The cases where the jurisdiction of equity is exercised merely for the sake of the remedy are: where its interposition is needed to assist in obtaining a judgment at law by compelling a discovery from a defendant,21 or the perpetuation of the testimony of witnesses, 22 or their examination abroad,23 when it is feared that on account of death, illness, or absence, they cannot be obliged to attend upon the trial; in rare cases to grant a new trial.24 To set aside a judgment obtained by accident, mistake, or fraud.25 To set aside an award by arbitrators upon allegations of misconduct not apparent on the face of the award, nor affecting the jurisdiction of the arbitrators.26 Bank of U. S. v. Beverly, 1 How. 134, 151, 11 L. ed. 75, 82. 20 Aldrich v. Cooper, 8 Ves. 394; Trimmer v. Bayne, 9 Ves. 209; Re Metropolitan Railway Receivership, 208 U. S. 90, 52 L. ed. 403. A bill may be sustained when the defendant's land is so encumbered, by dif ferent liens, that it does not appear probable that it could be sold advantageously without an adjustment of the priority and rights of the several lienholders. Huff v. Bidwell, C. C. A., 151 Fed. 563. Where municipal bonds have been issued to an amount beyond the constitutional limit, a bondholder may sue to obtain a judicial determination as to what part, if any, of the debt thus created can be enforced. Everett v. Independent School District, 109 Fed. 697, 702; Truman v. Inhabitants of Town of Harmony, 198 Fed. 557. 21 Finch v. Finch, 2 Ves. Sr. 491; Moodalay v. Morton, 1 Bro. C. C. 469; Brown v. Swann, 10 Pet. 497, 500, 9 L. ed. 508; Heath v. Erie Ry. Co., 9 Blatchf. 316. 22 Earl of Suffolk v. Green, 1 Atk. 450; Pearson v. Ward, 1 Cox Eq. 177; Lord Dursley v. Berkeley, 6 Ves. 251; Richter v. Union Tr. Co., 115 U. S. 55, 29 L. ed. 345; N. Y. & B. C. P. Co. v. N. Y. C. P. Co., 9 Fed. 578. See U. S. R. S., §§ 863867, and infra, § 345.· 23 Moodalay v. Morton, 1 Bro. C. C. 469. 24 Folsom v. Ballard, C. C. A., 70 Fed. 12; McLaurin v. McLauchlin, C. C. A., 215 Fed. 345. 25 Metcalf v. Williams, 104 U. S. 93, 95, 26 L. ed. 665, 666; Coleman v. U. S., 181 Fed. 599. 26 Hartford Fire Ins. Co. v. Bonner Mercantile Co., 44 Fed. 151, 156. Nor, in the absence of a State statute authorizing such a proceeding, a bill to set aside the probate of a will. Broderick's Will, 21 Wall. 503, 22 L. ed. 599; Ellis v. Davis, 109 U. S. 485, 27 L. ed. 1006; Simmons v. Saul, 138 U. S. 439, 34 L. ed. 1054; Farrell v. O'Brien, 199 U. S. 89, 50 L. ed. 101; Goodrich v. Ferris, 145 Fed. 844. Cf. supra, $54; nor to cancel a will itself. Oakley v. Taylor, 64 Fed. 245; on account of a mistake, undue influence, forgery or other fraud. For a case where it was held that the suit was an action at law for damages for fraud and not in equity to set aside the probate, see Murphy v. Mitchell, 245 Fed. 219. But a Federal court may entertain a bill for the construction of a will duly es H 1 29 30 But not to set aside or enjoin proceedings to enforce a judgment at law because of fraud; unless the complainant had a defense to the action upon the merits,27 and either the fraud was extrinsic to the matter tried and not in issue in the former suit, nor then known to the complainant, or else some unconscientious advantage was taken of the successful judgment debtor during the progress of the suit without any fault or negligence upon his part.28 Nor to set aside a judgment at law or a decree in equity for an omission to serve a party to the same, except perhaps when the record shows an apparent service.30a Where a party refused to carry out a lost stipulation, that a judgment should abide the result of a writ of error to another judgment, but did not deny that he had made the same, it was held that a bill in equity to vacate the judgment could not be sustained, because the complainant had an adequate remedy at law.81 Nor it was held in one case to set aside a judgment recovered in favor of the United States through an alleged misunderstanding between the defendant and the district attorney.32 Nor for newly discovered evidence, unless the complainant shows that his failure to discover the same before the former trial was not attributable to his own want of diligence; nor when the evidence ought to have been within tablished. Wood v. Paine, 66 Fed. 807. See § 54 Supra. 27 White v. Crow, 110 U. S. 183, 28 L. ed. 113. Contra, Mills v. Scott, 43 Fed. 452. The bill must show that the judgment debtor had a good defense upon the merits. Christy v. Atchison, T. & S. F. Ry. Co. 214 Fed. 101. Where after judgment in an action for breach of a covenant of seisin the plaintiff's title was made good by the statute of limitations, defendant was allowed to maintain a suit in equity to enjoin the judgment's enforcement. Mather v. Stokely, C. C. A., 236 Fed. 124. 28 Life Ins. Co. v. Banks, 103 T. S. 780, 782, 26 L. ed. 608, 609; Cragin v. Lovell, 109 U. S. 194, Scotten v. See Knox 27 L. ed. 903; Nat. Surety Co. v. 29 Lewis v. Cocks, 23 Wall. 466. 30 Yeatman v. Bradford, 44 Fed. 536. 30 Simon v. Southern Ry. Co., 236 U. S. 115. 31 Brown v. Arnold, 127 Fed. 387. 32 Buckley v. U. S., 196 Fed. 429. the knowledge of the party when he made his defense to the action at law.33 To satisfy judgment out of property of a debtor which cannot be reached by an execution; 34 to prevent a threatened breach of a right,35 or compel the performance of a duty,36 33 Pickford v. Talbott, 225 U. S. 651, 56 L. ed. 1240. 34 Angell v. Draper, 1 Vern. 399; Scottish Am. Mtg. Co. v. Follansbee, 14 Fed. 125. See infra, § 151d. 35 Robinson v. Lord Byron, 1 Bro. C. C. 588; Osborn v. Bank of U. S., 9 Wheat. 738, 6 L. ed. 204; Vicksburg Water Works Co. v. Vicksburg, 185 U. S. 65, 82, 46 L. ed. 808, 815. Bills may be sustained; to enjoin the head of a department of the national government from acting beyond the scope of his authority to the prejudice of the complainant. Noble v. Union River Logging R. Co., 147 U. S. 165, 37 L. ed. 123. See infra, § 100. To enjoin a State officer from revoking a permit authorizing a foreign corporation to transact business within the State. Greenwich Ins. Co. v. Carroll, 125 Fed. 121. Infra, § 105. By a railroad company, to enjoin scalpers from selling non-transferable return tickets, already issued by complainant, and all tickets of a similar nature which complainant may issue in the future. Bitterman v. Louisville & N. R. R. Co., 207 U. S. 205, 52 L. ed. 171. But not a bill to protect rights which are purely political, even though right of property may be thereby incidentally affected. Mississippi v. Johnson, 4 Wall. 475, 18 L. ed. 437. Georgia v. Stanton, 6 Wall. 50, 18 L. ed. 721; Green v. Mills, C. C. A., 30 L.R.A. 90, 69 Fed. 852; Anthony v. Burrow, 129 Fed. 783; Dallas v. Dallas Consol. El. St. Ry. Co., (S. C., Texas, June 1912) 148 S. W. 292. Nor a bill to enjoin the removal of an officer of the United States or of the State, or a municipality, In re Sawyer, 124 U. S. 200, 31 L. ed. 402; White v. Berry, 171 U. S. 366, 376-378, 43 L. ed. 199. Nor a bill to enjoin the refusal to examine an applicant for a icense. Williams v. Potter, C. C. A., 223 Fed. 423. Nor a bill by the United States to enjoin a corporation from opening an exhibition on Sunday, where Congress has made an appropriation toward the expense of the enterprise upon the express condition that it shall be closed on the first day of each week. World's Columbian Exposition v. U. S., 56 Fed. 654. Nor a bill to enforce an "abstract right" which the complainant as serts, and which he may never practically exercise; as, for example, the right to remove an obstruction from a navigable river, when he does not allege that he is about to navigate the same. Spooner v. McConnell, 1 McLean, 337. A bill for an adjudication of a right to a fund was dismissed because the fund had not then come into existence. Reina v. Bracho, C. C. A., 256 Fed. 834. A statute providing for compensation to a stockholder who refuses to exchange his stock upon a consolidation does not afford an adequate remedy to a suit by one to restrain a consolidation not authorized by law. General Inv. Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 250 Fed. 160 the commission or omission of which, respectively, would inflict such an irreparable injury upon a person, that a judgment for damages,37 or the cumbrous legal process of ejectment,38 replevin,39 detinue, or account rendered,40 would be Nor, except in a very extraordinary case, a bill to enjoin slanders or libels. Francis v. Flinn, 118 U. S. 385, 30 L. ed. 165; Baltimore Car Wheel Co. v. Bemis, 29 Fed. 95. Contra, Emack v. Kane, 34 Fed. 46; Fourgeres v. Murbarger, 44 Fed. 292. See infra, § 284a. Nor to enjoin an action at law to which the complainant has a clear legal defense. Grand Chute v. Winegar, 15 Wall. 373, 21 L. ed. 174; Francis v. Flinn, 118 U. S. 385; Hapgood v. Hewitt, 119 U. S. 226, 30 L. ed. 369. See Drexel v. Berney, 122 U. S. 241, 30 L. ed. 1219. Nor, it has been said, upon the mere allegation of insolvency of the defendant. Strang v. Richmond, P. & C. R. Co., 93 Fed. 71, 74. 36 Stribley v. Hawkie, 3 Atk. 275; Huguenin v. Baseley, 15 Ves. 180; Hunt v. Rousmanier's Adm'rs, 1 Pet. 1, 7 L. ed. 27; Willard v. Tayloe, 8 Wall. 557, 19 L. ed. 501. But not a bill to compel a public officer to perform a ministerial duty. Craig v. Leitensdorfer, 123 U. S. 189, 31 L. ed. 114. Nor to fix the freight rates charged by railroads in intrastate commerce. Montana, W. & S. R. Co. v. Morley, 198 Fed. 991. Nor, in the absence of statutory authority for the collection of taxes, Preston v. Chicago, St. L. & N. O. R. Co., 175 Fed. 487, aff'd as Preston v. Sturgis Milling Co., C. C. A., 183 Fed. 1. Nor a bill to compel municipal, county or State officers to levy a tax; Walkley v. Muscatine, 6 Wall. 481, 18 L. ed. 930, to issue bonds, even in the case of a contract; Smith v. Bourbon County, 127 U. S. 105, 32 L. ed. 73; or since the remedy, when it exists at all, is by mandamus. Nor a bill for the appointment of a receiver to levy taxes, or to collect taxes previously levied, Rees v. Watertown, 19 Wall. 107, 22 L. ed. 72; Heine v. Levee Com'rs. 19 Wall. 655, 22 L. ed. 223; Meriwether v. Garrett, 102 U. S. 472, 26 L. ed. 197. Nor a bill to enjoin an insolvent municipality from expending its funds for other municipal purposes, Thompson v. Allen County, 115 U. S. 550, 29 L. ed. 472, Safe Deposit & T. Co. v. City of Anniston, 96 Fed. 661, 663. Nor to collect the amount of an insurance policy, Graves v. Boston Marine Ins. Co., 2 Cranch, 419, 2 L. ed. 324. See Houston Oil Co. of Texas v. Drake, C. C. A., 182 Fed. 202. Nor to collect a note from its maker, Dowell v. Mitchell, 105 U. S. 430, 26 L. ed. 1142, or an indorsee, Shields v. Barrow, 17 How. 130, 15 L. ed 158. Special School Dist. v. Jones, C. C. A., 250 Fed. 440. 37 Dumont v. Fry, 12 Fed. 21. In the case of special and peculiar chattels, papers and documents which cannot be replaced; for ex ample, a certificate of admission to the bar or a license to practice medicine the plaintiff may be entitled to a decree in equity for their reKeown v. Keown, 257 Fed. See $151d infra. turn. 851. 38 A landlord, after cancelling a mining lease, may file a bill against his lessee, to establish his right to no adequate remedy for the loss thereby occasioned; to pre possession, and to enjoin the latter from committing waste while mining ore upon the premises. Big Six Development Co. v. Mitchell, C. C. A., 1 L.R.A. (N.S.) 332, 138 Fed. 279. Independently of statute, it was held that a Federal court had jurisdiction of a bill to quiet title by a complainant out of possession; where the questions in issue included the establishment of the fact of an administratorship and the interpretation and effect of an administrator's deed, under which the complainant claimed. Butterfield v. Miller. C. C. A., 195 Fed. 200; and where the complainant alleged title to a tract of land embracing 147,000 acres against a number of defendants, each of whom claimed title to a separate portion thereof and was in possession of the same. Buchanan Co. v. Adkins, C. C. A., 175 Fed. 692. But see infra, § 141. But not solely for purposes that could be accomplished by an action in ejectment, Hipp v. Babin, 19 How. 271, 15 L. ed. 663; Lewis v. Cocks, 23 Wall. 466, 23 L. ed. 70; Ellis v. Davis, 109 U. S. 485, 27 L. ed. 1006; Killian v. Effiinghaus, 110 U. S.. 568, 28 L. ed. 246; U. S. v. Wilson, 118 U. S. 86, 30 L. ed. 110; Speigle v. Meredith, 4 Bliss. 120. South Penn Oil Co. v. Miller, C. C. A., 175 Fed. 729. Nor a bill for a partition filed by a tenant in common out of possession; who has been disseised by his co-tenant, Frey v. Willoughby, C. C. A., 63 Fed. 865; nor where the complainant's title is denied, American Ass'n v. Eastern Ky. Land Co., 68 Fed. 721, but see Fuller v. Montague, 59 Fed. 212; except when the complainant's title is not recognized at common law, Hopkins v. Grimshaw, 165 U. S. 342, 358; nor to quiet the title to real estate when the complainant's rights are purely equitable, Frost v. Spitley, 121 U. S. 552; nor, in the absence of a State statute authorizing such a suit, when he is not in possession of the land, U. S. v. Wilson, 118 U. S. 86, 30 L. ed. 110; Frost v. Spitley, 121 U. S. 552, 30 L. ed. 1010; §§ 82, 83, infra. New Jersey Land & Lumber Co. v. Gardener Lacy Lumber Co., 190 Fed. 861, but, in such a case, it may be presumed that the possession of uninclosed woodland follows the legal title, and in such a case equity has intervened, Graves v. Ashburn, 215 U. S. 331, 54 L. ed. 217. 39 Since imported goods in the custody of the collector cannot be replevied, U. S. R. S., § 934, a bill in equity may be maintained to reCover their possession, Pollard v." Reardon, 65 Fed. 848. But not usu ally, to restrain the seizure or to compel the return of personal property, Knox v. Smith, 4 How. 298, 11 L. ed. 983; Van Norden v. Morton, 99 U. S. 378, 25 L. ed. 453; Jones v. MacKenzie, C. C. A., 122 Fed. 390; but see Crane v. McCoy, 1 Bond, 422; unless its loss by the owner would result in irreparable injury by the destruction of his business and commercial credit, Watson v. Sutherland, 5 Wall. 74, 18 L. ed. 580; North v. Peters, 138 U. S. 271, 34 L. ed. 936; or by rendering it impossible for him to manage his farm, Breeden v. Lee, 2 Hughes, 484; or on account of its unique value, Pusey v. Pusey, 1 Vern. 273; Duke of Somerset v. Cookson, 3 P. Wnis. 389 |