action for the same cause in the other. The judges of one court cannot control the process of another.3 A suit to enjoin litigation in the State courts, and to bring all the litigated questions before the circuit court, cannot be sustained except as provided in bankruptcy proceedings. Courts of concurrent jurisdiction cannot act in conflict with each other. 5

1 United States v. Lancaster (Ga.), 44 Fed. Rep. 885, 896.

2 Shelby v. Bacon, 10 How. 56.

3 Duncan v. Darst, 1 How. 301; Tefft v. Sternberg (Ga.), 5 L. R. A. 221; Nougue v. Clapp, 101 U. S. 551.

4 Haines v. Carpenter, 91 U. S. 254.

5 Sharon v. Terry (Cal.), 26 Fed. Rep. 337; 13 Sawy. 387; Hamilton v. Walsh, 23 Fed. Rep. 420; Hunt v. Fisher, 29 Fed. Rep. 801; Yick Wo. v. Crowley, 26 Fed. Rep. 207; Lauderdale Co. v. Foster, 23 Fed. Rep. 516; McWhirter v. Halstead, 24 Fed. Rep. 828; Ex parte Schulenburg, 25 Fed. Rep. 211; Weil v. Calhoun, 25 Fed. Rep. 865; Wagner v. Drake, 31 Fed. Rep. 851; Suess v. Noble, 31 Fed. Rep. 855. See Rev. Stats. U. S. sec. 720.

§ 73 d. Civil cases in law and equity.-A case in law and equity consists in the right of one party as well as of the other, and arises when its correct decision depends on the Constitution or laws of the United States; and the record should show that the Constitution or some law or treaty is drawn in question.2 They must be confined to the cases and subjects defined by the acts of Congress, and to those powers which the high court of chancery in England exercised at the time of the adoption of the Constitution.3 Cases at law include suits in which legal rights are to be determined as distinguished from those in which equitable rights are to be determined; but a case can only be considered when the subject-matter is submitted in the form prescribed by law. 5 Yet they will enforce equitable rights, whether they originate by contract, local usage, or by the statute of a State in either real or personal actions; and although the State law gives exclusive jurisdiction to a State court; and even if no remedy exists in the State court. The jurisdiction embraces suits in which legal rights are to be determined, as distinguished from rights in equity;" and if the parties have the required citizenship, it has jurisdiction to enforce the remedy given by a State statute. 10 Suits in which relief is sought, according to the principles and practice in equity cases, are 'cases in equity,' 11 the true test

66

being whether there is a plain, speedy and adequate remedy at law. 12 The jurisdiction in suits in equity coincides and is coextensive with the jurisdiction in chancery as exercised in England, and is not affected by the jurisprudence of the State in which the court sits as to practice and procedure;13 but the rule adopting the equity jurisprudence of England applies only to the remedy; and if a right exists within a State which cannot be enforced by law, relief may be sought, even though it originates under a State statute or a local usage.15 The jurisdiction in equity must be exercised within the limits prescribed by the Constitution. 16

1 U. S. v. Williams, 4 Cranch C. C. 392; Cohens v. Virginia, 6 Wheat. 379; Osborn v, Bank, 9 Wheat. 738; Ex parte Milligan, 4 Wall. 114; Jones v. Steward, 41 Barb. 272.

2 Mills v. Brown, 16 Peters, 525; Lawlor v. Walker, 14 How. 149; Railroad Co. v. Rock, 4 Wall. 180; hyan v. Thomas, 4 Wall. 603.

3 Forstain v. Ravenel, 17 How. 369: Loring v. Marsh, 2 Cliff. 469; Baker v. Riddle, Bald. 394; Pierpont v Fowle, 2 Wood. & M. 23.

4 Parsons v. Bedford, 3 Peters, 433; Fenn v. Holme, 21 How. 486; and see Strother v. Lucas, 6 Peters, 768; 12 Peters, 410; Parrish v. Ellis, 16 Peters, 453; Barnett v. Butterworth, 11 How. 669; Sheirburn v. DeCordova, 24 How. 423.

5 Robinson v. Campbell, 3 Wheat, 212; Osborn v. Bank, 9 Wheat. 738; Par sons v. Bedford, 3 Peters, 433.

6 Clark v. Smith, 13 Peters, 195; Lorman v. Clarke, 2 McLean, 568. See Smith v. Railroad Co., 99 U. S. 398.

7 Payne v. Hook, 7 Wall. 425; Parsons v. Lyman, 5 Blatchf. 170.

8 Fletcher v. Morey, 2 Story, 555.

9 Kohl v. U. S., 91 U. S. 367.

10 Goshorn v. Alexander, 2 Bond, 158; U. S. v. Block, 3 Bliss, 208; Ex parte Biddle, 2 Mason. 472; Railway Co. v. Widdon, 13 Wall. 270; Broderick's Will, 21 Wall. 503.

11 Robinson v. Campbell, 3 Wheat. 212; U. S. v. Howland, 4 Wheat. 108; Lorman v. Clarke, 2 McLean, 568; Gordon v. Hobart, 2 Sum. 401; Pratt v. Nonham, 5 Mason, 95; Cropper v. Coburn, 2 Curt. 465.

12 U. S. v. Howland, 4 Wheat. 108; Boyce v. Grundy, 3 Peters, 215; Gaines v. Chew, 2 How. 619; Williams v. Benedict, 8 How. 107.

13 Robinson v. Campbell, 3 Wheat. 212; Wheeling Bridge Case, 13 How. 421; Dodge v. Woolsey, 18 How. 331; Barber v. Barber, 21 How. 825; Payne v. Hook, 7 Wall, 425; Lorman v. Clarke, 2 McLean, 568; Fletcher v. Morey, 2 Story, 555; Gordon v. Hobart, 2 Sum. 401.

14 Meade v. Beale, Taney, 339.

15 Clark v. Smith, 13 Peters, 195; Fitch 7. Creighton, 24 How. 159: Lorman v. Clarke, 2 McLean, 568; Goshorn v. Alexander, 2 Bond, 158.

16 Baker v. Biddle, Bald. 394; Pierpont v. Fowle, 2 Wood & M. 23.

§73 e. Civil suits at law or in equity-Late decisions. The circuit court has no probate jurisdiction.1

But it has original jurisdiction in equity to compel an accounting by the administrator without a preliminary accounting before the probate court.2 A suit to annul a will as a muniment of title, and to restrain the enforcement of a decree admitting it to probate, may be maintained by original process in the circuit court if the parties are citizens of different States. 3 To set aside as fraudulent and void sales of a testator's land made under an order of a State court. The circuit court has jurisdiction where a trustee has committed a breach of trust, the plaintiffs being citizens of another State than that of the trustee. The fact that a citizen of another State is selected to administer for the purpose of conferring on the United States circuit court jurisdiction of an action to be brought by him does not defeat the jurisdiction. 6 The Federal courts will take equity jurisdiction of a bill by non-resident heirs-at-law against resilent heirs, to compel an accounting of the property of their intestate." It has jurisdiction to relieve against a title fraudulently obtained by enjoining the assertion of the fraudulent title. The proper circuit court of the United States may, without controlling, supervising, or annulling the proceedings of a State court, give such relief against its decree as is consistent with the principles of equity, upon the ground of fraud. A Federal court has jurisdiction of a suit to set aside its former decree for being fraudulently obtained, although by reason of present citizenship a purely original bill between the parties could not be maintained, as such a suit is but a continuation of the former controversy. 10 And a suit to enforce the performance of a contract is a suit to recover the contents of a chose in action, within the meaning of the provision in the first subdivision of this section.11

9

1 Ellis v. Davis, 109 U. S. 435. And see Everhart v. Everhart, 34 Fed. Rep. 82.

2 Prince v. Towns, 33 Fed. Rep. 161.

3 Gaines v. Fuentes, 92 U. S. 10; Everhart v. Everhart, 34 Fed. Rep. 82. 4 Johnson v. Waters, 111 U. S. 640.

5 Bacon v. Robertson, 18 How. 480.

6 Goff v. Norfolk etc. Co., 36 Fed. Rep. 299.

7 Rich v. Bray, 37 Fed. Rep. 273.

8 Robb v. Vos, 36 Fed. Rep. 132.

9 Arrowsmith v. Gleason, 120 U. S. 83; 21 Ohio L. J. 98.

DESTY REMOVALS.-9.

10 Foster v. Mansfield, C. & L. M. R. Co., 33 Fed. Rep. 627. 11 Shoecraft v. Bloxham, 124 U. S. 730.

§ 73 f. Remedies given by State statute.— A remedy given by State statute which can be enforced only in a court of equity may be enforced in the circuit court of the United States in a proper case.1 As a suit to bar the title of a former owner, and compel him to release. Or to compel the delivery up of certain instruments. Or to reform a policy of insurance. The remedy at law which will defeat the equitable jurisdiction of the Federal court may be a remedy at common law, and not merely a legal remedy given by a State statute.5 A new remedy in equity or the enlargement of an old one under State laws may be enforced in a Federal court, if not inconsistent with the fundamental principles of equity jurisprudence.6 The equitable jurisdiction of Federal courts, under the Judiciary Act of 1789, cannot be taken away by State statutes giving a right to equitable remedies in courts of law. States may create equitable rights which the circuit court will enforce where there is jurisdiction of the parties and of the subject-matter. Where the circuit court takes jurisdiction to enforce a remedy given by a State statute it can act only in accordance with the statute, and it possesses only the powers conferred by said statute.9 Where the local statute gives the remedy by a bill in equity to remove the cloud upon the legal title, without requiring the complainant to obtain prior possession, that remedy may be administered in appropriate cases by the courts of the United States.10 Even though the deed under which the plaintiff claims is void on its face.11 Bills quia timet belong to the ancient jurisdiction in equity; and the jurisdiction of Federal courts in such cases cannot be curtailed by State legislation giving a remedy by action at law.12 Their jurisdiction extends to a suit for the disclosure and distribution of assets held by an executor de son tort, although the probate system of the State afforded a complete remedy. 13

1 Frost v. Spitley, Bk., 121 U. S. 552; U. S. v. Wilson, Bk., 30 U. S. 110; Fechheimer v. Baum, 37 Fed. Rep. 167.

2 Land & R. Imp. Co. v. Bardon, 45 Fed. Rep. 706.

3 Clark v. Smith, 13 Peters, 195.

4 Rosenbaum v. Council Bluffs Ins. Co., 37 Fed. Rep. 724.

5 Grand Rapids & I. R. Co. v Sparrow, 36 Fed. Rep. 210.

6 Land & R. Imp. Co. v. Barden, 45 Fed. Rep 706; Holland v. Chal len, 110 U. S. 15.

7 Hartford F. Ins. Co. v. Bonner Mercantile Co., 44 Fed. Rep. 151; Smith v. Fort Scott etc. R. Co., 99 U. S. 398.

8 Smith v. Fort Scott etc. R. Co., 99 U. S. 398

9 Railroad Co. v. Telegraph Co., 112 U S. 306.

10 United States v. Wilson, 118 U. S. 86; Chapman v. Brewer, 114 U S. 153. Or to quiet title: Holland v. Challen, 110 U. S. 13; Reynolds v. First National Bank, 112 U. S. 405.

11 Reynolds v. First National Bank of Crawfordsville, 112 U S. 405; Clark v. Smith, 13 Peters, 195; Ex parte McNiel, 13 Wall. 236; Case of Broderick's Will, 21 Wall. 503; Holland v. Challen, 110 U. S. 15.

12 McConihay v. Wright, 121 U. S. 201.

13 Rich v. Bray, 37 Fed. Rep. 273.

§ 73 g. Law and equity remedies distinct. — Remedies in the courts of the United States are at common law or in equity, according to the essential character of the case, uncontrolled in that particular by the practice of the State courts. Remedies in Federal courts, at law or in equity, are not according to the practice of the State court, but according to the principles of common law and equity." Although the State code gives the chancery court of the State jurisdiction over an action of ejectment, this does not efface the distinction between legal and equitable rights and remedies; and could not confer upon the courts of the United States jurisdiction in equity to try cases at common law. A Federal court has no jurisdiction of a suit in equity in which a claim only cognizable at law is united with a claim for equitable relief.* Jurisdiction, as between the law side and the equity side of the Federal courts, must be determined by the essential character of the case. 5 Unless the case comes under some of the recognized heads of equitable jurisdiction, the remedy of the party is at law. A Federal court can entertain a suit to impeach a judgment for fraud, although it is rendered by a State court. Federal courts have jurisdiction of equity suits in foreclosure only where it is given by the diverse citizenship of the parties. 8 A bill to foreclose may be brought in a court of the United States, by the mortgagee, against any proper parties residing in the State of the mortgagor. The jurisdiction is not defeated by the fact that the real estate in question lies in another State, 10 The circuit courts do not lose any of their equity