nized by the Federal court.50 It has been held: that a suit to collect the double liability imposed by the Constitution and statutes of Kansas, upon the stockholders of certain corporations, is contractual in its nature and runs to the creditors individually, not to the corporations; and that it can only be enforced in an action at common law, even when the petition charges that the defendant and other stockholders have made a colorable and fraudulent transfer of their stock to another corporation for the purpose of escaping such liability.51 § 83. State statutes cannot impair the jurisdiction nor regulate the practice of Federal courts of equity. No State statute giving one of its courts-for example, a court of probate-exclusive jurisdiction of a certain class of litigation can impair the jurisdiction of the Federal courts.1 No State statute enlarging the powers of courts of common law can impair the jurisdiction of a Federal court of equity.2 No State statute diminishing or destroying an equitable remedy, or in any way regulating the practice in courts of equity, can have any effect upon the jurisdiction or practice of the Federal courts.3 Such are statutes requiring a mortgagor to tender the debt secured by his mortgage before filing a bill to redeem the mortgaged premises; requiring a bill to foreclose a mortgage given 4 50 Harrison v. Remington Paper Co., C. C. A., 3 L.R.A. (N.S.) 954, 140 Fed. 385. 51 Anglo-Am. Land M. & A. Co. v. Lombard, 132 Fed. 721. § 83. 1 Suydam v. Broadnax, 14 Pet. 67, 10 L. ed. 357; Hull v. Dills, 19 Fed. 657; Semmes v. Whitney, 50 Fed. 666; Hershberger, v. Blewett, 55 Fed. 170; Heaton v. Thatcher, 59 Fed. 731. 2 McConihay v. Wright, 121 U. S. 201, 206, 30 L. ed. 932, 933; and cases cited. Borden's Condensed Milk Co. v. Baker, C. C. A., 177 Fed. 906, where the State statute gave relief in certiorari; Western Union Tel. Co. v. Trapp, C. C. A., 186 Fed. 114, a suit to enjoin the collection of taxes. 3 Boyle v. Zacharie, 6 Pet. 648, 8 L. ed. 532; Bein v. Heath, 12 How. (U. S.) 168, 179, 13 L. ed. 939, 944; Noonan v. Lee, 2 Black, 499, 509, 17 L. ed. 278, 281; Thompson v. Railroad Cos., 6 Wall. 134, 18 L. ed. 765; Cowles v. Mercer County, 7 Wall. 118, 19 L. ed. 86; Payne v. Hook, 7 Wall. 425, 19 L. ed. 260; Railway Co. v. Whitton's Adm'r, 13 Wall. 270, 285, 20 L. ed. 571, 576; Smith v. Railroad Co., 99 U. S. 398, 25 L. ed. 437. But see Massachusetts B. L. Ass'n v. Lohmiller, C. C. A., 74 Fed. 23. 4 Gordon v. Hobart, 2 Sumn. 401. See Klenk v. Byrne, 143 Fed. 1008. to secure a judgment to show that execution has been issued under the judgment and returned unsatisfied; 5 requiring leave to be obtained from a State court before a suit can be brought to enforce a judgment therein entered; or the presentment of a claim to the comptroller 7 or city council or a county board or the termination of an appeal to a specified State court from the decision of the municipal authorities upon such an appeal,10 before a suit against the city; or at least when the United States are the claimants, the presentment of a claim to an executor before a suit thereupon can be revived against the estate of a decedent; 11 forbidding an injunction against the collection of illegal taxes; 12 but a State statute forbidding an injunction against the improper operation of a benefit society except at the suit of the Attorney General was followed;18 requiring that a bond be given before an injunction can be granted; or regulating the form of the security then required or the proceedings to enforce the same; 14 regulating the fees in receiverships; 15 determining what shall constitute notice of a pending suit; authorizing persons to agree upon a statement of facts, and to stipulate that the court take jurisdiction to try a cause and render a decree without pleadings; 17 authorizing an appearance by his general guardian, to bind an infant not personally served with process; 18 in the absence of a Federal statute, authorizing the 8 Barber Asphalt Pav. Co. v. Morris, C. C. A., 132 Fed. 945, 66 C. C. A. 55, 67 L.R.A. 761. 9 Covington County v. Stevens, C. C. A., 256 Fed. 328. 10 Barber Asphalt Pav. Co. v. Morris, C. C. A., 132 Fed. 945. 11 Pond v. U. S., C. C. A., 111 Fed. 989. 12 In re Tyler, 149 U S. 164, 189, 37 L. ed. 689, 697; Western Union Tel. Co. v. Trapp, C. C. A., 186 Fed. 114; City Council of Augusta v. Timmerman, 227 Fed. 171; Speidel 16 v. N. Barstow Co., 243 Fed. 621. 13 Cummings v. Supreme Council of Royal Arcanum, 247 Fed. 992. 14 Bein v. Heath, 12 How. (U. S.) 168, 13 L. ed. 939; Russell v. Farley, 105 U. S. 437; 26 L. ed. 1061; Meyers v. Block, 120 U. S. 206, 211, 30 L. ed. 642, 643. 15 Guaranty Tr. Co. v. Galveston City R. Co., 107 Fed. 311. But see 25 St. at L. 436. 16 McClaskey v. Barr, 48 Fed. 130, 132. Contra, Jones v. Smith, 40 Fed. 314; Gamble v. Rural Independent School Dist., 76 C. C. A., 539, 146 Fed. 113. 17 Nickerson v. Atchison, T. & S. F. R. Co., 1 McCrary, 383. 18 N. Y. Life Ins. Co. v. Bangs, 103 U. S. 780, 26 L. ed. 609. examination of a party 'before trial; 19 or, regulating the manner of taking depositions; 20 providing that a county can be sued only in a specified State court; 21 forbidding a foreign corporation to sue until it has complied with a statutory condition.22 It has been said that proceedings for the foreclosure of a mortgage in a Federal court should proceed upon the ordinary lines of such proceedings in the State courts.23 But it has been held that equitable relief may be given on the submission, upon an agreed statement of facts, of an action of assumpsit brought on the common-law side of the court, and a stipulation that judg ment should be rendered in accordance with the opinion of the court thereupon.24 A State statute providing that if by mistake a suit was brought in equity which should have been at common law there should be no abatement, but that the cause be transferred to the common-law docket, was followed in the Federal court.25 The New York statute providing that, upon the consolidation of two corporations, suits pending by or against either shall not abate, will be followed by the Federal courts at equity, "not because the State statute is operative to regulate the practice and procedure of Federal courts in equity suits, but because, so far as the litigated life of the artificial person (properly a party to the suit when brought) is concerned, there has been no change, the only power which could destroy it having scrupulously refrained from doing so." 26 19 Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117; Dravo v. Fabel, 132 U. S. 487, 33 L. ed. 421; Harks Dental Ass'n v. International T. C. Co., 194 U. S. 303, 48 L. ed. 989. See infra, $359. 20 Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117; Dravo v. Fabel, 132 U. S. 487, 33 L. ed. 421; Hanks v. Dental Ass'n v. International T. C. Co., 194 U. S. 303, 306, 48 L. ed. 989, 990; U. S. v. 50 Boxes and Packages of Lace, 92 Fed. 601; Tabor v. Indianapolis Journal Newspaper Co., 66 Fed. 423. See infra, $$ 359, 372. 21 Cowles v. Mercer County, 7 Wall. 118, 19 L. ed. 86; Lincoln County v. Luning, 133 U. S. 529, 33 L. ed. 766. See Chicot County v. Sherwood, 148 U. S. 529, 37 L. ed. 546. 22 Bank of N. A. v. Barling, 44 Fed. 641; affirmed, as Barling v. Bank of N. A., C. C. A., 50 Fed. 260; Vitagraph Co. v. Twentieth Century Optiscope Co., 157 Fed. 699. 23 Deck v. Whitman, 96 Fed. 873; Knickerbocker Tr. Co. v. Penacook Mfg. Co., 100 Fed. 814. See, however, Nalle v. Young, 160 U. S. 624, 40 L. ed. 560. 24 Knight v. Fisher, 58 Fed. 991. 25 U. S. Bank v. Lyon County, 48 Fed. 632. 26 Edison Electric Light Co. v. U. § 84. Sources of Federal equity practice. The Revised Statutes provide: "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 process, 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."'1 The several "District Courts may, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court under the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters, in vacation, and otherwise regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings." These statutes are constitutional and the rules thus promulgated, when not in conflict with the Federal Constitution or a statute of the United States, have the force and effect of law.4 S. El. Light Co., 52 Fed. 300, 313; § 84. 1 U. S. R. S., § 917. 3 Wayman v. Southard, 10 Wheat. 1, 6 L. ed. 253; Beers v. Houghton, 9 Peters, 338, 359, 9 L. ed. 149; Fed. Prac. Vol. I-37 White v. Toledo, St. L. & K. C. R. 4 Bank of U. S. v. White, 8 Peters, 262, 269, 8 L. ed. 938, 941; Seymour v. Philips & Colby Const. Co., 7 Biss. 460, Fed. Cas. No. 12689; Northwestern Mut. Life Ins. Co. v. Keith, C. C. A., 77 Fed. 374; Am. Graphophone Co. v. Nat. Phonograph Co., 127 Fed. 349; U. S. v. Barber Lumber Co., 169 Fed. 184. It was held that a Circuit Court of Appeals had no authority to promulgate a rule permitting the prosecution of appellate proceedings in forma pauperis. Bradford v. Southern Ry. Co., 195 U. S. 243, 25 Sup. Ct. 55, 49 L. ed. 178; Re Bradford's Petition, C. C. A., 139 Fed. 518, 71 They bind the United States as well as individuals.5 Under these provisions prior to the year 1912 the Supreme Court had from time to time promulgated ninety four rules of equity prac tice and most of the inferior courts have also adopted rules of their own. The ninetieth equity rule of the Supreme Court, which was promulgated in March, 1842, provided that, "in all cases where the rules prescribed by this court or by the Circuit Court do not apply, the practice of the Circuit Court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice." The previous rule promulgated at the October term, 1822, was: "In all cases where these rules prescribed by this Court or the Circuit Courts, do not apply, the practice of the Circuit Courts shall be regulated by the practice of the High Court of Chancery in England.”7 Judge Sawyer said: "The rule quoted simply regulates the practice in exercising the jurisdiction of the court in those respects wherein the rules adopted do not apply; but the practice of the High Court of Chancery is to applied, not as controlling, but simply as furnishing just analogies to regulate the practice. 198 By reference to these sources and the decisions of the courts resulting from them, the practice at equity in the courts of the United States was formerly determined. C. C. A., 334; overruling Reed v. Pennsylvania Co., C. C. A., 111 Fed. 714, 49 C. C. A. 572. See infra, 413. 5 U. S. v. Barber Lumber Co., 169 Fed. 184. The Equity Rules of 1822 are published in 7 Wheaton XVII., 5 L. ed. 375. The Equity Rules of 1842, in 1 Howard, XLI. The amendments thereto are to be found in the volumes of the reports, published about the time of their promulgation. For a criticism of the practice under these rules, see Monarch Vacuum Cleaner Co. v. Vacuum Cleaner Co., 194 Fed. 172. In minor particulars, many of the courts disregarded them. In C. C., W. D. Tenn, no entry was made in the order-book for more than seven years. Electrolibration Co. v. Jackson, 52 Fed. 773, 774. In E. D. Mo., for a long time no order-book was kept. Hopkins' Rules, 10. 6 See Kelley v. T. L. Smith Co., C. C. A., 196 Fed. 466. 7 Rule XXXIII, 7 Wheaton, XIII. 8 Lewis v. Shainwald, 7 Saw. 403, 405. |