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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

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. etc. 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.,

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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

As to

ch. 23, the creditor may proceed at law or in equity. N. Y. Life Ins. Co. v. Beard, 80 Fed. 66. 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 2 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

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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. Craw-
fordsville 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,

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a will, or a will itself, for fraud, even though the statute provides that the suit shall be brought in a specified State court, and that an issue of fact therein shall be tried by a jury; since the Federal court of equity can empanel a jury for that purpose. But this cannot be done unless the proceeding is an action or suit inter partes, which relates to independent controversies, and not merely to those controversies which may arise upon an application for probate, or upon disputes concerning the setting aside of a probate of a will, when the remedy afforded by the court is a mere continuation of the probate proceeding, merely a method of procedure ancillary to the original probate allowed by the State court, for the purpose of giving to the probate its ultimate and final effect.6

A Federal court of equity will follow a State statute authorizing a person in possession of land and unmolested;" or

98 U. S. 176, 178, 25 L. ed. 238, 239; Connecticut Mut. L. Ins. Co. v. Cushman, 108 U. S. 51, 27 L. ed. 648.

V.

4 Broderick's Will, 21 Wall. 503, 519, 520, 22 L. ed. 599, 605, 606; Sawyer v. White, C. C. A., 122 Fed. 223 (Missouri Statute); Richardson v. Green, C. C. A., 61 Fed. 423; S. C., 159 U. S. 264, 40 L. ed. 142 (Oregon Statute); Williams Crabb, C. C. A., 59 L.R.A. 425, 117 Fed. 193, 204 (Illinois Statute); Wart v. Wart, 117 Fed. 766 (Iowa Statute); McDermott v. Hannon, 203 Fed. 1015 (N. Y. Statute). See § 54, supra.

5 Williams v. Crabb, C. C. A., 117 Fed. 193, 204, 59 L.R.A. 425; Wart v. Wart, 117 Fed. 766; McDermott v. Hannon, 203 Fed. 1015 (N. Y. Statute). See Chicago, B. & Q. R. Co. v. Oglesby, 198 Fed. 153. But in Sexton Mfg. Co. v. Singer Sewing Mach. Co., C. C. A., 194 Fed. 56; held that the section of the Mechanics' Lien Law of Illinois, which provided that the lien shall not be enforced to the prejudice of any other

creditor, encumbrancer or purchaser, unless the contractor within four

months after completion "shall either bring suit to enforce his lien thereof or shall file with the clerk of the circuit court in the county in which the building," is situated, a claim of lien (Ill. L. 1903, p. 230; Ill. R. S. 1905, Hurd. p. 1319), was not complied with by bringing a suit in the Federal court within the prescribed time, when no notice was filed in the office of the clerk of the State Circuit Court.

6 Farrell v. O'Brien, 199 U. S. 89, 50 L. ed. 101. See $54, supra. But see Preston v. Chicago, St. L. & N. O. R. Co., 175 Fed. 487.

7 Clark v. Smith, 13 Peters, 195, 10 L. ed. 123; U. S. Min. Co. v. Lawson, C. C. A., 134 Fed. 769; North Carolina Mining Co. v. Westfeldt, 151 Fed. 290; Kraus v. Congdon, C. C. A., 161 Fed. 18. Contra, Am. Ass'n v. Williams, C. C. A., 166 Fed. 17. See Woods v. Woods, 184 Fed. 159. A State statute giving a tenant under a lease for more than 10 years the right to maintain an

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