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find fraud upon less proof or different proof from that which is required in courts of law, we at once establish a ground of preference between the two jurisdictions which was never before claimed [?], and one of a very invidious character in its practical operation. We trust that no one will be drawn into the adoption of any such view upon the subject, since the general course of opinion and practice is now decidedly in the opposite direction." (Redfield's ed. of Story, c. 190 a.)

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I think the matter may be fairly summed up so. Under the strict rules of evidence, etc., and forms of action at common law, it was often difficult or impossible to make out fraud, where it appeared incidentally, and not as the direct issue of the case. This was particularly true of constructive fraud, e. g., a deed from client to attorney, etc. In equity this could always be reached without violating any technical rule. But now, with our liberal rules of practice and evidence, and the habit of pleading at large on the whole case sanctioned by the codes, we may express the present rule in the very words used by Lord Mansfield one hundred and thirty-three years ago, however inaccurate they may have been in his time, or for a long while after him: "Courts of equity and courts of law have a concurrent jurisdiction to suppress and relieve against fraud; but the interposition of the former is often necessary for the better investigating truth, and to give more complete redress." (1 Burr. 396.)

The

Law and equity both have jurisdiction of fraud. difference, generally speaking, is that when fraud is the immediate ground of an action, brought to recover damages produced by the fraud as an injury, the jurisdiction is at law, and the case is governed by the usual rules applying to a tort. But when the fraud is indirectly connected with the cause of action, and the right of recovery has been in some way prevented or embarrassed by fraudulent acts on the part of the de

fendant, it will be necessary to appeal to equity. Consequently, in almost all equity cases founded upon fraud, it will be found that some equitable remedy is also invoked, or some equitable interest involved, beside the fraud in the subject-matter which brings the case within the class of equitable causes.

(73) As if they should make the standard for the measure a chancellor's foot, page 432, note 4.

This famous comparison, repeated so frequently in the last hundred years, loses much of its force and propriety when it is quoted without the passage of West's Symboleography, which first suggested it and gave it

point:

"Since law and equitie differ herein that strict law doth set downe in a general sort what it enacteth, and is severe and not to be moved one way or other: it taketh order for things once for all; the grounds and principles which it bringeth forth are universall and full of severitie and sharpenesse, from which rules it will not starte aside, no not the breadth of an haire.

"But equitie is fitly compared to a Shoemaker's shop, that is well furnished with all sorts and maner of lastes for men's feete, where each man may be sure to finde one last or other that shall fit him, be he great or smal. It is not also unfitly compared to an Apothecaries shop, stored with all kind of drugs, fit for all the maladies and disseases of men." The second part of the Symboleography, fol. 175, ? 11 (ed. 1618).

Notice, also, that Selden ingeniously wrests the meaning of the figure to make equity depend on the chancellor's conscience, and the length of the chancellor's foot. The original figure measures men's cases by their own feet, not by the chancellor's; each suitor requiring a different judgment adapted to his case, as well as a shoe fitted to his individual foot. The court of conscience was so called, not because it decided cases

by the chancellor's conscience (which would be a sorry compliment to the courts of common law), but because it measured the conscience of each party, and decided by that. (See as to this note 77, page 611.)

That such a jurisdiction must always depend in its exercise upon the judge's conscience also, is no doubt true: that has been a reproach against all kinds of equity always. But for that reason there would have been neither wit nor a slur upon this court in particular, in saying that.

(74) The payment of principal, interest, and costs ought at any time before judgment executed to have saved the forfeiture, page 435.

Blackstone, who has been so often abused as a blind defender of legal precedents, seems to me really to have been open rather to the opposite reproach, of failing to see the logical necessity of rules that could not be abrogated without making the law inconsistent. Like most of his contemporaries, he was ever ready to sacrifice the historical basis of the law to the frigid common sense of the eighteenth century.

So long as the mortgage was a conveyance upon condition, as he treated it (Book 2, ch. 10), and as it remained long after his time, how could a court of law have held that the conveyance was defeated, not by the happening of the condition at the law-day, but by its performance whenever the grantee chose, though long after the day fixed in the deed? Or should the courts of law, for consistency's sake, have held that all other like conditions should remain pendent until the party bound found it convenient to perform?

Even to this day, and in spite of the statutes mentioned, it may be doubted whether all the hardships which would have been caused by rigid adherence to the ancient rule, have not been outweighed by the uncertainty and useless litigation produced by the great variety of inconsistent rulings in different states, that

have resulted from the modification of legal principles by equitable considerations.

(75) Neither a court of equity nor of law can vary men's wills or agreements, page 435.

"There are early cases in which the court of chancery took upon itself to set aside wills both of lands and personalty, not only for fraud but for other causes, and even because wills had not been, as the judge thought, properly made, though there had been no fraud: those cases, however, have long since been overruled. It was established by the cases of Archer v. Mosse, 2 Vern. 8; Nelson v. Oldfield, 2 Vern. 76; Plume v. Beale, 1 P. Wms. 388; and above all by Kerrich v. Bransby, 7 Brown Parl. C. 358; that the court of chancery had no authority to set aside a will of personalty, and no authority to set aside a will of land without a trial at law." (Per Lord Langdale, 1 H. of L. p. 228.)

The court of chancery has however in some cases declared the party who took a legal estate under a will to be a trustee for others, whom he has defrauded. Thus in Bulkley v. Wilford, 2 Clark & F. 177, an attorney who was himself the heir at law, caused a fine to be levied which had the effect of revoking the will, without informing the testator of that consequence of his act : and it was held to be a case in which the court of chancery might properly declare the heir at law a trustee for the devisee who had been defrauded. In Rex v. Marriot, 1 Strange, 666; Gilb. Cas. in Chancery, 203, Ch. B. Gilbert says: "The court of chancery may declare a legatee who has obtained a legacy by fraud to be a trustee for another; as if the drawer of a will should insert his own name instead of the name of a legatee." (Barmerly v. Powell, 1 Ves. Sr. 284.) Lord Hardwicke by his power as chancellor compelled the party claiming under a forged will to consent to the reversal of the probate in the ecclesiastical court.

(See, also, Allen v. McPherson, 1 Phill. 133; 5 Beav. 469; 1 H. of L. 191.)

It is a rule of equity as well as of law that the words of a will cannot be enlarged, varied, or contradicted, or its intention explained by means of parol evidence as to the intention of testator, except in two cases: that of a latent ambiguity, arising outside of the will, as to the person or subject meant to be described: and that of a resulting trust. (Story, ? 179; 1 Redfield on Wills, 497, 5; Fry v. Porter, 1 Mod. 310; Cheney's Case, 5 Coke, 68; Newburgh v. Newburgh, 5 Madd. 223; Mann v. Ex'rs of Mann, 1 Johns. Ch. 231; Judy v. Williams, 2 Ind. 449.)

It has repeatedly been held that even where the will misdescribed a particular piece of property (as by giving wrong numbers, etc., of a section of land) evidence is not allowed to show that the testator had no such land, and intended to convey another tract which could be identified by parol proof. (Fitzpatrick v. Fitzpatrick, 36 Iowa, 674; Kurtz v. Hibner, 55 Ill. 514; Am. Law Reg. Feb. 1871, Oct. 1872; Chic. Legal News, Mar. 18, 1871.) Both these decisions have been much criticised, and as there is no doubt or ambiguity in the intent of the will until evidence is given of the discrepancy between this and the true description, it may well be brought within the rule as to latent ambiguities, as is done in Patch v. White, 117 U. S. 210 (1886). (See note 74 to Book 2, page 584.)

(76) A court of equity applies itself to his conscience, page 437.

"Conscience 99 was so long the accepted designation for what we now call "equity" (cf. note 71, page 598), that it is worth while to inquire in what sense the word was taken, when applied to the chancellor's extraordinary power. Did it signify that the chancellor's decrees had power over men's conscience only? Certainly not:

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