brought.17 Except in an extraordinary case this doctrine will not defeat a suit to enjoin the infringement of a patent because the complainant denies the public the right to use the invention which it protects, 18 nor of a patent 19 or trademark 20 because complainant uses the same in such a manner as to restrain trade in interstate commerce. In the Second Circuit, because of infringement by the plaintiff of the copyright to a previous edition of the defendant's book, or of a later edition of which complaint is made, or an unlawful importation into the United States of another edition of the same book is no defense.21 It has been held: that it does not apply to a case where, subsequent to suit brought, the complainant has been guilty of reprehensible conduct, which does not affect the cause of action,22 and that plaintiff might recover at common law when he repudiated a contract to commit a fraud upon strangers and sued to recover the money he had paid thereunder, on the ground that he had been induced to enter into the same by fraud, since he was not in pari delicto with the defendant.23 It is no defense to a contract which has been performed by the promisee, that the promisor knew that the performance of the agreement might aid the former to violate public policy, when the two parties did not conspire to accomplish that result, nor share in the benefits. of such a violation.24

The doctrine does not apply to a defendant who does not seek affirmative relief.25 "A man by committing a fraud does not become an outlaw and caput lupinum." 26 "He may have no

17 Oscar Barnett Foundry Co. v. Crowe, C. C. A., 219 Fed. 450.

18 Continental Paper Bag Co. v. Eastern Paper Bag Co. (Paper Bag Patent Case), 210 U. S. 405, 430, 52 L. ed. 1122, 1133; Henry v. A. B. Dick Co., 224 U. S. 1, 56 L. ed. 645.

19 O. & W. Thum Co. v. Dickinson, C. C. A., 245 Fed. 609.

20 S. E. Hendricks Co. v. Thomas Pub. Co., C. C. A., 242 Fed. 37, 40.

21 Bentley v. Tibbals, C. C. A., 223 Fed. 247, 253. But see T. B. Harms & Francis Day & Hunter v. Stern.

22 Chute V. Wisconsin Chemical Co., 185 Fed. 115.

23 Stewart v. Wright, C. C. A., 147 Fed. 321.

24 Mechanics' Ins. Co. v. Hoover Distilling Co., C. C. A., 31 L.R.A. (N.S.) 873, 182 Fed. 590.

25 Armour & Co. v. Renaker, 191 Fed. 48; Reid v. Shaffer, C. C. A., 249 Fed. 553; Barnett Foundry Co. v. Crowe, C. C. A., 219 Fed. 450.

26 Stoffela v. Nugent, 217 U. S. 499, 501, 54 L. ed. 856, 858, per Holmes, J.

standing to rescind his transaction, but when it is rescinded by one who has the right to do so the courts will endeavor to do substantial justice so far as is consistent with adherence to law." 27

§ 80. The distinction between law and equity in the Federal courts. The fact that those who framed the Constitution thought it necessary to mention law and equity separately, when blocking out the jurisdiction of the Federal courts, has caused some judges to think, and even to say in their opinions, that it was thereby intended that these branches of the law should always be kept apart. The better opinion, however, seems to be that this distinction between law and equity is enforced by the Constitution only to the extent to which the Seventh Amendment forbids any infringement of the right of trial by jury, as fixed by the common law. The Equity Rules of 1912 provide : "If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be there proceeded with, with only such alteration in the pleadings as shall be essential." "If in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the principles applicable without sending the case or question to the law side of the court." 4

The Act of March 3, 1915, provides: "In case any of said courts," any Territorial District, or Circuit Court, or the Court of Claims of the Supreme Court of the United States, "shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendments to the pleadings which may be necessary to conform them to the proper practice. Any party to the

27 Ibid. $ 80. 1 Parsons V. Bedford, 3 Pet. 433, 7 L. ed. 732; Bennett v. Butterworth, 11 How. 669, 674, 13 L. ed. 859; 861; Hipp v. Babin, 19 How. 271, at p. 277, 15 L. ed. 633, 634; Fenn v. Holme, 21 How. 481, 486; Costs in Civil Cases, 1 Blatchf. C. C. 652, 654; Butler v. Young, 1 Flip. 276, 278; Meade v. Beale, Taney, 339, at p. 361; Thompson

v. Railroad Cos., 6 Wall. 134, 18 L. ed. 765; Reubens v. Joel, 13 N. Y. 488, p. 497. A similar remark is contained in the message of President Taft on Dec. 7th, 1909.

2 Mr. Justice Matthews in Root v. Railway Co., 105 U. S. 189, 206, 26 L. ed. 975, 981. Cf. Ex parte Boyd, 105 U. S. 647, 26 L. ed. 1200. 3 Eq. Rule 22.

4 Eq. Rule 23.

suit shall have the right, at any stage of the cause, to amend his pleadings so as to obviate the objection that his suit was not brought on the right side of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken before such amendments, if preserved, shall stand as testimony in the cause with like effect as if the pleadings had been originally in the amended form."5

In all actions at law, equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer or plea. In case affirmative relief is prayed in such answer or plea, the plaintiff shall file a replication. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review be sought by writ of error or appeal the appellate court shall have full power to render such judgment upon the records as law and justice shall require."6

Previously, it had been held that, where, in a suit for a partition, the defendant denied the title of complainant and pleaded sole seisin in himself, an issue was raised triable only at law, and that the suit in equity must be stayed to permit the plaintiff to bring an action at law for that purpose.7

§ 81. General rules affecting the jurisdiction in equity of the Federal courts. The jurisdiction in equity of the Federal courts is, subject to the limitations of the Constitution, substantially the same as that of the English Court of Chancery in 1787, when the Federal Constitution was adopted; although, in the absence of special statutory authority, they do not have those extrajudicial powers which were exercised over the persons and

538 St. at L. 956, Comp. St. § 1251a.

6 38 St. at L. 956, Comp. St. § 1251a.

7 Gilbert v. Hopkins, 171 Fed. 70. § 81. 1 Robinson v. Campbell, 3 Wheat, 212, at p. 221, 4 L. ed. 372, 375; Fenn v. Holme, 21 How. 481, Fed. Prac. Vol. I-36

at p. 484, 16 L. ed. 198, 199; Meade v. Beale, Taney, 339, at p. 361; Gordon v. Hobart, 2 Sumn. 401, at p. 405; Fletcher v. Morey, 2 Story, 555, at p. 567; Root v. Railway Co., 105 U. S. 189, at p. 207, 26 L. ed. 975, 981.

estates of infants, idiots, lunatics, and charities by the Lord Chancellor, as the representative of the sovereign and by virtue of the latter's prerogative as parens patria.2 "The rule being that this equity power must be construed according to equity jurisdiction in England as exercised at the time of the adoption of the Constitution and of the judiciary act, any jurisdiction exercised by that court in its earlier history, but subsequently abandoned, and any enlargement of its jurisdiction by statute subsequent to 1789 are to be excluded." 3 The District courts of the United States, when sitting in equity, have the powers that were exercised in probate matters by the English Court of Chancery; provided that they do not interfere with the jurisdiction of the State courts in matters before them.4 The distinction between law and equity as recognized in the jurisprudence of England is to be observed in the courts of the United States, in administering the remedy for an existing right. But it does not follow that every right given by the English law, and which at the time the Constitution was adopted might have been enforced in the Court of Chancery, can also be enforced in a court of the United States. The right must be given by the law of the State or of the United States.5

The Judicial Code provides that: "Suits in equity shall not be sustained in either of the courts of the United States in any case

3 Alger v. Anderson, 92 Fed. 696; Fontain v. Ravenel, 17 How. 369, 394, 395, 15 L. ed. 80, 90, 91; per Taney, C. J. "The grant of power cannot be enlarged by resorting to a jurisdiction which the Court of Chancery in England, centuries ago, may have claimed as a part of its ordinary judicial power, but which had been abandoned and repudiated as untenable on that ground, by the court itself, long before the Constitution was adopted."

4 Johnson v. Johnson, 225 Fed. 413, supra, $ 54.

5 Taney, C. J., in Meade v. Beale, 339, 361.

where a plain, adequate, and complete remedy may be had at law." The Supreme Court has construed a previous statute in the same words substantially as follows: The effect of this provision 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. "It would be difficult, and perhaps impossible, to state any general rule which would determine in all cases, what should be deemed a suit in equity as distinguished from an action at law, for particular elements may enter into consideration which would take the matter from one court to the other; but this may be said, that, where an action is simply for the recovery and possession of specific real or personal property, or for the recovery of a money judgment, the action is one at law. An action for the recovery of real property, including damages for withholding it, has always been of that class." "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." "By inadequacy of the remedy at

6 Jud. Code, § 267, 36 St. at L. 1087, re-enacting U. S. R. S., 723.

7 Hipp v. Babin, 19 How. 271, 15 L. ed. 633; Insurance Co. v. Bailey, 13 Wall. 616, 621, 20 L. ed. 501, 503; Grand Chute v. Winegar, 15 Wall. 373, 375, 21 L. ed. 174, 175; Lewis v. Cocks, 23 Wall. 466, 470, 23 L. ed. 70, 71; Root v. Railway Co., 105 U. S. 189, 212, 26 L. ed. 975, 983; Killian v. Ebbinghaus, 110 U. S. 568, 573, 28 L. ed. 246; N. Y. Guaranty Co. v. Memphis Water Co., 107 U. S. 205, 214, 27

L. ed. 484, 487, per Bradley, J.: "This enactment certainly means something; and if only declaratory of what was always the law, it must, at least, have been intended to emphasize the rule, and to impress it upon the attention of the courts.

8 Whitehead v. Shattuck, 138 U. S. 146, 151, 34 L. ed. 873, 874, per Field, J.

9 Buzard v. Houston, 119 U. S. 347, 351, 352, 30 L. ed. 451, 452, 453, per Gray, J.