This section is declaratory of the law as it existed at the time when the Constitution was adopted. It is measured by the subjects over which courts of equity had jurisdiction at that time, and, as state courts can neither enlarge nor diminish the jurisdiction of the federal courts, it is not affected by the fact that under subsequent legislation a statutory remedy is given which is as good as the equitable remedy. Such legislation does not narrow the jurisdiction of the federal courts in equity.3

Even in the federal courts the single fact that there is a remedy at law is not sufficient to oust the courts of their equitable jurisdiction. It must be as full, adequate, and complete as the equitable remedy.*

But while the state statutes cannot enlarge or restrict the equitable jurisdiction of the federal courts by making a matter a case of equity cognizance which is not so under the practice of the English High Court of Chancery, the federal courts can avail of any new remedy in the nature of an equitable remedy given for the enforcement of a right which is equitable in its nature.5

An equity court has no jurisdiction, however, to give a direct decree against the obligors on a bond given for release of property or other purposes incidental to a chancery suit. It leaves the parties to their remedy at law."

3 Mississippi Mills v. Cohn, 150 U. S. 202, 14 Sup. Ct. 75, 37 L. Ed. 1052; ante, p. 224. See "Courts," Dec. Dig. (Key-No.) § 259; Cent. Dig. 795, 796.

Arrowsmith v. Gleason, 129 U. S. 86, 9 Sup. Ct. 237, 32 L. Ed. 630; Empire Circuit Co. v. Sullivan (C. C.) 169 Fed. 1009; Rumbarger v. Yokum (C. C.) 174 Fed. 55. See "Courts," Dec. Dig. (KeyNo.) § 262; Cent. Dig. § 797.

Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52; Farr v. Hobe-Peters Land Co., 188 Fed. 10, 110 C. C. A. 160. See "Courts," Dec. Dig. (Key-No.) § 335; Cent. Dig. § 907.

Bein v. Heath, 12 How. 168, 13 L. Ed. 939; Phillips v. Gilbert, 101 U. S. 721, 25 L. Ed. 833. See "Courts," Dec. Dig. (Key-No.) § 335; Cent. Dig. § 902.

THE EQUITY PROCEDURE IN THE FEDERAL
COURTS-HOW REGULATED

153. The equity procedure of the federal courts is independent of that in the state courts. The federal courts, in this branch of their jurisdiction, have their own rules and practice. These rules are in accordance with the practice in equity that prevailed at adoption of the federal Constitution as modified by a code of rules laid down by the Supreme Court of the United States under authority of law, together with certain rules of the lower federal courts regulating details of their own procedure.

The rules of procedure are prescribed by the Supreme Court under authority of sections 913 and 917 of the Revised Statutes," which provide as follows:

"The forms of mesne process and the forms and modes of proceeding in suits of equity and of admiralty and maritime jurisdiction in the circuit and district courts shall be according to the principles, rules, and usages which belong to courts of equity and of admiralty, respectively, except when it is otherwise provided by statute or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition by the said courts, respectively, and to regulation by the Supreme Court, by rules prescribed, from time to time, to any circuit or district court, not inconsistent with the laws of the United States."

"The Supreme Court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of writs and other pro

7 U. S. Comp. St. 1901, pp. 683, 684.

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cess, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining discovery, of proceeding to obtain relief, of drawing up, entering, and enrolling decrees, and of proceeding before trustees appointed by the court, and generally to regulate the whole practice, to be used, in suits in equity or admiralty, by the circuit and district courts."

Under authority conferred by these statutes the Supreme Court at its February term, 1822, prescribed thirtythree rules to regulate the equity practice of the federal courts of first jurisdiction. Subsequent thereto, at the January term, 1842, these rules were much enlarged, and were increased in number to ninety-two."

Since that time three others have been added. One is in reference to giving a personal decree against the mortgagor under certain circumstances in a foreclosure suit, which was promulgated at the December term, 1863.10 Another one gave the judge who took part in a decision granting or dissolving an injunction a certain discretion as to suspending or modifying an injunction during the pendency of an appeal. It was promulgated at the October term, 1878.11 And the last was intended to prevent collusive suits by stockholders for causes of action which should be asserted in the first instance by the directors or managing officers of a corporation. It was promulgated at the October term, 1881.12

These rules remained in force until November 4, 1912, when the Supreme Court promulgated a new draft which went into effect February 1, 1913. This draft changed the old ones so radically as practically to constitute a new system and render obsolete a great mass of decisions construing the old ones.13

87 Wheat. xvii.

1 How. xli.

101 Wall. V.

11 97 U. S. vii.

12 104 U. S. ix.

18 See 33 Sup. Ct. xx.

The right of Congress to authorize the adoption of these rules by the courts has been upheld.11

The courts, however, can only regulate procedure under this power; they cannot, under the guise of a rule, affect the jurisdiction of the courts.15

Under old rule 90 the practice of the federal courts in cases not covered by the rules is "the present practice of the High Court of Chancery in England." Although, as has been seen above, the question of jurisdiction in equity depends upon the English jurisdiction of the equity courts, as it was at the time of the Constitution, or the enactment of the judiciary act immediately after the adoption of the Constitution, yet, as regards questions of practice, this rule meant to adopt the practice of the High Court of Chancery as it existed at the time the rules were adopted. That was in 1842.16

In Thomson v. Wooster 17 the Supreme Court calls attention to the fact that the best exponent of the English practice is the edition of Daniell's Chancery Practice issued in the year 1837. It also recommends Smith's Chancery Practice as valuable for the same purpose. It may be added that the first edition of Story's Equity Pleading was published about this same time. A companion work to this is Curtis' Equity Precedents.

In the recent revision, old rule 90, adopting the practice of the English High Court of Chancery as of 1842, is omitted. This omission, however, cannot change the fact

14 Wayman v. Southard, 10 Wheat. 1, 42, 6 L. Ed. 253. See "Courts," Dec. Dig. (Key-No.) §§ 258, 259; Cent. Dig. §§ 793, 795.

15 The St. Lawrence, 1 Black, 522, 17 L. Ed. 180; In re Phenix Ins. Co., 118 U. S. 610, 7 Sup. Ct. 25, 30 L. Ed. 274. See "Courts," Dec. Dig. (Key-No.) §§ 78-80, 332; Cent. Dig. §§ 274-292, 911.

16 THOMSON v. WOOSTER, 114 U. S. 104, 5 Sup. Ct. 788, 29 L. Ed. 105; Badger v. Badger, Fed. Cas. No. 717. See "Courts," Dec. Dig. (Key-No.) § 335; Cent. Dig. §§ 902-9072.

17 THOMSON v. WOOSTER, 114 U. S. 104, 5 Sup. Ct. 788, 29 L. Ed. 105. See "Courts," Dec. Dig. (Key-No.) § 335; Cent. Dig. §§ 902-9072.

that section 913, just quoted, requires the practice to be "according to the principles, rules, and usages which belong to courts of equity," except as changed by statute or rule. As we get these "principles, rules, and usages" from the mother country, we must still look to the standard authorities in matters not controlled by rule.

Under section 918 of the Revised Statutes,18 the district courts can prescribe rules of practice not inconsistent with the rules of the Supreme Court, but by rule 79 a majority of the circuit judges for the circuit must concur in their adoption.

SAME PLEADING-GENERAL REQUISITES OF THE BILL

154. The ancient form of bills in equity has been much simplified in the federal equity rules by authorizing the omission of formal averments and abbreviating the method of stating the cause of action. But it must show

(a) The jurisdiction of the court as a federal court. (b) The jurisdiction of the court as an equity court. The bill must be signed by counsel as a pledge of good faith.

The first step in the institution of an equity suit in the federal courts is filing the bill.

Its general form is the subject of the twenty-fifth rule. Any bill in equity in the federal courts must, independent of its special character, embody two essentials: First, it must show the jurisdiction of the court as a federal court; and second, it must show the jurisdiction of the court as an equity court.

18 U. S. Comp. St. 1901, p. 685.