even one out of possession of vacant land, to maintain a bill to determine in equity the title to the same or to recover possession thereof; but not a State statute authorizing one out of the possession of land without a trial by jury to obtain possession of the same when occupied by an adverse claimant.9 It will follow a State statute making an assessment for opening streets a lien upon abutting lands, which can be foreclosed by the city or its assignee; 10 authorizing the appointment of a receiver under certain conditions, which in the Federal courts must then also be performed; 11 authorizing any creditor or stockholder to sue to wind up the affairs of a corporation which has become insolvent or suspended its ordinary business for want of funds,12 but not a State statute authorizing a court of equity to dissolve a corporation; 13 authorizing a bill for a partition of an equitable claim to land the legal title to which is in the United States; 14 authorizing an injunction to be granted

action in his own name to remove a cloud upon title will be given effect by a Federal court, and under such statute the lessor is not an indispensable party to a suit by a lessee for ninety-nine years, obligated by the terms of the lease to pay all taxes and assessments against the property, to set aside an assessment for local improvements on the ground of its invalidity. New York, N. H. & H. R. Co. v. City of New York, 145 Fed. 661. 8 Holland v. Challen, 110 U. S. 15, 28 L. ed. 52; Southern Pac. R. Co. v. Stanley, 49 Fed. 263; Field v. Barber Asphalt Co., 117 Fed. 925; Smith Oyster Co., v. Darbee & Immel Oyster & Land Co., 149 Fed. 555.

9 Whitehead v. Shattuck, 138 U. S. 146, 34 L. ed. 873; Wehrman v. Conklin, 155 U. S. 314, 325, 39 L. ed. 167, 173; Giberson v. Cook, 124 Fed. 986; Union Pac. R. Co. v. Cunningham, 173 Fed. 90; Baum V. Longwell, 200 Fed. 450. See Klenk v. Byrne, 143 Fed. 1008; Contra Farr

v. Hobe-Peters Land Co., C. C. A., 188 Fed. 10. It has been held that the bill is demurrable when it fails to allege affirmatively either that the plaintiff is in possession, or that both complainant and defendant are out of possession. So. Pac. R. Co. v. Goodrich, 57 Fed. 879.

10 Fitch v. Creighton, 24 How. (U. S.) 159, 16 L. ed. 596.

11 McGraw v. Mott, C. C. A., 179 Fed. 646. (§ 65 of N. J. Corp. Act, N. J. P. L. 1896, p. 298).

12 Flash v. Wilkerson, 22 Fed. 689; Fechheimer v. Baum, 2 L.R.A. 153, 37 Fed. 167; T. & W. M. Co. v. Shatto, 34 Fed. 380; Conklin v. U. S. Shipbuilding Ass'n, 123 Fed. 913; s. c., C. C. A., 126 Fed. 132; Land Title & Tr. Co. v. Asphalt Co., C. C. A., 127 Fed. 1. But see Scott v. Neely, 140 U. S. 106, 35 L. ed. 358.

13 Conklin v. U. S. Shipbuilding Co., 140 Fed. 219. Contra, Jacobs v. Mexican Sugar Co., 130 Fed. 589.

14 Aspen Mining & Smelting Co. v. Rucker, 28 Fed. 220

in a new class of cases, 15 where there is no dispute as to the legal title of the complainant, as in a taxpayer's suit to restrain the waste of municipal property.16 But, it has been held, that a Federal court of equity cannot follow a State statute authorizing an injunction against the collection of a tax, in a case where equity, independently of statutory authority, would have no such jurisdiction.17

Federal courts of equity have followed statutes authorizing an action for the protection of a water right, in which all persons who have diverted water from the same stream or source are joined, and the court, in one judgment, settles the relative rights and priorities of all parties to the action; 18 empowering a guardian, with the permission of the State court, to mortgage his ward's estate, but not clauses providing that such a mortgage can only be foreclosed in the court which authorized its execution; 19 creating and providing for the enforcement of a mechanic's lien; 20 authorizing a bill by the debtor, to compel the return or cancellation of securities for a usurious loan, without payment or the offer of payment of the amount borrowed with the lawful interest 21-but it has been held that a court of equity may allow interest upon an unliquidated claim, although, by the State practice, such interest is not allowed,22

15 Cummings v. National Bank, 101 U. S. 153, 157, 25 L. ed. 903, 904; Lanier v. Alison, 31 Fed. 100; Grether v. Wright, C. C. A., 75 Fed. 742; Weidenfeld v. Sugar Run R. Co., 48 Fed. 615, 619; St. Louis & S. F. R. Co. v. S. W. Tel. & T. Co., C. C. A., 121 Fed. 276. See Stone Breaker v. Hunter, C. C. A., 215 Fed. 67, a right recognized by the common laws of the State. But see Davidson v. Calkins, 92 Fed. 230; Lehigh Valley C. Co. v. Hamblen, 23 Fed. 225.

16 Seccomb v. Wurster, 83 Fed. 856; Larabee v. Dolley, 175 Fed. 365.

17 Illinois Life Ins. Co. v. Newman, 141 Fed. 449. See, however, the authorities cited §§ 151g, 271b,

18 Ames Realty Co. v. Big Indian Mining Co., 146 Fed. 166.

19 Davis v. James, 2 Fed. 618.

20 Idaho & O. L. I. Co. v. Bradbury, 132 U. S. 509, 33 L. ed. 433; Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 579, 37 L. ed. 853, 856; John W. Hood & Co. V. Board of School Directors of Tangipahoa Parish, 210 Fed. 384. But see as to attorney's lien, Sherry v. O. S. N. Co., 72 Fed. 565.

21 Missouri, Kansas & Texas Tr. Co. v. Krumseig, 172 U. S. 351, 43 L. ed. 474; Olds v. Curlette, 145 Fed. 661. But see Matthews v. Warner, 6 Fed. 461, 465; affirmed without passing on this point, 112 U. S. 600, 28 L. ed. 851.

22 Pennsylvania Steel Co. v. N. Y.

and although at common law the State rulings upon this point would be followed; 23 authorizing a State court of equity to enforce an order of the State railroad commissioners, when a bill was filed to restrain the enforcement of such order; 24 authorizing a court of equity after the destruction of the public records to enter a decree establishing and confirming the title of a landowner; 25 authorizing the assignee of an insolvent to apply for the dissolution of levies of attachments and executions against his property; 26 and the Federal courts of equity enforce a vendor's lien recognized by the State common law.27 The United States Circuit Court for the District of Connecticut followed the State statute, providing that "Courts of equity may pass the title to real estate by decree without any act of the respondent, . . and such decree when recorded shall be as effectual as the adverse deed of respondent." 28 It has been held that the Federal courts in Ohio should follow the State statute authorizing a decree of specific performance against a non-resident not served within the State, provided that jurisdiction is obtained under the Revised Statutes of the United States; 29 that the summary method of foreclosing a mortgage under the Louisiana Code belongs on the equity side of the court; 30 and that the Louisiana statute authorizing a summary proceeding to set aside an incorrect assessment for taxation will be enforced pursuant to the chancery practice on the equity side of the court, and not in accordance with the State practice by a petition upon the common-law side.31 The Massachusetts employers' liability act, which authorizes an action to recover damages for the death of an employee, "to be assessed with reference to the degree of culpability of the employer or of the person for whose negli

City Ry. Co., C. C. A., 198 Fed. 778, 779.

23 Stephens v. Phoenix Bridge Co., C. C. A., 139 Fed. 248, 71 C. C. A. 374.

24 Platt v. Lecocq, C. C. A., 15 L.R.A. (N.S.) 558, 158 Fed. 723.

25 Gormley v. Clark, 134 U. S. 338, 33 L. ed. 909.

26 Brochon v. Wilson, 91 Fed. 617. 27 Fisher v. Shropshire, 147 U. S. 133, 37 L. ed. 109; Chilton v. Brai

den's Adm'x, 2 Black, 458, 17 L. ed. 304; Wilson v. Plutus Min. Co., C. C. A., 174 Fed. 317.

28 A. & W. Sprague Mfg. Co. v. Hoyt, 29 Fed. 421. See infra, § 441. 29 Single v. Scott Paper Mfg. Co., 55 Fed. 553, 557.

30 Fleitas v. Richardson, 147 U. S. 538, 37 L. ed. 272.

31 Lindsay v. First Nat. Bank, 156 U. S. 485, 39 L. ed. 505.

gence the employer is liable," is not a penal statute, in such a sense that an action based thereon may not be maintained in a Federal court at common law.32

A State statute cannot give a Federal court jurisdiction in equity of a case in which there is an adequate remedy at common law.33

The liability of shareholders for unpaid subscriptions to stock are several and independent. When they are unconditional and no issue with the corporation affecting such liabilities is common to the shareholders, the remedy of the corporation, or its trustee in bankruptcy, or receiver, is by action at common law against each shareholder separately.34 The same rule applies to a suit by a creditor under the same circumstances.35 It has been held that a State statute authorizing a suit in equity will not be followed.36 A Federal court will not follow a State statute which authorizes a creditor's bill against an individual 37 or a corporation,38 even against a stockholder where no accounting is required,30 by a complainant who has not obtained a judgment establishing his claim; but State statutes were followed which gave such a remedy to the creditor of an insolvent decedent,40

32 Malloy v. American Hide & Leather Co., 148 Fed. 482.

33 Whitehead v. Shattuck, 138 U. S. 146, 34 L. ed. 873; Scott v. Neely, 140 U. S. 106, 35 L. ed. 358.

34 Kelly v. Gill, 245 U. S. 116, California Statute; but see Brown v. Allebach, 156 Fed. 697, N. J. Statute.

35 Clinton Min. & Mineral Co. v. Cochran, C. C. A., 247 Fed. 449, South Dakota Statute; John A. Roebling's Sons Co. v. Kinnicutt, 248 Fed. 596, Maine Statute. Contra, 2nd Nat. Bank of Erie v. Georger, 246 Fed. 517, N. Y. Statute.

36 Alderson v. Dole, C. C. A., 74 Fed. 29, Maine Statute; 2nd Nat. Bank v. Georger, 246 Fed. 517, 518; Minn. Statute. John A. Roebling's Sons Co. v. Kinnicutt, 248 Fed. 596, Maine Statute. See Borland v. Haven, 37 Fed. 394, 405.

37 Scott v. Neely, 140 U. S. 106, 35 L. ed. 358; Cates v. Allen, 149 U. S. 451, 37 L. ed. 804; Gillespie v. Riggs, C. C. A., 253 Fed. 943, infra, § 151c.

38 Morrow Shoe Mfg. Co. v. New Eng. Shoe Co., 60 Fed. 341; Atlantic & F. R. Co. v. Western Ry. Co., C. C. A., 50 Fed. 790.

39 Alderson v. Dole, C. C. A., 74 Fed. 29.

40 Lilienthal v. Drucklieb, C. C. A., 92 Fed. 753. In the District of Columbia such a bill may be maintained without statutory authority. Kennedy v. Creswell, 101 U. S. 641 (at p. 645), 25 L. ed. 1075, 1076; s. c., Creswell v. Kennedy, 3 MacArthur, 78. Other authorities in the District Court to the same effect are, Dunn v. Murt, 4 Mack, 289; Richardson v. Penicks, 1 App. D. C. 261, at p. 267; Offutt

and to an assignee for the benefit of creditors.4 41 The Federal court will follow a State statute which authorizes the involuntary appointment of the sheriff as administrator and a suit in his name without his consent by a party interested in the estate. 42 It has been held that the New Jersey statute authorizing the inspection, by a stockholder, of the books of his corporation, cannot be enforced by a suit in equity; 43 and that the Federal court will not enforce the Massachusetts statute authorizing the holder of a tontine policy to maintain a bill in equity against his insurance company for an accounting.44 The Federal court in Virginia. refused to follow a State statute which gave the complainant in a creditor's bill a priority over other creditors of the same class.45 Whether a mortgagee must sue at law or in equity to recover from one who by a covenant with the mortgagor has assumed the mortgage depends upon the law of the forum, not on the law of the place where the deed and mortgage were made and the land is situated.46 When a State statute creating a new liability provides an exclusive remedy, such liability can be enforced in the Federal courts in no other manner.47 When a State statute creates a new liability and provides that it can only be enforced in a specified State tribunal, the Federal courts will enforce the liability, and reject the clause respecting the exclusive jurisdiction.48 Where, however, the suit authorized is one against the State itself, and the statute shows that the legislature contemplated that the State court alone should entertain the same, the Federal courts have no jurisdiction.49 Otherwise, the exceptions made by the State statute will be usually recog

v. King, 1 MacArthur, 312. But see Thiel Detective Service Co. v. McClure, 130 Fed. 55.

41 Closser v. Strawn, 227 Fed. 139.

42 Sheffey v. Davis Colberg Co., C. C. A., 219 Fed. 465 (W. Virginia Statute).

43 Maeder v. Buffalo Bill's Wild. West Co., 132 Fed. 280.

44 Peters v. Equitable Life Assurance Society, 149 Fed. 290.

45 Talley v. Curtain, C. C. A., 54 Fed. 43.

46 Willard v. Wood, 135 U. S. 309, 34 L. ed. 210.

47 Fourth Nat. Bank v. Francklyn, 120 U. S. 747, 30 L. ed. 825; Flour City Nat. Bank v. Wechselberg, 45 Fed. 547.

48 Davis v. James, 2 Fed. 618. Cf. Bowker v. Hill, 115 Fed. 528; Hale v. Tyler, 115 Fed. 833.

49 Chandler v. Dix, 194 U. S. 590, 48 L. ed. 1129. Infra, § 105.