may enforce a new right of action given by statute upon their common-law side." In such a suit, whether at law or in equity, the State statute giving the right controls the measure of recovery; the suit, although removed to the United States Circuit Court, remains in substance a proceeding under the State statute," with the original rights of the parties unchanged."4 If a new right created by a State statute is essentially an equitable one it will be so treated in the United States Cir Grether v. Wright, 43 U. S. App. | was done without objection in 770, 23 C. C. A. 498, 75 Fed. 742. A right given by a statute of a State to a party out of possession of real estate, to bring a suit in equity, against a party in possession thereof, to quiet the plaintiff's title thereto, although enforceable in the courts of such State, cannot be enforced in a Circuit Court of the United States, the remedy at law by ejectment having been adjudged to be sufficient. Missouri, K. & T. Trust Co. v. Krumseig, 172 U. S. 351, 19 Sup. Ct. 179, 43 L. 474, affirming s. c., Whitehead v. Shattuck, 138 U. S. 40 U. S. App. 620, 23 C. C. A. 1, 77 146, 11 Sup. Ct. 276, 34 L. 873; Whitehead v. Entwhistle, 27 Fed. 778; Gombert v. Lyon, 80 Fed. 305; Morrison v. Marker, 93 Fed. 692; California Oil & G. Co. v. Miller, 96 Fed. 12. Where a State statute authorizes a suit at law to be brought, by a party out of possession of real estate, against a party in possession thereof, who claims title thereto, or an interest therein, adverse to plaintiff, to determine and quiet the question of title, a trial by jury being a matter of right, Trittipo v. Morgan, 99 Ind. 269, a Circuit Court of the United States, as a Court of law, may, in the opinion of the author, entertain jurisdiction of such a suit. This Fed. 32; Dickson v. Lehnen, 37 Fed. 319. A defendant, against whom a cause of action is asserted in a State court under a State statute, cannot nullify the statute by removing the suit to a Circuit Court of the United States. While the statutes of the States cannot modify the practice of the Federal equity Courts, these statutes can create rights in conflict with the maxims of the equity courts, and these rights are enforceable in removed cases. The Federal equity Courts must administer the law of the State as it exists in the State. Cowley v. Northern Pac. R. Co., supra; Missouri, K. & T. Trust Co. v. Krumseig, supra. cuit Courts, though it be enforceable by a legal remedy in the State courts.5 A United States Circuit Court, as a Court of law, cannot enforce an equitable right created by a State statute and enforceable in a court of law of the State; but resort must be had to equity.6 And conversely, if a State statute creates a legal right, but provides an equitable remedy in the State court, the right may be enforced by an appropriate legal remedy in the United States Circuit Court; but in the latter Court, a legal right cannot be enforced in equity.7 § 56. There are some hybrid cases-neither at law nor in equity, but a cross between the two-that can be brought in State courts under the statutes of some States, but which can neither be brought in a United States Circuit Court nor removed thereto from a State court.-The statute requires a suit, in order to be removable, to be one either "at law" or "in equity."1 When a suit is neither at law nor in equity separately, but is a mixture of law and equity so blended as to be incapable of separation, the United States Supreme Court has held that a United States Circuit Court can acquire no jurisdiction thereof either by original process Alexander v. Mortgage Co., 47 Fed. 131. 5" A State, by prescribing an action at law to enforce even statutory rights, cannot oust a Federal Court, sitting in equity, of its jurisdiction to enforce such rights, provided they are of an equitable nature." Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 13 Sup. Ct. 936, 37 L. 853. To the same effect are De La Vergne Ref. Mach. Co. v. Montgomery Brewing Co., 46 Fed. 829; 7 Alderson v. Dole, 33 U. S. App. 460, 20 C. C. A. 280, 74 Fed. 29. 2 See, further, as to the separation of legal and equitable rights and remedies in the United States Circuit Courts, post § 208. $ 56. 1 Ante § 7. 2 Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. 358; Swan Land & Cattle Co. v. Frank, Hooven, O. & R. Co. v. Feather- 148 U. S. 603, 13 Sup. Ct. 691, 37 L. stone, 99 Fed. 180. 6 Lindsay v. First Nat. Bank, 156 U. S. 485, 15 Sup. Ct. 472, 39 L. 505; Thomas v. Am. Freehold Land & Mtg. Co., 47 Fed. 550, 12 L. R. A. 577; Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 14 Sup. Ct. 127, 37 L. 1113. or by removal,3 and the subordinate Federal Courts have followed these decisions.4 If a United States Circuit Court can take jurisdiction of a suit, either as one at law or as one in equity, it will do so. The cases of which jurisdiction will not be assumed are strictly limited to those in which there can be no separation of law and equity.5 § 57. "The Courts of the United States have no probate jurisdiction."-The Courts of the United States have, as a general rule, no original probate jurisdiction." A United 8 Cates v. Allen, 149 U. S. 451, 13 | 'by the essential character of the Sup. Ct. 883, 37 L. 804. * Atlanta & F. R. Co. v. Western R. Co., 2 U. S. App. 227, 1 C. C. A. 676, 50 Fed. 790; Morrow Shoe Manuf'g Co. v. New England Shoe Co., 18 U. S. App. 256, 6 C. C. A. 508, 57 Fed. 685, 24 L. R. A. 417; s. c. (on rehearing), 18 U. S. App. 616, 8 C. C. A. 652, 60 Fed. 341, 24 L. R. A. 417; First Nat. Bank v. Prager, 63 Hall v. Gambrill, 63 U. S. App. Prior to the decisions of the Supreme Court in the cases cited in notes 2 and 3, it was held by several Circuit Courts of the United States that such Courts had jurisdiction of an equitable action, brought pursuant to a State statute, to recover judgment for the amount of a debt and at the same time set aside a fraudulent conveyance. A carefully prepared opinion reaching this conclusion is to be found in Buford v. Holley, 28 Fed. 680. 5"Whether the jurisdiction of this Court is upon its law side or its equity side will be determined! case,' but the right of removal is not affected by any such question. That right exists if, upon either side, the requisite jurisdiction exists. Where a cause brought here by removal cannot be entertained upon the one side, it must be assigned to the other; but it is not to be remitted to the State court if, upon either side, the Federal Court is competent to retain and decide it." Wilson v. Smith, 66 Fed. 81, 83. This question was carefully reviewed by the Circuit Court of Appeals of the Eighth Circuit in Darragh v. H. Wetter Manuf'g Co., 49 U. S. App. 1, 23 C. C. A. 609, 78 Fed. 7; and that Court refused to extend the rule of the cases cited in notes 2, 3 and 4, to another case not strictly within such rule, the Court strongly intimating that those decisions are materially restricted by Cowley v. Northern Pac. R. Co., 159 U. S. 569, 16 Sup. Ct. 127, 40 L. 263. $ 57. 1 Fouvergne v. New Orleans, 18 How. 470, 15 L. 399. 2 Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. 867, reversing Shields v. McAuley, 37 Fed. 302; Ellis v. Davis, 109 U. S. 485, 3 cuit Courts, though it be enforceable by a legal remedy in the State courts.5 A United States Circuit Court, as a Court of law, cannot enforce an equitable right created by a State statute and enforceable in a court of law of the State; but resort must be had to equity. And conversely, if a State statute creates a legal right, but provides an equitable remedy in the State court, the right may be enforced by an appropriate legal remedy in the United States Circuit Court; but in the latter Court, a legal right cannot be enforced in equity. § 56. There are some hybrid cases-neither at law nor in equity, but a cross between the two-that can be brought in State courts under the statutes of some States, but which can neither be brought in a United States Circuit Court nor removed thereto from a State court.—The statute requires a suit, in order to be removable, to be one either "at law" or "in equity." When a suit is neither at law nor in equity separately, but is a mixture of law and equity so blended as to be incapable of separation, the United States Supreme Court has held that a United States Circuit Court can acquire no jurisdiction thereof either by original process 2 1 Alexander v. Mortgage Co., 47 Fed. 131. 7 Alderson v. Dole, 33 U. S. App. 460, 20 C. C. A. 280, 74 Fed. 29. See, further, as to the separation of legal and equitable rights and remedies in the United States Circuit Courts, post § 208. § 56. 1 Ante § 7. 2 Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. 358; Swan Land & Cattle Co. v. Frank, Hooven, O. & R. Co. v. Feather-148 U. S. 603, 13 Sup. Ct. 691, 37 L. stone, 99 Fed. 180. 6 Lindsay v. First Nat. Bank, 156 U. S. 485, 15 Sup. Ct. 472, 39 L. 505; Thomas v. Am. Freehold Land & Mtg. Co., 47 Fed. 550, 12 L. R. A. 577; Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 14 Sup. Ct. 127, 37 L. 1113. or by removal, and the subordinate Federal Courts have followed these decisions.1 If a United States Circuit Court can take jurisdiction of a suit, either as one at law or as one in equity, it will do so. The cases of which jurisdiction will not be assumed are strictly limited to those in which there can be no separation of law and equity.5 § 57. "The Courts of the United States have no probate jurisdiction." —The Courts of the United States have, as a general rule, no original probate jurisdiction.2 A United 8 Cates v. Allen, 149 U. S. 451, 13 | 'by the essential character of the Sup. Ct. 883, 37 L. 804. 4 Atlanta & F. R. Co. v. Western R. Co., 2 U. S. App. 227, 1 C. C. A. 676, 50 Fed. 790; Morrow Shoe Manuf'g Co. v. New England Shoe Co., 18 U. S. App. 256, 6 C. C. A. 508, 57 Fed. 685, 24 L. R. A. 417; s. c. (on rehearing), 18 U. S. App. 616, 8 C. C. A. 652, 60 Fed. 341, 24 L. R. A. 417; First Nat. Bank v. Prager, 63 Hall v. Gambrill, 63 U. S. App. case,' but the right of removal is not affected by any such question. That right exists if, upon either side, the requisite jurisdiction exists. Where a cause brought here by removal cannot be entertained upon the one side, it must be assigned to the other; but it is not to be remitted to the State court if, upon either side, the Federal Court is competent to retain and decide it." Wilson v. Smith, 66 Fed. 81, 83. This question was carefully reviewed by the Circuit Court of Appeals of the Eighth Circuit in Darragh v. H. Wetter Manuf'g Co., 49 U. S. App. 1, 23 C. C. A. 609, 78 Fed. 7; and that Court refused to extend the rule of the cases cited in notes 2, 3 and 4, to another case not strictly within such rule, the Court strongly intimating that those decisions are materially restricted by Prior to the decisions of the Supreme Court in the cases cited in notes 2 and 3, it was held by several Circuit Courts of the United States that such Courts had jurisdiction of an equitable action, brought pursuant to a State statute, to recover judgment for the amount of a debt and at the same time set aside a 263. fraudulent conveyance. A carefully prepared opinion reaching this conclusion is to be found in Buford v. Holley, 28 Fed. 680. 5 "Whether the jurisdiction of this Court is upon its law side or its equity side will be determined! Cowley v. Northern Pac. R. Co., 159 U. S. 569, 16 Sup. Ct. 127, 40 L. $ 57. 1 Fouvergne v. New Orleans, 18 How. 470, 15 L. 399. 2 Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. 867, reversing Shields v. McAuley, 37 Fed. 302; Ellis v. Davis, 109 U. S. 485, 3 |