It was inapplicable in cases where the defendant had not actually been served with the subpoena, and therefore could not be treated as in contempt, until the statute 5 Geo. II. c. 25. (As to which, see text, page 445.)

Upon this same notion of the necessity of an answer by the defendant, before a decree could be made against him, the entire doctrine of the plea and demurrer in equity was based. They had little resemblance of office to the forms of pleading known in the common law by the same names, until at a late day the names led such resemblance to be traced between them. Originally they were not pleadings performing a like office with the answer, but only objections to the demand of an answer. They defeated the bill, not by their own force, but by the excuse they gave for not answering; since without an answer there could be no decree.

The history of some doctrines of equity, such as the protection of innocent purchasers, is almost unintelligible without this. Compare the account of that doctrine in Prof. Langdell's Equity Pleading, ch. 7, ¿? 139– 151, where it is correctly appreciated, with the same topic as treated by Mr. Lubé, who has based his whole work on equity pleading upon the assumption that its logic was the same with that of the common law. (See part II. ch. 4, 2 2, esp. par. 306.)

(80) For want of sufficient matter of equity therein contained, page 446.

In the judiciary act of 1789, by which the first Congress established the judicial courts of the United States and defined their jurisdiction, it is enacted that "suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate, and complete remedy may be had at law." (Act of September 24, 1789, ch. 20, ? 16, 1 Stat. 82; Rev.

Stats. 723.) Five days later, on September 29, 1789, the same Congress proposed to the legislatures of the several states the article afterwards ratified as the seventh amendment of the constitution, which declares that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." (1 Stat. 21, 98.)

The effect of the provision of the judiciary act, as often stated by the courts, is that "whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury." (Hipp v. Babin, 19 How. 271, 278; Insurance Co. v. Bailey, 13 Wall. 616, 621; Grand Chute v. Winegar, 15 Wall. 373, 375; Lewis v. Cocks, 23 Wall. 466, 470; Root v. Railway Co. 105 U. S. 189, 212; Killian v. Ebbinghaus, 110 U. S. 568, 573; New York Guaranty Co. v. Memphis Water Co. 107 U. S. 205, 214.)

Accordingly, a suit in equity to enforce a legal right can be brought only when the court can give more complete and effectual relief, in kind or in degree, on the equity side than on the common-law side; as, for instance, by compelling a specific performance, or the removal of a cloud on the title to real estate; or preventing an injury for which damages are not recoverable at law, as in Watson v. Sutherland, 5 Wall. 74; or where an agreement procured by fraud is of a continuing nature, and its rescission will prevent a multiplicity of suits, as in Boyce v. Grundy, 3 Peters, 210, 215, and in Jones v. Bolles, 9 Wall. 364, 369.

In cases of fraud or mistake, as under any other head of chancery jurisdiction, a court of the United States will not sustain a bill in equity to obtain only a decree for the payment of money by way of damages, when the like amount can be recovered at law in an action

sounding in tort, or for money had and received. (Parkersburg v. Brown, 106 U. S. 487, 500; Ambler v. Choteau, 107 U. S. 586; Litchfield v. Ballou, 114 U. S. 190)