Life Ins. Co., 6 Ins. L. J. 537; Heath v. Erie R. Co., 9 Blatchf. 316; Drexel v. Berney, 14 Fed. 268; Post v. Toledo, C. ete. R. Co., 144 Mass. 341, 59 Am. Rep. 86, 4 New Eng. R. 221.

§ 81a. 1 Edgell v. Haywood, 3 Atk. 354; Hornor v. Henning, 93 U. S. 228, 23 L. ed. 879; Terry v. Little, 101 U. S. 216, 25 L. ed. 864; Manufacturing Co. v. Bradley, 105 U. S. 175, 26 L. ed. 1034; Doe v. Waterloo Min. Co., 43 Fed. 219.

2 Hornor v. Henning, 93 U. S. 228, 23 L. ed. 879; Terry v. Little, 101 U. S. 216, 25 L. ed. 864; Manufacturing Co. v. Bradley, 105 U. S. 175, 26 L. ed. 1034; Stone v. Chisolm, 113 U. S. 302, 28 L. ed. 991; Goss v. Carter, C. C. A., 156 Fed. 746. But see as to the Maine statute, Alderson v. Dole, C. C. A., 74 Fed. 29. Under Kansas Gen. Stat.,

right of possession to land under section 2326 of the Revised Statutes when there are conflicting claims to patents before a land office,3 must be brought in equity. The statute authorizing a suit to quiet title by an adverse claimant to public lands in Alaska does not apply to contests between homestead settlers and locators of mining claims as to the mineral or nonmineral character of land; 5 a complaint by the receiver of an insolvent bank against former directors to recover a dividend fraudulently and unlawfully declared and paid, and also to recover money illegally paid out of capital for the surrender of stock certificates was held to state a cause of action at common law. A suit under section 5239 of the Revised Statutes to recover of a director of a national bank the damages sustained in consequence of excessive loans must be brought on the common-law side of the court," although the bank holds stock as security for the loan. A suit by the receiver of a national banking association, to recover dividends paid to stockholders when the corporation was insolvent, may be brought in equity.9 But it was held: that the liability of directors under the Civil Code of California 10 for incurring indebtedness beyond the amount of the subscription of the capital stock of a corporation must be enforced by a bill in equity.11

It has been held: that suits by a trustee in bankruptcy, to recover money paid as a preference, should be brought in equity,12 that a suit to foreclose a mechanic's lien must be

ch. 23, the creditor may proceed at law or in equity. N. Y. Life Ins. Co. v. Beard, 80 Fed. 66. As to proceedings under the Texas statute, see Thomson-Houston El. Ry. Co. v. Dallas Con. Tr. Ry Co., 54 Fed. 1001. See notes to Rickerson Roller Mill Co. v. Farrell Foundry & M. Co., 75 Fed. 554, 23 C. C. A., 302; Scott v. Latimer, 33 C. C. A. 1.

3 Doe v. Waterloo Min. Co., 43 Fed. 219.

430 St. at L. 413.

5 Lassley v. Brownall, C. C. A., 199 Fed. 772.

6 Jesson v. Noyes, C. C. A., 245 Fed. 46.

7 Stephens v. Overstolz, 43 Fed. 771.

8 Corsicana Nat. Bank v. Johnson, C. C. A., 218 Fed. 822.,

9 Hayden v. Thompson, 71 Fed. 60. It was held otherwise under the Maine R. S. C. H. 47, § 89; a suit by a stockholder, John A. Roebling's Sons v. Kinicutt, 248 Fed. 596, 599. 10 § 309.

11 Re La Jolla Lumber & Mill Co., 243 Fed. 1004.

12 Parker v. Black, C. C. A., 151 Fed. 18. But see § 644, infra.

brought in equity.13 The proceeding under the act of Congress to prevent the unlawful occupancy of public lands 14 is a summary proceeding in the nature of a suit in equity and may be tried without a jury.15 In the absence of express provisions to that effect, it was held that a statute directing the AttorneyGeneral to take "proper proceedings to prevent any unlawful interference with the rights and equities of the United States under this act," and other acts of Congress, "and to have legally ascertained and firmly adjudicated al! alleged rights" of persons claiming any control or interest in the property of a corporation and to have annulled all contracts beyond the corporate powers; did not authorize the joinder of applications for common-law and chancery writs in the same suit.16

§ 82. State laws creating new rights are enforced by Federal courts at law or equity. If, however, the customary 1 or statute law of a State has created a new right, the Federal courts will enforce the same at law or equity, if it falls within the remedies authorized by either branch of their jurisdiction. Such are statutes giving a mortgagor or his judgment creditors a certain time within which to redeem land after a foreclosure sale; authorizing a suit to set aside the probate of

3

13 Armstrong Cork Co. v. Merchants' Refrigerating Co., C. C. A., 184 Fed. 199; Pioneer Min. Co. v. Delamotte, C. C. A., 185 Fed. 752. So held where there were conflicting liens to be adjusted, although the State statute gave a right of action at law. Healey Ice Mach. Co. v. Green, 181 Fed. 890.

14 23 St. at L. 321.

15 Cameron v. U. S., 148 U. S. 301, 304, 37 L. ed. 459, 460; Duffield v. San Francisco Chemical Co., 198 Fed. 942.

16 Union Pac. Ry. Co. v. U. S. 59 Fed. 813.

§ 82. 1 Neves v. Scott, 13 How. 268, 271, 14 L. ed. 140, 142; Gaines v. Fuentes, 92 U. S. 10, 20, 23 L. ed. 524, 528; Ellis v. Davis, 109 U. S. 485, 27 L. ed. 1006; Lorman v.

Clarke, 2 McLean, 568, 577; Nichols v. Eaton, 91 U. S. 716, 729, 23 L. ed. 254, 258; Fisher v. Shropshire, 147 U. S. 133, 37 L. ed. 109; St. Louis & S. F. R. v. S. W. Tel. & T. Co., C. C. A., 121 F 276.

2 Clark v. Smith, 13 Pet. 195, 10 L. ed. 123; Fitch v. Creighton, 24 How. (U. S.) 159, 16 L. ed. 596; Brine v. Insurance Co., 96 U. S. 627, 24 L. ed. 858; Mills v. Scott, 99 U. S. 25, 25 L. ed. 315; Van Norden v. Morton, 99 U. S. 378, 25 L. ed. 315; Cummings v. National Bank, 101 U. S. 153, 157, 25 L. ed. 903, 904; Holland v. Challen, 110 U. S. 15, 28 L. ed. 52; Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405, 28 L. ed. 733.

3 Brine v. Insurance Co., 96 U. S. 627, 24 L. ed. 858; Orvis v. Powell,