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."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 2

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;

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.

3

or by removal, 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

3 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
U. S. App. 703, 34 C. C. A. 51, 91
Fed. 689;

Hall v. Gambrill, 63 U. S. App.
740, 34 C. C. A. 190, 92 Fed. 32;
England v. Russell, 71 Fed. 818;
Gombert v. Lyon, 80 Fed. 305;
D. A. Tompkins Co. v. Catawba
Mills, 82 Fed. 780.

case,' but the right of removal is
not affected by any such question.
That right exists if, upon either
side, the requisite jurisdiction ex-
ists. Where a cause brought here
by removal cannot be entertained
upon the one side, it must be as-
signed 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 re-
viewed by the Circuit Court of Ap-
peals 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;

Prior to the decisions of the Su- and that Court refused to extend preme Court in the cases cited in the rule of the cases cited in notes notes 2 and 3, it was held by several 2, 3 and 4, to another case not Circuit Courts of the United States strictly within such rule, the Court that such Courts had jurisdiction strongly intimating that those deof an equitable action, brought pur- cisions are materially restricted by suant to a State statute, to recover Cowley v. Northern Pac. R. Co., judgment for the amount of a debt 159 U. S. 569, 16 Sup. Ct. 127, 40 L. 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!

§ 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

1

States Circuit Court may, so the decisions say, entertain a suit to construe and enforce a will already probated.3

The administration of the estates of decedents belongs, not to law or equity courts as such, but to courts variously called probate courts, surrogate courts, orphans' courts, etc., which have succeeded to the jurisdiction, in that respect, of the ecclesiastical courts of England. Therefore, under the pres

Sup. Ct. 327, 27 L. 1006, affirming | App. 488, 9 C. C. A. 565, 61 Fed. s. c., 8 Fed. Cas. 550, 4 Woods 6; 423, affirming Green v. Terwilliger, Kieley v. McGlynn ( Case of Brod- 56 Fed. 384; erick's Will), 21 Wall. 503, 22 L. 599;

Everhart v. Everhart, 34 Fed. 82.
Where property has been levied

Yonley v. Lavender, 21 Wall. on by a United States marshal un276, 22 L. 536; der an execution from a United Gaines v. New Orleans, 6 Wall. States Court, and the debtor dies, 642, 18 L. 950; the property should be sold by the Gaines v. Chew, 2 How. 619, 11 marshal and not turned over to a L. 402; probate court of the State for ad

Tarver v. Tarver, 9 Pet. 174, 9 L. ministration. 91;

Bedford Quarries Co. v. Thomlinson, 36 C. C. A. 272, 95 Fed. 208; Jordan v. Taylor, 98 Fed. 643; Oakley v. Taylor, 64 Fed. 245; Cilley v. Patten, 62 Fed. 498; Sowles v. First Nat. Bank, 54 Fed. 564;

Freeney v. First Nat. Bank, 16 Fed. 433, 3 McCr. 622;

Rio Grande R. Co. v. Gomila, 132 U. S. 478, 10 Sup. Ct. 155, 33 L. 400, reversing s. C., 28 Fed. 337.

3 Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. 1164, 32 L. 138;

Walker v. Atmore, 3 U. S. App. 131, 1 C. C. A. 595, 50 Fed. 644;

Wood v. Paine, 66 Fed. 807;
Toms v. Owen, 52 Fed. 417;
Chicago, B. & Q. R. Co. v. Wasser-

Mathewson v. Sprague, 16 Fed. | man, 22 Fed. 872;

Cas. 1103, 1 Curt. 457;

Coulson v. Holmes, 6 Fed. Cas.

Reid v. Kerfoot, 20 Fed. Cas. 482, 627, 5 Sawy. 279, 6 Reporter 674, 11

Chi. Leg. News 49, 24 Int. Rev.

Chase 349;
Burnside's Succession, 34 La. Rec. 358, 7 Cent. L. J. 446;
Ann. 728;

Brownell v. De Wolf, 4 Fed. Cas.

Tibbatts v. Berry, 49 Ky. (10 B. 444, 3 Mason 486. Mon.) 473, 490.

The exceptions to this rule are pointed out in several cases, notably in the Case of Broderick's Will, supra, and in

Ball v. Tompkins, 41 Fed. 486. Some cases seem to carry the exceptions beyond what sound principle will warrant.

Richardson v. Green, 15 U. S.

There are other cases in the reports too numerous for citation where this has been done without question.

4 Robinson v. Fair, 128 U. S. 53, 9 Sup. Ct. 30, 32 L. 415;

Kieley v. McGlynn (Case of Broderick's Will), 21 Wall. 503, 22 L. 599;

ent statute, which limits removals to suits at law or in equity, there can be no removal of a probate proceeding from a State court to a United States Circuit Court.5

Armstrong v. Lear, 12 Wheat. 395. 169, 6 L. 589;

Comstock v. Herron, 6 U. S. App.
626, 5 C. C. A. 266, 55 Fed. 803;
In re Foley, 76 Fed. 390;
In re Foley, 80 Fed. 949;
Adams v. Lewis, 1 Fed. Cas. 132,
5 Sawy. 229, 10 Chi. Leg. News 403;
Burnside's Succession, 34 La.
Ann. 728.

For a discussion of the jurisdiction of the ecclesiastical courts of England, see

"The 12th section of the act of Congress of 1789, to establish judicial Courts of the United States, .. has no application to this Bacon's Abridgment, title "Ec- proceeding for the probate of a clesiastical Courts D."

will." Tibbatts v. Berry, 49 Ky.

For a history of probate courts, (10 B Mon.) 473, 490.

5 Wahl v. Franz, 40 C. C. A. 638, see ante § 7. 100 Fed. 680, 49 L. R. A. 62;

In re Aspinwall's Estate, 83 Fed.

Brodhead v. Shoemaker, 44 Fed. 518, 11 L. R. A. 567,

the Court held that a proceeding inter partes for the probating of a

Copeland v. Bruning, 72 Fed. 5; will, is a removable one under the

§ 58. Suits at law or in equity, though allied to probate proceedings, are within the jurisdiction of the United States Circuit Courts.-The United States Circuit Courts ad

present act; the parties being all the decedent's heirs at law. That case was followed in

Franz v. Wahl, 81 Fed. 9;

but the latter decision was reversed
by

Wahl v. Franz, supra.
In

based chiefly upon what is supposed to have been decided in

Gaines v. Fuentes, 92 U. S. 10, 23 L. 524, reversing Fuentes v. Gaines, 25 La. Ann. 85.

Strange as it may seem, that case is relied upon by the Courts in Copeland v. Bruning, supra, Reed

Southworth v. Adams, 4 Fed. 1, v. Reed, supra, and In re Frazer, 9 Biss. 521, supra, as deciding directly the opposite!

it was held that, although a United States Circuit Court has no original jurisdiction of such an action, a proceeding begun in a State court by a legatee against the heir at law to establish and probate a lost will, was removable to a United States Circuit Court under the act of 1875, ante § 7, note 7. By reason of the change in the statute, that decision is against, rather than in favor of, a removal under the present act, ante § 7, discussed post § 64.

That suit (Gaines v. Fuentes) was held removable under the act of 1867, codified as Rev. St., § 639, cl. 3, ante § 7, note 6. There is a vigorous dissenting opinion by three Justices. The radical changes in the statutes as to what suits may be removed, make the case a very unsafe precedent, if not wholly inapplicable, under the present act. That decision is based upon the doctrine that the removal act

Under the same act (of 1875) it of 1867 applied to all classes of was held in

Craigie v. McArthur, 6 Fed. Cas. 736, 4 Dill. 474, 9 Chi. Leg. News 156, 4 Cent. Law J. 237, 15 Alb. Law J. 121, Syllabi 115, 23 Int. Rev. Rec. 42,

by Judge Nelson that a contest between the heirs, upon the hearing of an administrator's final report, in regard to the distribution of the estate of a deceased person, was removable from a State court to the United States Circuit Court.

Reference may also be made to Filer v. Levy, 17 Fed. 609; Boman v. Boman, 47 Fed. 849; 8. c., 7 U. S. App. 63, 1 C. C. A. 274, 49 Fed. 329.

These cases, asserting the removability of probate suits, are

suits, and was not limited to such as might have been brought originally in the United States Circuit Court, reversing upon this question the decision of the Louisiana supreme court.

Referring to the status when the act of 1789, ante § 7, note 3, was in force,-and the same rule applies now,-the Supreme Court of the United States said in Gaines v. Fuentes:

"No case could then be transferred from a State court to a Federal Court, on account of the citizenship of the parties, which could not originally have been brought in the Circuit Court."

A quotation from the prevailing opinion in Gaines v. Fuentes, supra,