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no adequate remedy for the loss thereby occasioned; to pre

possession, and to enjoin the latter from committing waste while mining ore upon the premises. Big Six Development Co. v. Mitchell, C. C. A., 1 L.R.A. (N.S.) 332, 138 Fed. 279. Independently of statute, it was held that a Federal court had jurisdiction of a bill to quiet title by a complainant out of possession; where the questions in issue included the establishment of the fact of an administratorship and the interpretation and effect of an administrator's deed, under which the complainant claimed. Butterfield v. Miller. C. C. A., 195 Fed. 200; and where the complainant alleged title to a tract of land embracing 147,000 acres against a number of defendants, each of whom claimed title to a separate portion thereof and was in possession of the same. Buchanan Co. v. Adkins, C. C. A., 175 Fed. 692. But see infra, $141. But not solely for purposes that could be accomplished by an action in ejectment, Hipp v. Babin, 19 How. 271, 15 L. ed. 663; Lewis v. Cocks, 23 Wall. 466, 23 L. ed. 70; Ellis v. Davis, 109 U. S. 485, 27 L. ed. 1006; Killian v. Effiinghaus, 110 U. S. 568, 28 L. ed. 246; U. S. v. Wilson, 118 U. S. 86, 30 L. ed. 110; Speigle v. Meredith, 4 Bliss. 120. South Penn Oil Co. v. Miller, C. C. A., 175 Fed. 729. Nor a bill for a partition filed by a tenant in common out of possession; who has been disseised by his co-tenant, Frey v. Willoughby, C. C. A., 63 Fed. 865; nor where the complainant's title is denied, American Ass'n v. Eastern Ky. Land Co., 68 Fed. 721, but see Fuller v. Montague, 59 Fed. 212; except when the complainant's title

is not recognized at common law, Hopkins v. Grimshaw, 165 U. S. 342, 358; nor to quiet the title to real estate when the complainant's rights are purely equitable, Frost v. Spitley, 121 U. S. 552; nor, in the absence of a State statute authorizing such a suit, when he is not in possession of the land, U. S. v. Wilson, 118 U. S. 86, 30 L. ed. 110; Frost v. Spitley, 121 U. S. 552, 30 L. ed. 1010; $$ 82, 83, infra. New Jersey Land & Lumber Co. v. Gardener Lacy Lumber Co., 190 Fed. 861, but, in such a case, it may be presumed that the possession of uninclosed woodland follows the legal title, and in such a case equity has intervened, Graves v. Ashburn, 215 U. S. 331, 54 L. ed. 217.

39 Since imported goods in the custody of the collector cannot be replevied, U. S. R. S., § 934, a bill in equity may be maintained to reCover their possession, Pollard v. Reardon, 65 Fed. 848. But not usually, to restrain the seizure or to compel the return of personal property, Knox v. Smith, 4 How. 298, 11 L. ed. 983; Van Norden v. Morton, 99 T. S. 378, 25 L. ed. 453; Jones v. MacKenzie, C. C. A., 122 Fed. 390; but see Crane v. McCoy, 1 Bond, 422; unless its loss by the owner would result in irreparable injury by the destruction of his business and commercial credit, Watson v. Sutherland, 5 Wall. 74, 18 L. ed. 580; North v. Peters, 138 U. S. 271, 34 L. ed. 936; or by rendering it im-7 possible for him to manage his farm, Breeden v. Lee, 2 Hughes, 484; or on account of its unique value, Pusey v. Pusey, 1 Vern. 278; Duke of Somerset v. Cookson, 3 P. Wms. 389

vent a needless multiplicity of suits; 41 and to compel the can

But see Lawrence v. Times Printing Co., 90 Fed. 24, or if it be held in trust, New Orleans v. Morris, 105 U. S. 600, 26 L. ed. 1184; Reynes v. Dumont, 130 U. S. 354, 32 L. ed. 934. 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. In re Oregon Iron Works, 4 Saw. 169, 170; s. c., 17 N. B. R. 404.

40 Gunn v. Brinckley C. W. & M. Co., 66 Fed. 382. Bills for accounting are discussed subsequently under $151a.

41 Freeman V. Pontrell, Chan Cal. XIII; Earl of Bath v. Sherwin, 4 Bro. P. C. 373; Woods v. Monroe, 17 Mich. 238; Cummings v. National Bank, 101 U. S. 153, 25 L. ed. 903; Dodge v. Briggs, 27 Fed. 161; Hale v. Allison, 188 U. S. 56, 47 L. ed. 380; Donovan v. Pennsylvania Co., 199 U. S. 279, 50 L. ed. 192; General Film Co. v. Sampliner, C. C. A., 252 Fed. 143. The licensor was permitted to sue in equity to enjoin the licensee from violating its covenant against infringement of several of these patents. Reece Folding Mach. Co. v. Earl V. Wilson, 205 Fed. 539. See $146 infra.

Bills in equity may be filed to set aside a land patent, issued in violation of a statute, when the bill is filed by the party entitled to the land, Southern Pac. R. Co. v. Wiggs, 43 Fed. 333, but not, it has been held, to decree a forfeiture of a land grant, and to recover the land so granted for a breach of a condidition subsequent, in the absence of a declaration of forfeiture by Con

ress or of express statutory authority from Congress to institute the suit, U. S. v. Washington Improvement & Development Co., 189 Fed. 674. Cf. U. S. v. Northern Pac. R. R. Co., 177 U. S. 435, 20 Sup. Ct 706, 44 L. ed. 836. Contra, U. S. v. Whitney, 176 Fed. 593. To procure an adjudication that a land patent, which has been obtained from the United States through an error of law or a gross mistake of fact or fraud, belongs to the original owner of the equitable title of the land, Howe v. Parker, C. C. A., 190 Fed. 738. But not when the bill is filed by one who has never placed himself in privity with the United States by the acceptance of a grant,


settlement, and improvement, or occupation, entry or payment. Campbell v. Weyerhaeuser, C. C. A., 161 Fed. 332. A person whose application to purchase has been rejected by the Land Department cannot bring such a suit. Ibid. "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 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." Gray, J., in Frost v. Spitley, 121 U. S. 552, 556, 30 L. ed. 1010; citing Carroll v. Safford, 3 How. 441, 463, 11 L. ed. 671; Van Wyck v. Knevals, 106 U. S. 360, 370, 27 L. ed. 201; Van Brocklin v. Tennessee, 117 U. S. 151, 169, 29 L. ed. 845, 851.

cellation or execution of instruments,42 the existence or want of which is a cloud upon, or an apparent flaw in, a person's title, or would render it difficult for him to resist an unjust demand, or to dispose of property by sale.

"Mere complication of facts alone and difficulty of proof are not a basis of equitable jurisdiction."' 43 Nor is it sufficent ground for the interference of a court of equity that the evidence in a cause is voluminous and tedious. It has been said: "To give a court of equity jurisdiction, the nature of the relief asked must be equitable, even when the suit is based on an equitable title."' 45 The inadequacy of the remedy at law which will justify relief in equity does not consist merely in its failure to produce the relief sought, that is a not unusual result of all remedies,-but that in its nature or character it is not fitted or adapted to the end in view.46 An adequate remedy in a foreign court is not sufficient to deprive the court of equitable jurisdiction.47 Where a bill rightfully invokes the equitable jurisdiction of the court, the court cannot refuse to entertain it because of conditions that came into existence after it was filed, 48 unless they were caused by the fault of the complainant.49

42 Pierce v. Webb & Stalker, note to Ryan v. Mackmath, 3 Bro. C. C. 15; Peake v. Highfield, 1 Russ. 559, and cases cited; Bunce v. Gallagher, 5 Blatchf. C. C. 481; Quinby v. Consumers' Gas Trust Co., 140 Fed. 362. Bills may be filed to set aside a contract obtained by fraud, Boyce v. Grundy, 3 Pet. 210, 7 L. ed. 655. To set aside a conveyance obtained for a grossly inadequate consideration from a man in a state of intoxication, partly caused by the acts of the defendant, Thackrah v. Haas, 119 U. S. 499, 30 L. ed. 486. To establish a deed which has been destroyed by the defendant. Midkiff v. Colton, C. C. A., 252 Fed. 420. Gildner v. Hall, 227 Fed. 704. See infra, § 151f.

48 Curriden v. Middleton, 232 U. S. 633, per Holmes, J.

44 Bowen v. Chase, 94 U. S. 812, 824, 24 L. ed. 184, 187.

45 Fussell v. Gregg, 113 U. S. 550, 554, 28 L. ed. 993, 994, per Woods, J.

46 Miller, J., in Thompson v. Allen County, 115 U. S. 550, 554, 29 L. ed. 472, 473. Cf. Texas & P. Ry. Co. v. Marshall, 136 U. S. 393, 405, 34 L. ed. 385, 390; St. Louis-San Francisco Ry. Co. v. McElvain, 253 Fed. 122.

47 State ex rel. Gilbert Eliot & Co. V. Lake Torpedo Boat Co. (Conn.), 98 Atl. 580.

48 Carnegie Steel Co. v. Colorado Fuel & Iron Co., 165 Fed. 195; Fay v. Hill, C. C. A., 249 Fed. 420.

49 Friedley-Voshardt Co. v. Reliance Metal Spinning Co., 238 Fed. 800.

§ 79a. Who seeks equity must do equity. The maxims enforced by other courts of equity are followed by the Federal courts.

The maxim that he who seeks equity must do equity is of very ancient origin. ....

He who seeks equity must do equity in the courts of the United States. This rule is enforced either by requiring an offer to do equity to be made by the complainant in his bill,2 or by the entry of a decree conditioned upon such conduct by him, or in some cases by requiring the performance of some act before suit is brought.4


The more usual instances are: the requirement that bills for relief against excessive taxation should aver payment of what is conceded to be due; suits to set aside a judicial sale and applications for the appointment of receivers.7

This maxim does not apply to a defendant unless he files a cross bill or counter claim.8

§ 79b. Requirement of clean hands. He who seeks equity must come with clean hands. This doctrine is most frequently enforced in trademark cases where a party whose trademark contains a fraudulent representation is denied relief.2 It has

§ 79a. 1 State R. R. Tax Cases, 92 U. S. 575, Fosdick v. Schall, 99 U. S. 235; Cronen v. Moore, C. C. A., 210 Fed. 239; Broatch v. Boysen, C. C. A., 236 Fed. 516; Rollman Mfg. Co. v. Universal Hardware Works, C. C. A., 238 Fed. 568; Alexander v. Fidelity Trust Co., 238 Fed. 938; Seaples v. Card, 246 Fed. 501; Louisiana Agricultural Corporation v. Pelican Oil Refining Co., Inc., C. C. A., 256 Fed. 822. See Niblett v. McFarland, 92 U. S. 101; Reed v. Tyler, 56 Ill. 288.

2 Missouri K. & Tr. Co. v. Krumseig, 172 U. S. 351, 43 L. ed. 474, infra, § 153.

3 Walden v Bodley, 14 Peters 156, 164, 165, 10 L. ed. 398, 401, 402; Fosdick v. Schall, 99 U. S. 235, 25 L. ed. 339, infra, § 153.

4 Fosdick v. Schall, 99 U. S. 235,

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6 Davis v. Gaines, 104 U. S. 386, 76 L. ed. 757, infra, § 153.

7 Fosdick v. Schall, 99 U. S. 235, 25 L. ed. 339, infra, § 153a.

8 Columbus v. Mercantile Tr. Co., 218 U. S. 645, 54 L. ed. 193; infra, $ 400.

§ 79b. 1 Primeau v. Granfield, C. C. A., 193 Fed. 911; Mathews v. Wayne Junction Tr. Co., 197 Fed. 237; Pickford v. Talbott, 225 U. S. 651, 56 L. ed. 1240; Dancigar v. Stone, 187 Fed. 853.

2 Diamond Crystal Salt Co. v. Worcester Salt Co., C. C. A., 221 Fed. 66; Channell Chemical Co. v. E.

also been applied to a case where the complainant's trademark was an unfair imitation of one previously used by a stranger to the suit. The doctrine has not been extended so as to deny the right to sue for the infringement of a trademark or unfair competition, by imitation thereof, when the trademark is a label which contains a notice of a copyright that does not exist.* The maxim has been applied to a suit to protect the name of a vaudeville sketch which the complainant had advertised as performed by the use of telepathy whereas the result was produced by use of a code of secret signals. To a suit to enjoin the refusal of a license for a moving picture which although morally unobjectionable had been advertised so as to suggest that it was an indecent exhibition. To a suit to enjoin the enforcement of a State "Blue Sky Law" regulating the sale of securities, when the system of the business transacted by the complainant showed on its face that it was intended to defraud purchasers. To a suit for the infringement of a copyright, where the complainant had committed in the publication of the book for which he sought protection piracies similar to those of which he complained. To a suit by an alien to prevent infringement of his American copyright when he had published in his own country a larger book there copyrighted with a notice that this included the matter copyrighted in the United States without indicating in the latter publication what matter was taken from the former.8 To a suit to enjoin a baseball player from playing with another club when the complainants


W. Hayden Co., C. C. A., 222 Fed. 162; Koke Co. of America v. Cocacola Co., C. C. A., 255 Fed. 895; Leather Cloth Co. v. Am. Leather Cloth Co., 11 H. L. C. 523, affirming, Lord Chancellor Westbury in 10 Jurist N. S. 81; Werden v. Cal. Fig Syrup Co., 187 U. S. 516, 23 Sup. Ct. 161, 47 L. ed. 282. For recent cases where it was held that there was no fraud. See Allen v. Walker & Gibson, 235 Fed. 230, 246.

8 Ubeda v. Zialeita, 226 U. S. 452.

4 M. B. Fahey Tobacco Co. v. Senior, 247 Fed. 809.

5 In Howard v. Lovett, in the Supreme Court of Michigan (December, 1917, 165 N. W., 634).

6 Ivan Film Production v. Bell, N. Y. Sup. Ct. Sp. Tm. per Shearn, J.; N. Y. L. J., Dec. 5, 1916.

7 National Mercantile Co. v. Keating, 218 Fed. 477.

8 Edward Thompson Co. v. Am. Law Book Co., C. C. A., 122 Fed. 922, 925.

8a Bentley v. Tibbals, C. C. A., 223 Fed. 247.

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