LEWIS
v.
COCKS.
Supreme Court of United States.
*468 Mr. P. Phillips, for the appellant.
Mr. Conway Robinson, contra.
*469 Mr. Justice SWAYNE delivered the opinion of the court.
The question of the validity of the Provisional Court is not an open one. We have held it valid upon more than one occasion when the question has been before us.[*]
The fraud charged upon Izard is expressly denied by his answer and is not sustained by the evidence. There is a decided preponderance against it. We are unanimous upon the point. It could serve no useful purpose to examine the proofs in detail in order to vindicate our judgment. Nothing further need be said upon the subject.
The remaining part of the case is that which relates to the allegations of the non-service of process.
In considering the bill, we must regard it as being just as it would be if it contained nothing but what relates to this subject. Everything else must be laid out of view. It must be borne in mind that the complainant is not in possession of the property.
If the bill alleged only the nullity of the judgment, under which the premises were sold, by reason of the non-service of the original process in the suit, wherefore the defendant had no day in court, and judgment was rendered against him by default, and upon those grounds had asked a court of equity to pronounce the sale void, and to take the possession of the property from Izard and give it to the complainant, could such a bill be sustained? Such is the case in hand. There is nothing further left of it, and there is nothing else before us. Viewed in this light, it seems to us to be an action of ejectment in the form of a bill in chancery. According to the bill, excluding what relates to the alleged fraud, there is a plain and adequate remedy at law, and the case is one peculiarly of the character where, for that reason, a court of equity will not interpose. This principle in the English equity jurisprudence is as old as the earliest period in its recorded history.[]
*470 The sixteenth section of the Judiciary Act of 1789,[*] enacting "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," is merely declaratory and made no change in the pre-existing law.
To bar equitable relief the legal remedy must be equally effectual with the equitable remedy, as to all the rights of the complainant. Where the remedy at law is not "as practical and efficient to the ends of justice and its prompt administration," the aid of equity may be invoked, but if, on the other hand, "it is plain, adequate, and complete" it must be pursued.[]
In the present case the objection was not made by demurrer, plea, or answer, nor was it suggested by counsel, nevertheless if it clearly exists it is the duty of the court suâ sponte to recognize it and give it effect.[]
It is the universal practice of courts of equity to dismiss the bill if it be grounded upon a merely legal title. In such case the adverse party has a constitutional right to a trial by jury.[§]
Where the complainant had recovered a judgment at law and execution had issued and been levied upon personal property, and the claimant, under a deed of trust, had replevied the property from the hands of the marshal, and the judgment creditor filed his bill praying that the property might be sold for the satisfaction of his judgment, this court held that there was a plain remedy at law; that the marshal might have sued in trespass, or have applied to the Circuit Court for an attachment, and that the bill must therefore be dismissed.[]
In the present case the bill seeks to enforce "a merely legal title." An action of ejectment is an adequate remedy. *471 The questions touching the service of the process can be better tried at law than in equity. If it be desired to have any rulings of the court below brought to this court for review, they can be better presented by bills of exception and a writ of error than by depositions and other testimony and an appeal in equity.
There is another important point, which we have not overlooked. It is whether the judgment of the Provisional Court can be pronounced a nullity without the legal representative of Anderson, the deceased plaintiff, being before the court as a party. As the first objection is a fatal one we have not considered that question.
DECREE REVERSED, and the case remanded with directions
TO DISMISS THE BILL.
NOTES
[*] The Grapeshot, 9 Wallace, 129.
[] Spence's Jurisdiction of Courts of Chancery, 408, note b; Id. 420, note a.
[*] 1 Stat. at Large, 82.
[] Boyce v. Grundy, 3 Peters, 215.
[] Hipp et al. v. Babin et al., 19 Howard, 278; Baker v. Biddle, Baldwin, 416.
[§] Hipp et al. v. Babin et al., 19 Howard, 278.
[] Knox et al. v. Smith et al., 4 Howard, 298.