2

be determined.' But the criminal jurisdiction of the courts of the United States, in the several states, has been held not to embrace offences at the common law, but only offences made such by statute. So also, it has been held that the Circuit Courts in the several states have no power to issue a mandamus to an officer of the United States, although a mandamus is a common law process to compel the performance of an official duty. But, at the same time, it appears also to have been held that the authority to issue this writ is within the scope of the judicial power of the United States; that it has not been communicated to the Circuit Courts in the several states, but that it is possessed by the Circuit Court for the District of Columbia, as a court of general common law powers."

§ 19 a. The 34th section of the Judiciary Act, which makes the laws of the several states rules of decision in trials at common law, in the courts of the United States, where they apply, except where the Constitution, treaties, or statutes of the United States otherwise direct, applies only to civil cases at common law, and not to criminal trials. The rules of evidence, therefore, and the rules which regulate the mode of proceeding in criminal trials in the courts of the United States, are the rules which were in force in the respective states in 1789, unaffected by any subsequent state law."

§ 20. The Constitution of the United States, as we have seen, extends the judicial power to cases both "in law and equity." The distinction adopted by this expression is the same as that established in the jurisprudence of England; and under it, the Equity Jurisprudence of the courts of the

Ibid., Judiciary Act of 1789, 34.

2 United States v. Hudson & Goodwin, 7 Cranch, 32. Same v. Coolidge, 1 Wheaton, 415. But see the doubts expressed in the latter case. 3 M'Intire v. Wood, 7 Cranch, 504. M'Clung v. Silliman, 6 Wheaton, 598. Kendall v. The United States, 12 Peters, 524.

The United States v. Reid, 12 Howard, 361.

United States embraces generally the same matters of jurisdiction and modes of remedy, which belong to the courts of equity in England, as distinguished from the cases and remedies appropriate to the courts of common law.1

§ 21. The Judiciary Act, in its distribution of jurisdiction, recognises the same distinction between suits "at common law and in equity;" and it declares "That suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate, and complete remedy may be had at law." This clause has been held neither to narrow nor enlarge the equity jurisdiction of the courts of the United States, as compared with the general boundaries of Equity Jurisprudence. The Supreme Court of the United States have declared that this clause is merely declaratory, and that it makes no alteration whatever in the rules of equity on the subject of legal remedy. It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration, as the remedy in equity.

§ 22. The purpose of the statute, therefore, is, to leave the concurrent jurisdiction of courts of equity and courts of law to be regulated by the general principles which determine the proper subjects of equitable relief in England. Thus, in cases of fraud, courts of law may afford relief; but there is a concurrent jurisdiction in courts of equity, in cases where the remedy at law is not adequate and complete for all the purposes for which the plaintiff may claim relief. Thus, a bill in equity will lie in a Circuit Court of the United States, to rescind an agreement for the sale and purchase of lands, on the ground of fraud, notwithstanding judgment has been

11 Story's Eq. Jurispr. 57; Robinson v. Campbell, 3 Wheat. 212, 221, 223; Parsons v. Bedford, 3 Peters, 433, 447; 3 Story's Commentaries on the Constitution, &c., 506, 507; U. S. v. Howland, 4 Wheat. 115. 2 Act of 24 Sept., 1789, ? 11. 3 Ibid. 16.

• Boyce's Executors v. Grundy, 3 Peters, 210; United States v. Howland, 4 Wheat. 108, 115; Bean v. Smith, 2 Mason, 252, 270.

obtained in an action at law, against the plaintiff, for the amount agreed to be paid, and notwithstanding he might have set up the fraud in defence to that action, because the remedy was partial and might not have terminated the controversy. So too, it has been held, that the Circuit Courts have concurrent jurisdiction, in equity, with courts of law, in all cases of fraud, including fraud in obtaining judgments and decrees in other courts; that there is but one exception to this, and that is, fraud in obtaining a will of real or personal estate, which is exclusively examinable in the tribunal having the jurisdiction of the probate of wills.2

§ 23. With regard to this exception, the grounds on which it rests have been somewhat narrowed by the Supreme Court of the United States. In a case where probate of a will had been fraudulently obtained, and a bill in equity was filed by the legatee under a subsequent will, alleging the fraud, and alleging that the subsequent will had been destroyed or suppressed by the defendants, and praying that effect be given to the latter will, and that the former be revoked; it was held, that although no title could be set up under the later will until it had been proved, the complainants were entitled to answers from the defendants in regard to both wills, to be used as evidence in the Court of Probate in establishing the one and revoking the other; and that if the Court of Probate should refuse to take jurisdiction, from a defect of power to bring the parties before it, lapse of time, or any other ground, it might become the duty of the Circuit Court, having the parties before it, to require them to go before the Court of Probate, and consent to the proof of the later will, and the revocation of the earlier one. It was also intimated by the court, that if this procedure should fail to procure the requisite action on both wills, perhaps the powers of a court of chancery might afford a remedy, where the right was clear, by establishing the will of later date."

'Boyce's Executors v. Grundy, 3 Peters, 210, 215.

2 Gould v. Gould, Howard, 619, 645.

Story, 516, 536;

Gaines and Ux. v. Chew, 2

3 Ibid. 619, 644.

§ 24. In another aspect of this case, also, an important question of equity jurisdiction was determined. The complainant claimed as heir-at-law, as well as legatee under the more recent will. The property of the testator had been sold under the former will to various parties, who were charged as having notice of the fraud of the executors in setting up and establishing it. In this form of procedure, the will thus fraudulently established was brought before the court collaterally, and the relief sought by the complainant did not require its revocation. If this proceeding had been between the heir-at-law and the devisee only, a court of law would have been competent to give a plain and adequate remedy; but as the functions of the executors under the fraudulent will had been long terminated, and the property, both real and personal, had passed into the hands of numerous purchasers, under various circumstances, which could be proved only by their answers, and which entered into the question of fraud, it was held, that a court of law could not give adequate relief, and that the powers of a court of equity were necessary to do complete justice between the parties.1

§ 24 a. So, too, the courts of the United States, as courts of equity, possess jurisdiction to maintain suits in favor of legatees and distributees for their portion of an estate, notwithstanding there may be a remedy at law on the administration bond; this class of cases being of concurrent and not of exclusive jurisdiction. In like manner, the circuit courts, as courts of equity, have concurrent jurisdiction with courts of law, in cases of dower, especially where partition, discovery, or account is prayed, and in cases of sale where the parties are willing that a sum in gross should be given in lieu of dower.3 Where the plaintiff has a remedy at law, and there is no other ground for coming into a court of equity than discovery, if the facts essential to the claim are exclusively within the knowledge of the defendant, he may be required to disclose them in

1 Gaines et Ux. v. Chew et al., 647 et seq.

2 Pratt v. Northam, 5 Mason, 95. 3 Herbert v. Wren, 7 Cranch, 370.

a court of equity, and the court being thus rightfully in possession of the cause, will proceed to determine the whole matter; but if the defendant disclose nothing, and the plaintiff supports his claim by evidence in his own possession, unaided by the confessions of the defendant, he will be left to assert his rights at law. So, too, in all cases of concurrent jurisdiction, the court that first has possession of the subject must decide it; and if the question has been already decided in a court of law, it cannot be reviewed in a court of equity, without the suggestion of some equitable circumstance, of which the party could not avail himself at law.2

§ 25. The jurisdiction of courts of equity, in cases of nuisance, may be exercised at the suit of private persons, notwithstanding there is a remedy at law, where there is imminent danger of irreparable mischief before the law can act.3

§ 26. Such are some of the principal illustrations, which show that the jurisdiction of the courts of the United States, as courts of equity, is co-extensive with the general equity jurisdiction administered by other courts of equity, possessing the full chancery powers known as such in English and American jurisprudence. A statement of the outline of those powers belongs to a treatise on Equity Jurisprudence, rather than to the present work. But having considered what, in general, must be the remedy at law to deprive a party of a remedy in equity, we have now to consider in what forum such legal remedy must be found, in order to exclude the equity jurisdiction of the courts of the United States.

§ 27. The right of a party to sue in the courts of the United States, depends upon his citizenship and the citizen

3

1 Russell v. Clark's Executors, 7 Cranch, 69, 89.

2 Smith v. M'Iver, 9 Wheaton, 532.

City of Georgetown v. The Alexandria Canal Company, 12 Peters, 91, 99.