Page:Federal Reporter, 1st Series, Volume 5.djvu/493

BBRRT V. GINACA. 48i �properly of equitable cognizance cannot be thus conferreà. Consent of parties cannot do it. �Hôw is it when, as here, the plaintiff alleges in connectiqa •with his legal cause of action some equitable matter, ■whieb equitable matter is not sustained by proof ? Can he hate a decree under such circumstances for the legal matter ? " Suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and com- plete remedy may be had at law." Eev. St. § 723. It is an established rule that -where a court of equity has properly acquired jurigdiction over the subject for a necessary purjtbse, it is the duty of the court to proceed, and do final and com- plete justice between the parties, where it can as well be done in that court as at law. Taylor v. Insurance Co. 9 H. 405. In that case, after requiring a specifie performance of an agreement to insure, the court went on (there having been a loss before the policy was delivered) and gave final relief on the policy. So, if a discovery is sought in aid of a claim purely legal, it may be obtained in a court of equity, which will afterwards go on and give the legal relief and determine the wbole matter in controversey. But in such case, if the answer of the defendant discloses nothing and the plaintiff supports his claim by evidence in his own possession, "the established rules limiting the jurisdiction of courts require that he should be dismissed from the court of chancery" without prejudice as to the legal cause of action. Russell v. Clark's Ex'r. 7 Cranch, 89; Story's Eq. § 74. �In the opinion of Mr. Justice Woodbury, it was the design of our fathers in that clause of the judiciary act (now section 723, Eev. St.) not to permit proceedings to go on in chancery if it turned out in the progress of the inquiry that f ull and adequate relief could be had at law. Pierpont v. Fowle, 2 W. & M. 33, 34. �In Graves v.. Boston Ins. Co. 2 Cranch, 419, it appeared that Graves had tcken an insurance in his own name upon goods belonging to the partnership, while really intending to insure for the benefit of his firm. The suit was by the part- nership to correct the alleged error in the policy, and to �v.5,no.t) — 31 ����