3 the jurisdiction of the Federal courts. No State statute enlarging the powers of courts of common law can impair the jurisdiction of a Federal court of equity.2 No State statute diminishing or destroying an equitable remedy, or in any way regulating the practice in courts of equity, can have any effect upon the jurisdiction or practice of the Federal courts. Such are statutes requiring a mortgagor to tender the debt secured by his mortgage before filing a bill to redeem the mortgaged premises; requiring a bill to foreclose a mortgage given to secure a judgment to show that execution has been issued under the judgment and returned unsatisfied; requiring leave to be obtained from a State court before a suit can be brought to enforce a judgment therein entered; or the presentation of a claim to the comptroller before a suit can be brought against a city; forbidding an injunction against the collection of illegal taxes; requiring a bond to be given before an injunction can be granted; or regulating the form of the security then required or the proceedings to enforce the same; 10 determining what shall constitute notice of a pending suit; " authorizing persons to agree upon a statement of facts, and to stipulate that the court take jurisdiction to try a cause and render § 6. 1 Suydam v. Broadnax, 14 Pet. 67; Hull v. Dills, 19 Fed. R. 657; Semmes v. Whitney, 50 Fed. R. 666; Hershberger v. Blewett, 55 Fed. R. 170; Heaton v. Thatcher, 59 Fed. R. 731. 2 McConihay v. Right, 121 U. S. 201, 206, and cases cited. 3 Boyle v. Zacharie, 6 Pet. 648; Bein v. Heath, 12 How. (U. S.) 168, 179; Noonan v. Lee, 2 Black, 499, 509; Thompson v. Railroad Cos., 6 Wall. 134; Cowles v. Mercer County, 7 Wall. 118; Payne v. Hook, 7 Wall. 425; Railway Co. v. Whitton's Adm'r, 13 Wall. 270, 285; Smith v. Railroad Co., 99 U. S. 398. But see Massachusetts B. L. Ass'n v. Lohmiller (C. C. A.), 74 Fed. R. 23. It has been said, however, that proceedings for the foreclosure of a mortgage in a Federal court should proceed upon the ordi nary lines of such proceedings in the 11 State court. Deck v. Whitman, 96 Fed. R. 873; Knickerbocker Tr. Co. v. Penacook Mfg. Co., 100 Fed. R. 814. See, however, Nalle v. Young, 160 U. S. 624. 4 Gordon v. Hobart, 2 Sumn. 401. Dow v. Chamberlin, 5 McLean, 281. 6 Phelps v. O'Brien County, 2 Dill. 518. 7 Gamewell F. A. Tel. Co. v. Mayor, etc., 31 Fed. R. 312. 8 In re Tyler, Petitioner, 149 U. S. 164, 189. 9 Bein v. Heath, 12 How. (U. S.) 168, 178. 10 Bein v. Heath, 12 How. (U. S.) 168; Russell v. Farley, 105 U. S. 437; Meyers v. Block, 120 U. S. 206, 211. 11 McClaskey v. Barr, 48 Fed. R. 130, 132. But see Jones v. Smith, 40 Fed. R. 314. 14 a decree without pleadings; 12 authorizing an appearance of his general guardian to bind an infant not personally served with process; 13 authorizing the examination of a party before trial; providing that a county can only be sued in a specified State court; 15 forbidding a foreign corporation to sue until it has complied with a statutory condition.16 But not a statute that permitted a debtor to file a bill to compel the return or cancellation of securities for a usurious debt, without payment or the offer of payment of the amount borrowed with lawful interest." A State statute providing that if by mistake a suit was brought in equity which should have been at common law there should be no abatement, but that the cause be transferred to the common-law docket, was followed in the Federal court.18 The New York statute providing that, upon the consolidation of two corporations, suits pending by or against either shall not abate, will be followed by the Federal courts at equity, “not because the State statute is operative to regulate the practice and procedure of Federal courts in equity suits, but because, so far as the litigated life of the artificial person (properly a party to the suit when brought) is concerned, there has been no change, the only power which could destroy it having scrupulously refrained from doing so." 19 § 7. State laws creating new rights are enforced by Federal courts at law or equity.-If, however, the customary1 12 Nickerson v. Atchison, T. & S. F. R. Co., 1 McCrary, 383. But it has been held that equitable relief may be given on the submission, upon an agreed statement of facts, of an action of assumpsit brought on the common-law side of the court, and a stipulation that judgment should be rendered in accordance with the opinion of the court thereupon. Knight v. Fisher, 58 Fed. R. 991. 13 N. Y. Life Ins. Co. v. Bangs, 103 U. S. 780. 14 Dravo v. Fabel, 132 U. S. 487. 15 Cowles v. Mercer County, 7 Wall. 118; Lincoln County v. Luning, 133 U.S. 529. See Chicot County v. Sherwood, 148 U. S. 529; and infra, § 360. 16 Bank of N. A. v. Barling, 44 Fed. R. 641; affirmed, as Barling v. Bank of N. A. (C. C. A.), 50 Fed. R. 260. 17 Missouri, K. & Tr. Co. v. Krumseig, 172 U. S. 351. But see Matthews v. Warner, 6 Fed. R. 461, 465; affirmed without passing on this point, 112 U. S. 600. 18 U. S. Bank v. Lyon County, 48 Fed. R. 632. 19 Edison Electric Light Co. v. U. S. El. Light Co., 52 Fed. R. 300, 313; s. c. (C. C. A.), per Lacombe, J. See Marion Phosphate Co. v. Perry, 74 Fed. R. 425. § 7. 1 Neves v. Scott, 13 How. 268, 271; Gaines v. Fuentes, 92 U. S. 10, 20; Ellis v. Davis, 109 U. S. 485; Lorman v. Clarke, 2 McLean, 568, 577; Nichols v. Eaton, 91 U. S. 716, 729; Fisher v. Shropshire, 147 U. S. 133. or statute 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 a will, or a will itself, for fraud; authorizing a person in possession of land, and unmolested, or even one out of possession of vacant land, to sustain a bill to determine and quiet the title to the same; but not a State statute authorizing one out of possession of land to obtain possession of the same when occupied by another through a suit triable without a jury; imposing on stockholders individual liability to the creditors of their corporations; making an assessment for opening streets a lien upon abutting lands, which can be foreclosed by the city or its assignee; authorizing the appointment of a receiver under certain conditions, which in the Federal courts must then also be performed; 10 authorizing a bill for a partition of an equitable claim to land the legal title to which is in the United States; "authorizing an injunction to be granted in a new class of cases,12 where there is no dispute as to the legal title of the complainant, as in a taxpayer's suit; 13 empowering a guardian. with the permission of the State court to mortgage his ward's 2 Clark v. Smith, 13 Pet. 195; Fitch v. Creighton, 24 How. (U. S.) 159; Brine v. Insurance Co., 96 U. S. 627; Mills v. Scott, 99 U. S. 25; Van Norden v. Morton, 99 U. S. 378; Cummings v. National Bank, 101 U. S. 153, 157; Holland v. Challen, 110 U. S. 15; Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405. Brine v. Insurance Co., 96 U. S. 627; Orvis v. Powell, 98 U. S. 176, 178; Connecticut Mut. L. Ins. Co. v. Cushman, 108 U. S. 51. 4 Broderick's Will, 21 Wall. 503, 519, 520. 5 Clark v. Smith, 13 Pet. 195. Holland v. Challen, 110 U. S. 15; Southern Pac. R. Co. v. Stanley, 49 Fed. R. 263. 7 Whitehead v. Shattuck, 138 U. S. 8 Borland v. Haven, 37 Fed. R. 394. 9 Fitch v. Creighton, 24 How. (U.S.) 159. 10 Flash v. Wilkerson, 22 Fed. R. 689; Fechheimer v. Baum, 37 Fed. R. 167; T. & W. M. Co. v. Shatto, 34 Fed. R. 380. But see Scott v. Neely, 140 U. S. 106. 11 Aspen Mining & Smelting Co. v. Rucker, 28 Fed. R. 220. 12 Cummings v. National Bank, 101 U. S. 153, 157; Lanier v. Alison, 31 Fed. R. 100; Grether v. Wright (C. C. A.), 75 Fed. R. 742; Weidenfeld v. Sugar Run R. Co., 48 Fed. R. 615, 619. But see Davidson v. Calkins, 92 Fed. R. 230; Lehigh Valley C. Co. v. Hamblen, 23 Fed. R. 225. 13 Seccomb v. Wurster, 83 Fed. R. 856. 15 estate, but not clauses providing that such a mortgage can only be foreclosed in the court which authorized its execution;14 creating and providing for the enforcement of a mechanic's lien; authorizing a court of equity after the destruction of the public records to enter a decree establishing and confirming the title of a landowner; 16 authorizing the assignee of an insolvent to apply for the dissolution of levies of attachments and executions against his property;" and a vendor's lien recognized by the State common law.18 It has been held that the Federal courts in Ohio should follow the State statute authorizing a decree of specific performance against a non-resident not served within the State, provided that jurisdiction is obtained under the Revised Statutes of the United States; 19 that the summary method of foreclosing a mortgage under the Louisiana Code belongs on the equity side of the court; 20 and that the Louisiana statute authorizing a summary proceeding to set aside an incorrect assessment for taxation will be enforced pursuant to the chancery practice on the equity side of the court, and not in accordance with the State practice by a petition upon the common-law side." A State statute cannot give a Federal court jurisdiction in equity of a case in which there is an adequate remedy at common law. Thus, a State statute cannot authorize a bill in equity in a Federal court to obtain possession of land held adversely to complainant; but 14 Davis v. James, 2 Fed. R. 618. 15 Idaho & O. L. L. Co. v. Bradbury, 132 U. S. 509; Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 579. But see as to attorney's lien, Sherry v. O. S. N. Co., 72 Fed. R. 565. 16 Gormley v. Clark, 134 U. S. 338. 17 Brochon v. Wilson, 91 Fed. R. 617. 18 Fisher v. Shropshire, 147 U. S. 133; Chilton v. Braiden's Adm'x, 2 Black, 458. 19 Single v. Scott Paper Mfg. Co., 55 Fed. R. 553, 557. The United States Circuit Court for the District of Connecticut followed the State statute, providing that "Courts of equity may pass the title to real estate by decree without any act of the respondent, . . and such decree when recorded shall be as effectual as the 22 23 deed of respondent." A. & W. Sprague Mfg. Co. v. Hoyt, 29 Fed. R. 421. See infra, § 349. 20 Fleitas v. Richardson, 147 U. S 538. 22 Whitehead v. Shattuck, 138 U. S 26 25 where neither party is in possession, the State statute might be followed." A Federal court will not follow a State statute which authorizes a creditor's bill against an individual or a corporation, even against a stockholder where no accounting is required," by a complainant who has not obtained a judgment establishing his claim; but a State statute was followed which gave such a remedy to the creditor of an insolvent decedent.28 Whether a mortgagee must sue at law or in equity to recover from one who by a covenant with the mortgagor has assumed the mortgage depends upon the State law of the forum, not on the law of the place where the deed and mortgage were made and the land is situated.29 When a State statute creating a new liability provides an exclusive remedy, such liability can be enforced in the Federal courts in no other manner.30 When a State statute creates a new liability and provides that it can only be enforced in a specified State tribunal, the Federal courts will enforce the liability, and reject the clause respecting the exclusive jurisdiction.31 § 8. State statutes of limitation.- Federal courts of equity usually follow by analogy State statutes of limitation,' especially in foreclosure suits and suits against executors and administrators; but, at least when their jurisdiction is not concurrent with courts of law, they do not consider themselves 24 Holland v. Challen, 110 U. S. 15; Harding v. Guice (C. C. A.), 80 Fed. R. 162. 25 Scott v. Neely, 140 U. S. 106; Cates v. Allen, 149 U. S. 451. The Federal court in that State refused to follow a statute of Virginia which gave the complainant in a creditor's bill a priority over other creditors of the same class. Talley v. Curtain (C. C. A.), 54 Fed. R. 43. 26 Morrow Shoe Mfg. Co. v. New Eng. Shoe Co., 60 Fed. R. 341; Atlantic & F. R. Co. v. Western Ry. Co. (C. C. A.), 50 Fed. R. 790. 27 Alderson v. Dole (C. C. A.), 74 Fed. R. 29. 28 Lilienthal v. Drucklieb (C. C. A.), 92 Fed. R. 753. 29 Willard v. Wood, 135 U. S. 309. 30 Fourth Nat. Bank v. Francklyn, 120 U. S. 747; Flour City Nat. Bank v. Wechselberg, 45 Fed. R. 547. 31 Davis v. James, 2 Fed. R. 618. § 8. Wagner v. Baird, 7 How. 234, 258; Broderick's Will, 21 Wall. 503; Godden v. Kimmell, 99 U. S. 201; Meath v. Phillips County, 108 U. S. 553; Kirby v. L. S. & M. S. R. Co., 120 U. S. 130; Pratt v. Northam, 5 Mason, 95, 112, per Story, J.; Norris v. Haggin, 136 U. S. 386. 2 Cleveland Ins. Co. v. Reed, 1 Biss. 180; Reeves v. Vinacke, 1 McCrary, 213, 217, per Nelson and Dillon, JJ. 3 Pulliam v. Pulliam, 10 Fed. R. 53; Broderick's Will, 21 Wall, 503. 4 Wagner v. Baird, 7 How. 234, 258; Godden v. Kimmell, 99 U. S. 201. |