tice of the court no injunction could possibly have been ob tained before the expiration of the patent; 58 and also, perhaps, even when the bill has been filed after the expiration of the patent, if the infringing articles were made during its life.59 Since imported goods in the custody of the collector cannot be replevied," a bill in equity may be maintained to recover their possession.61 The Revised Statutes provide that "Whenever a patent on application is refused, either by the Commissioner of Patents or by the Supreme Court of the District of Columbia upon appeal from the Commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent on the applicant filing in the patent-office a copy of the adjudication, and otherwise complying with the requirements of law. In all cases, where there is no opposing party, a copy of the bill shall be served on the Commissioner; and all the expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not.” 62 It has been held that the bill cannot be brought until the determination of an ap Westinghouse Air Brake Co. v. Carpenter, 32 Fed. R. 484, per Brewer, J.; Kittle v. De Graaf, 30 Fed. R. 689, per Coxe, J.; Adams v. Bridgewater Iron Co., 26 Fed. R. 324; Brooks v. Miller, 28 Fed. R. 615, 617; Russell v. Kern (C. C. A.), 69 Fed. R. 94. 58 Clark v. Wooster, 119 U. S. 322, 324; American Cable Ry. Co. v. Citizens' Ry. Co., 44 Fed. R. 484; Keyes v. Eureka Con. Mfg. Co., 45 Fed. R. 199; American Cable Ry. Co. v. Chicago City Ry. Co., 41 Fed. R. 522; Russell v. Kern (C. C. A.), 64 Fed. R. 581; s. c., 69 Fed. R. 94; McDonald v. Miller, 84 Fed. R. 344. 59 N. Y. Belting & Packing Co. v. Magowan, 27 Fed. R. 111; citing Root v. Railway Co., 105 U. S. 189; 60 U. S. R. S., § 934. 61 Pollard v. Reardon, 65 Fed. R. 848. 62 U. S. R. S., § 4915; 27 St. at L. 434; Runstetler v. Atkinson, 23 Off. Gaz. 1025; Greeley v. Commissioner, 6 Fisher, 675; s. C., 1 Holmes, 284; Ex parte Arkell, 15 Blatchf. 437; Butterworth v. Hill, 114 U. S. 128; Hill v. Wooster, 132 U. S. 693. 66 peal to the District Court of Appeals; 63 and that the statute authorizing the appeal to the District Court of Appeals is constitutional. The Commissioner of Patents is not a necessary party when there is a party to oppose the bill," but when the patent has been issued and assigned, the assignee is a necessary party. It has been held that the statute does not authorize an injunction against the issue of a patent by the Commissioner to some one other than the plaintiff.67 A bill for an account of general average and decree of contribution has been sustained. It has been held that there is jurisdiction in equity to open a closed account, although there is a remedy at law, in a case where, were the accounts still open, equity might have entertained a bill for an accounting." "It is possible that one who holds land under grant from the United States, who has done everything in his power to entitle him to a patent (which he cannot compel the United States to issue to him), and is deemed the legal owner, so far as to render the land taxable to him by the State in which it lies, may be considered as having sufficient title to sustain a bill in equity to quiet his right and possession." 70 § 12. Illustrations of cases where the Federal courts have refused to assume equitable jurisdiction.- Equity will not entertain a bill to restrain the President of the United States from carrying into effect an unconstitutional act of Congress, in the discharge of duties "purely executive and political." 1 Nor a bill to protect rights which are purely political, even though rights of property may be thereby incidentally affected.2 Nor a bill to enforce an "abstract right" which the complainant asserts, and which he may never practically exercise; as, 63 Smith v. Muller, 75 Fed. R. 612. 64 U. S. v. Duell, 172 U. S. 576. 65 Butler v. Shaw, 21 Fed. R. 321; Graham v. Teter, 25 Fed. R. 555. 66 Graham v. Teter, 25 Fed. R. 555. See Illingworth v. Atha, 42 Fed. R. 141, 145. 67 Illingworth v. Atha, 42 Fed. R. 141, 144. 68 Sturgess v. Cary, 2 Curt. 59. 69 Bischoffsheim v. Baltzer, 20 Fed. R. 890. U. S. 552, 556, citing Carroll v. Safford, 3 How. 441, 463; Van Wyck v. Knevals, 106 U. S. 360, 370; Van Brocklin v. Tennessee, 117 U. S. 151, 169. § 12. Mississippi v. Johnson, 4 Wall. 475. 2 Georgia v. Stanton, 6 Wall. 50. Cf. Georgia v. Grant, 6 Wall. 241; Clough v. Curtis, 134 U. S. 361; Smith V. Board County Com'rs Skogit County, 45 Fed. R. 725; Mills v. Green, 70 Gray, J., in Frost v. Spitley, 121 69 Fed. R. 852. for example, the right to remove an obstruction from a navigable river, when he does not allege that he is about to navigate the same. Nor a bill by the United States to enjoin a corporation from opening an exhibition upon Sunday, where Congress had made an appropriation toward the expense of the enterprise upon the express condition that it should be closed on the first day of each week. Nor a bill by a coupon-holder, who does not allege that he is a taxpayer, to enjoin a State officer from refusing to receive his coupons in payment of taxes, as is required by a contract between the coupon-holder and the State. Nor a bill to compel municipal, county or State officers to levy a tax; or to issue bonds, even in the case of a contract; since the remedy, when it exists at all, is by mandamus. Nor a bill for the appointment of a receiver to levy taxes, or to collect taxes previously levied. Nor a bill to enjoin an insolvent municipality from expending its funds for other municipal purposes. Nor a bill to enjoin the collection of an internal revenue tax imposed by the United States and illegally assessed.10 Nor a bill to restrain the collection of a State tax, no matter how illegally imposed," unless its enforcement would lead to a multiplicity of suits," or produce 3 Spooner v. McConnell, 1 McLean, 337. 4 World's Columbian Exposition v. U. S., 56 Fed. R. 654. 5 Marye v. Parsons, 114 U. S. 325. See Parsons v. Slaughter, 63 Fed. R. 876. 10 U. S. R. S., § 3224; Snyder v. Marks, 109 U. S. 189. But see Pollock v. Farmers' L & T. Co., 157 U. S. 429; supra, § 11. 11 Hannewinkle v. Georgetown, 15 Wall. 548; Dows v. Chicago, 11 Wall. 108; State Railroad Tax Cases, 92 6 Walkley v. Muscatine, 6 Wall. U. S. 575; Milwaukee v. Koeffler, 116 481. U. S. 219; Pittsburg, etc. Ry. Co. v. 7Smith v. Bourbon County, 127 Board of Public Works, 172 U. S. 32. U. S. 105. 8 Rees v. Watertown, 19 Wall. 107; Heine v. Levee Com'rs, 19 Wall. 655; Meriwether v. Garrett, 102 U. S. 472. Thompson v. Allen County, 115 U. S. 550. See supra, § 11, note 32; Safe Deposit & T. Co. v. City of Anniston, 96 Fed. R. 661, 663, per Shelby, J.: "If the remedy at law is adequate in theory it deprives equity of jurisdic tion, although practically it may be inadequate to secure the collection of the claim sued on." 12 Union Pac. Ry. Co. v. Cheyenne, 113 U. S. 516; Dundee Mtge. T. Invt. Co. v. School District, 19 Fed. R. 359; Cummings v. National Bank, 101 U. S. 153, 156; Taylor v. Louisville & N. R. Co. (C. C. A.), 88 Fed. R. 350, 357; Sanford v. Poe (C. C. A.), 69 Fed. R. 546. "It is real and not imaginary suits, it is probable and not possible danger of a multiplicity of suits, that will warrant the assumption of jurisdi tion on that ground. While it is true, as the plaintiff contends, that 14 irreparable injury,13 or throw a cloud upon the title of real estate, or possibly when its assessment was made by a fraud of which equity would take cognizance, or when there is at law no means of recovering its amount.15 Nor a bill to compel a railway company to maintain its permanent terminus at a certain place. Nor, except perhaps under special circumstances, to compel a railroad company to compel specific performance by either party to a contract for the construction of a railroad." Nor solely for purposes that could be accomplished by an action in ejectment.18 Nor to quiet the title to real estate when the complainant's rights are purely equitable; 19 nor, in the absence of a State statute authorizing such a 16 the State might bring a separate suit for each day's penalty" for failure to pay a tax, "the court would hardly be justified in acting on the assumption that it would do so. The State is not to be looked upon in the light of a barrator, and the court will not impute to it, or to its officers acting in its name, a litigious or vindictive spirit, or a purpose needlessly to vex and harass the citizen with lawsuits. Whatever the rule may be in the case of natural persons, the court will presume that a State is incapable of such a vulgar passion, and, until the fact is shown to be otherwise, will act on the assumption that a State will not bring any more suits than are fairly necessary to establish and maintain its rights." Pacific Exp. Co. v. Seibert, 44 Fed. R. 310, 315, per Caldwell, J. 13 See Taylor v. Louisville & N. R. Co. (C. C. A.), 82 Fed. R. 350. 14 Sanford v. Gregg, 58 Fed. R. 620; Taylor v. Louisville & N. R. Co. (C. C. A.), 82 Fed. R. 350, 358. 15 First Nat. Bank v. Douglass County, 3 Dill. 298; Union Pac. R. Co. v. McShane, 3 Dill. 303, 312. In Shelton v. Platt, 139 U. S. 591, 596, 597, where the only jurisdictional averments were "that the property of the United States Express Com pany in Tennessee is employed in interstate commerce in the said express business, and necessary to the conduct of it; that if seized by the said sheriff it will greatly embarrass the company in the conduct of such business, and subject it to heavy loss and damage, and the public served by it to great loss and inconvenience;" and "that your orator and the United States Express Company are without adequate remedy at law in the premises;" it was held that no injunction should issue." See Allen v. Pullman's Palace Car Co., 139 U. S. 658. See also Keithsburg Bridge Co. v. McKay, 42 Fed. R. 427; Pacific Exp. Co. v. Seibert, 44 Fed. R. 310; Hoey v. Coleman, 46 Fed. R. 221, 223. 16 Texas & Pac. Ry. Co. v. Marshall, 136 U. S. 393. 17 Strang v. Richmond, P. & C. R. Co., 93 Fed. R. 71. See also Fallon v. Railroad Co., 1 Dill. 121; Ross v. Union Pac. Ry. Co., 1 Woolw. 26. 18 Hipp v. Babin, 19 How. 271; Lewis v. Cocks, 23 Wall. 466; Ellis v. Davis, 109 U. S. 485; Killian v. Ebbinghaus, 110 U. S. 568; U. S. v. Wilson, 118 U. S. 86; Speigle v. Meredith, 4 Biss. 120. 19 Frost v. Spitley, 121 U. S. 552. 1 1 21 suit, when he is not in possession of the land.20 Nor a bill for a partition filed by a tenant in common out of possession; " or where the complainant's title is denied; 2 except when the complainant's title is not recognized at common law. 23 Nor, usually, to restrain the seizure or to compel the return of personal property, unless its loss by the owner would result in irreparable injury by the destruction of his business and commercial credit,25 or by rendering it impossible for him to manage his farm,26 or on account of its unique value,27 or if it be held in trust.28 That the value of the property is so great that the complainant is unable to give the bond required in an action of replevin affords no ground for the interference of equity.29 Nor can a bill be sustained which seeks to recover damages for a conversion," or for a fraudulent misrepresentation, even when sought as an alternative to a prayer for a rescission, or for a fraudulent conspiracy.33 Nor to collect a note from its maker or an indorsee.35 Nor to collect the amount of an insurance policy.36 Nor a bill filed by an insurance company, after a loss has occurred, to obtain the cancellation of a policy procured by fraud." Nor, except in a very 31 32 20 U. S. v. Wilson, 118 U. S. 86; Frost v. Spitley, 121 U. S. 552; supra, $7. 21 Frey v. Willoughby, 63 Fed. R. 865. 22 American Ass'n v. Eastern Ky. Land Co., 68 Fed. R. 721. But see Fuller v. Montague, 59 Fed. R. 212. 23 Hopkins v Grimshaw, 165 U. S. 342, 358. 24 Knox v. Smith, 4 How. 298; Van Norden v. Morton, 99 U. S. 378. But see Crane v. McCoy, 1 Bond, 422. 25 Watson v. Sutherland, 5 Wall. 74; North v. Peters, 138 U. S. 271. 26 Breeden v. Lee, 2 Hughes, 484. 27 Pusey v. Pusey, 1 Vern. 273; Duke of Somerset v. Cookson, 3 P. Wms. 389. But see Lawrence v. Times Printing Co., 90 Fed. R. 24. 28 New Orleans v. Morris, 105 U. S. 600; Reynes v. Dumont, 130 U. S. 354. 29 In re Oregon Iron Works, 4 Saw. 169, 170; s. c., 17 N. B. R. 404. 30 Dumont v. Fry, 12 Fed. R. 21. 31 Russell v. Clark, 7 Cranch, 69; White v. Boyce, 21 Fed. R. 228. “In cases of fraud and mistake, as under any other head of chancery jurisdiction, a court of the United States will not sustain a bill in equity to obtain only a decree for the payment of money by way of damages, when the like amount can be recovered in an action sounding in tort or for money had and received." Per Gray, J., in Buzard v. Houston, 119 U. S. 347, 352. 32 Alger v. Anderson, 92 Fed. R. 696. 33 Ambler v. Choteau, 107 U. S. 586. 34 Dowell v. Mitchell, 105 U. S. 430. 35 Shields v. Barrow, 17 How. 130. 36 Graves v. Boston Marine Ins. Co., 2 Cranch, 419. 37 Home Ins. Co. v. Stanchfield, 1 Dill. 424; Insurance Co. v. Bailey, 13 Wall 616. |