thereof." "In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions and under such Regulations as the Congress shall make." In no other cases can it have original jurisdiction."

§ 4. The distinction between law and equity in the Federal courts.-The fact that those who framed the Constitution thought it necessary to separately mention law and equity, when blocking out the jurisdiction of the Federal courts, has caused some judges to think, and even to say in their opinions, that it was thereby intended that these branches of the law should always be kept apart. The better opinion, however, seems to be that this distinction between law and equity is enforced by the Constitution only to the extent to which the Seventh Amendment forbids any infringement of the right of trial by jury, as fixed by the common law. Yet, although a great number of the States of the American Union, and even England itself have fused together the two systems, in the courts of the United States, while the same judges have jurisdiction in each, the common law and equity are still as distinct as they were in the time of Coke and Bacon.

§ 5. General rules affecting the jurisdiction in equity of the Federal courts.- The jurisdiction in equity of the Federal courts is, subject to the limitations of the Constitution, substantially the same as that of the English Court of Chancery; although, in the absence of special statutory authority, they do not exercise those powers not judicial which were ex

Ames v. Kansas, 111 U. S. 449; Börs v. Preston, 111 U. S. 252; U. S. v. Ravara, 2 Dall. 297; Gittings v. Crawford, Taney, 1; St. Luke's Hospital v. Barclay, 3 Blatchf. 259; Graham v. Stucken, 4 Blatchf. 50.

"Constitution, art. III, § 2.

7 Marbury v. Madison, 1 Cranch, 137; Ex parte Vallandigham, 1 Wall. 243.

§ 4. 1 Parsons v. Bedford, 3 Pet. 433; Bennett v. Butterworth, 11 How. 669, 674; Hipp v. Babin, 19 How. 271, at p. 277; Fenn v. Holme, 21 How. 481, 486; Costs in Civil Cases, 1 Blatchf. C. C. 652, 654; Butler v.

Young, 1 Flip. 276, 278; Meade v. Beale, Taney, 339, at p. 361; Thompson v. Railroad Cos., 6 Wall. 134; Reubens v. Joel, 13 N. Y. 488, at p. 497.

2 Mr. Justice Matthews in Root v. Railway Co., 105 U. S. 189, 206. Compare Ex parte Boyd, 105 U. S. 647.

§ 5. Robinson v. Campbell, 3 Wheat. 212, at p. 221; Fenn v. Holme, 21 How. 481, at p. 484; Meade v. Beale, Taney, 339, at p. 361; Gordon v. Hobart, 2 Sumn. 401, at p. 405; Fletcher v. Morey, 2 Story, 555, at p. 567; Root v. Railway Co., 105 U. S. 189, at p. 207.

ercised over the persons and estates of infants, idiots, lunatics, and charities by the Lord Chancellor, as the representative of the sovereign and by virtue of the latter's prerogative as parens patriæ. It was said by Chief Justice Taney that the Constitution of the United States grants only judicial power at law and in equity to its courts; that is, powers at that time understood and exercised as judicial, in the courts of common law and equity in England. "And it must be construed according to the meaning which the words used conveyed at the time of its adoption; and the grant of power cannot be enlarged by resorting to a jurisdiction which the Court of Chancery in England, centuries ago, may have claimed as a part of its ordinary judicial power, but which had been abandoned and repudiated as untenable on that ground, by the court itself, long before the Constitution was adopted."

Another judge said recently: "The rule being that this equity power must be construed according to equity jurisdiction in England as exercised at the time of the adoption of the Constitution and of the judiciary act, any jurisdiction exercised by that court in its earlier history, but subsequently abandoned, and any enlargement of its jurisdiction by statute subsequent to 1789 are to be excluded." Chief Justice Taney also said: that it was undoubtedly true, in regard to equitable rights, that the power of the courts of chancery of the United States is, under the Constitution, to be regulated by the law of the English chancery; that is to say, the distinction between law and equity as recognized in the jurisprudence of England is to be observed in the courts of the United States, in administering the remedy for an existing right; that the rule applies to the remedy and not the right; and it does not follow that every right given by the English law, and which at the time the Constitution was adopted might have been enforced in the Court of Chancery, can also be enforced in a court of the United States; the right

2 Fontain v. Ravenel, 17 How. 369, at p. 391; Loring v. Marsh, 2 Clifford, 469, at p. 492; In re Barry, 42 Fed. R. 113; In re Burrus, Petitioner, 136 U. S. 586. But see the Late Corporation of The Church of Jesus Christ of Latter Day Saints v. U. S., 136 U. S. 1, 51, 56; s. c., 140 U. S. 665.

As to their jurisdiction to inquire into the custody of the lunatic, see King v. McLean Asylum (C. C. A.), 64 Fed. R. 325.

3 Taney, C. J., in Fontain v. Ravenel, 17 How. 369, 394, 395.

4 Alger v. Anderson, 92 Fed. R. 696.

must be given by the law of the State or of the United States." The Revised Statutes of the United States provide that: "Suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law." The Supreme Court has construed this statute substantially as follows: The effect of the provision of the Judiciary Act 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." "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." "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." 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

5 Meade v. Beale, Taney, 339, 361. 6 U. S. R. S., § 723.

7 Hipp v. Babin, 19 How. 271; Insurance Co. v. Bailey, 13 Wall. 616, 621; Grand Chute v. Winegar, 15 Wall. 373, 375; Lewis v. Cocks, 23 Wall 466, 470; Root v. Railway Co.,

105 U. S. 189, 212; Killian v. Ebbinghaus, 110 U. S. 568, 573.

8 N. Y. Guaranty Co. v. Memphis Water Co., 107 U. S. 205, 214, per Bradley, J.

9 Whitehead v. Shattuck, 138 U. S. 146, 151, per Field, J.

suits." 10 "By inadequacy of the remedy at 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." 11 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.12

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. 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.14

"The adequate remedy at law which is the test of equitable jurisdiction in these courts, is that which existed when the Judiciary Act of 1789 was adopted, unless subsequently changed by Congress." 15

A state statute giving an adequate relief at law does not affect the equitable jurisdiction of a Federal court."

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. 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

10 Buzard v. Houston, 119 U. S. 347, 351, 352, per Gray, J.

11 Thompson v. Allen Co., 115 U. S. 550, 554, per Miller, J.

16 Missouri, K. & T. Ry. Co. v. Elliott, 56 Fed. R. 772; Mississippi Mills v. Cohn, 150 U. S. 202; Sheffield Furnace Co. v. Witherow, 149 U. S.

12 Buzard v. Houston, 119 U. S. 347, 574; Smyth v. Ames, 169 U. S. 466; 352.

13 Smith v. Bourbon Co. 127 U. S. 105. Contra, Provisional Municipality of Pensacola v. Lehman, 57 Fed. R. 324, 331. As to the rule where the State courts give a remedy by certiorari, Ewing v. City of St. Louis, 5 Wall. 413; Taylor v. Louisville & N. R. Co., 88 Fed. R. 350, 359.

Lindsay v. First Nat. Bank, 156 U.S. 485.

17 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

14 Thompson v. Northern Pac. Ry. 316; Drexel v. Berney, 14 Fed. R. 268; Co., 93 Fed. R. 384. Post v. Toledo, C. etc. R. Co., 144

15 McConihay v. Wright, 121 U. S. Mass. 341, 4 New Eng. R. 221.

201, 206, per Matthews, J.

alone.18 Thus, it has been held that a suit to enforce the individual liability of stockholders or directors to creditors of a corporation,19 or to determine the question of the right of possession to land under section 2326 of the Revised Statutes when there are conflicting claims to patents before a land office,20 must be brought in equity.

The proceeding under the act of Congress to prevent the unlawful occupancy of public lands 21 is a summary proceeding in the nature of a suit in equity and may be tried without a jury.22 In the absence of express provisions to that effect, it was held that a statute directing the Attorney-General 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 all 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.23

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 should be brought on the commonlaw side of the court.24

§ 6. State statutes cannot impair the jurisdiction nor regulate the practice of Federal courts of equity.- No State statute giving one of its courts - for example, a court of probate exclusive jurisdiction of a certain class of litigation can impair

18 Edgell v. Haywood, 3 Atk. 354; Hornor v. Henning, 93 U. S. 228; Terry v. Little, 101 U. S. 216; Manufacturing Co. v. Bradley, 105 U. S. 175; Doe v. Waterloo Min. Co., 43 Fed. R. 219.

19 Hornor v. Henning, 93 U. S. 228; Terry v. Little, 101 U. S. 216; Manufacturing Co. v. Bradley, 105 U. S. 175; Stone v. Chisolm, 113 U. 302. But see as to the Maine statute, Alderson v. Dole (C. C. A.), 74 Fed. R. 29. Under Kansas Gen. Stat., ch. 23, the creditor may proceed at law or in equity. N. Y. Life Ins. Co.

v. Beard, 80 Fed. R. 66. As to proceedings under the Texas statute, see Thomson-Houston El. Ry. Co. v. Dallas Con. Tr. Ry. Co., 54 Fed. R. 1001.

20 Doe v. Waterloo Min. Co., 43 Fed. R. 219.

21 23 St. at L. 321.

22 Cameron v. U. S., 148 U. S. 301, 304.

23 Union Pac. Ry. Co. v. U. S., 59 Fed. R. 813.

24 Stephens v. Overstolz, 43 Fed. R. 771.