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Judges have never ventured to predicate as a general proposition, what constitutes Fraud (c); nor can any invariable Rule be established. Fraud is infinite; and were a Court of Equity to lay down Rules how far they would go in extending relief against it, or to define strictly the species of Evidence of it, the Jurisdiction would be cramped, and perpetually eluded by new schemes, which the fertility of Man's invention would contrive (d).

Crescit in orbe Dolus; cases cannot always be found to serve as direct Authority for subsequent cases; but if a case arises of Fraud, or presumption of Fraud, to which even no principle already established can be applied, a new principle must be established to meet the Fraud, as the principles on which former cases have been decided have been from time to time established as Fraud contrived new devices; for the possibility will always exist, that human ingenuity in contriving Fraud will go beyond any cases which have before occurred (e).

All Frauds are cognizable in one or other of the Courts of Justice. Some are of such turpitude, that the Criminal Courts only have Jurisdiction over them; for Courts of Equity do not affect to consider Fraud in the light of a crime: it is not their province to punish (ƒ); nor have they a censorial Authority (g): they interfere in cases of Fraud in a civil, and not a

(c) See Mortlock v. Buller, 10 Ves. 306, 7.

(d) See Lord Hardwicke's Letter to Lord Kaimes, 1 vol. Life of Lord Kaimes, 237; and see what is said to the same

effect, in Lawley v. Hooper,

v. Vaux, Dom. Proc. 27 Feb. 1739.

(e) Webb v. Rorke, 2 Sch. & Lefr. 666.

(f) See Waltham v. Broughton, 2 Atk. 43.

criminal point of view. The Court of Star Chamber, as before observed, not only gave the same Relief as Courts of Equity now do, in cases of Fraud, but also punished the fraudulent Defendant; and it was the ancient course of the Court of Chancery, in cases of notorious Frauds, to decree a Defendant to pay exemplary Costs; but that practice, owing to the dif ficulty of carrying it into execution, has long since been superseded (h).

Fraud has been defined to be, any kind of Artifice by which another is deceived (i); all surprise, trick, cunning, dissembling, and other unfair way that is used to cheat any one, is considered as Fraud (k). Collusion, in a Court of Equity, is considered as Fraud (1). And it is worthy of remembrance, that in all cases of Fraud, the remedy does not die with the Person, but the same relief may be obtained against the Representative of the Person committing the Fraud (m) nor can the Statute of Limitations be pleaded to a Bill for the discovery merely of a Fraud (n); length of time forming no Bar (0). "No length of time," as Lord Erskine more than once emphatically observed, can prevent the unkennelling of Fraud" (p). "The next question," says

66

(h) Waltham v. Broughton, 2 Atk. 43.

(i) See Pothier Traite des Obligations, Partie 1. chap. 1. s. 1. Art. 3. s. 3.

(k) Nels. 439.

(1) Garth v. Cotton, 3 Atk. 757.

(m) Ibid. and the decree to that effect. ibid. p. 758.

(n) Bicknell v. Gough, 3 Atk. 558.

(0) Pickering and Lord Stamford, 2 Ves. jun. 280. Gifford v. Vaux, Dom. Proc. 27 Feb. 1739.

(p) See on this subject Cottrell v. Purchase, Forrester 66, and S. C. in MS. Bacon's Tracts, p. 37. Ves. jun. 160, 328. and see Pickering v. Lord Stamford, 2 Ves. 280. Booth v. Lord Warrington, 1 Bro. C. C. 455.

Lord Northington in one case (q) "is in effect whether delay will purge a Fraud? Never, while I sit here. Every delay arising from it adds to its injustice, and multiplies the oppression." It seems, however, where the Fraud was committed a considerable time back, the Bill ought to state that, it was discovered within six years before the Bill was filed (r); or a waver of the objection, as to length of time, should appear on the face of the proceeding (s); length of time always forming a strong objection, where it can be used to show acquiescence, but in no other way. Though persons are embarrassed, and reduced by the Fraud of others, yet the Court cannot act upon such circumstanees, for then there would be an end of all limitations of actions in the cases of distressed Persons; for if relief might be given after twenty years on the ground of such distress, it might after thirty, forty, or fifty years (t). Even in a case of gross fraud, the Court will not decree an Account after a considerable length of time against Executors, Legatees, and innocent Persons, claiming under the fraudulent party (u). Fraud is a fact, and there is as much danger of evidence being lost in such case as in any other. In the case of a Steward keeping his Accounts in a fraudulent manner, it has been said,

(q) Alden v. Gregory, 2 Eden, 285.

(r) South Sea Company v. Wymondsell, 3 P. Wms. 144; see also Dougl. 630, and what is said in Gifford and Hort, 1st vol. Sch. & Lefr. Rep. 406. Hovendon v. Lord Annesley, 2 Sch. & Lefr. 634, 5. and in Medlicott v. O'Donell, 1 Ball and Beatty, 166.

(s) Picket v. Loggan, 14 Ves. 244.

(t) Hovendon v. Lord Annesley, 2 Sch. & Lefr. 639, 40.

(u) Hercy v. Dinwoody, 2 Ves. jun. 92. Doleraine v. Browne, 3 Bro. C. C. 633; Bonney v Ridgard, 1 Cox,

149.

"there can be no period, however remote, through which the Court will not look, for the purpose of setting such an Account right" (y);

A Bill will not lie by a Patron against an Incumbent to resign, where no quare impedit has been brought, nor the Bill filed till seven Months after Institution and Induction, though by misinformation and fraud the Plaintiff's consent was obtained; for the Statute (Westminster, 2. ch. 5,) makes plenarty a bar against all mankind (~).

In all cases of Fraud not penal, a Court of Equity has a concurrent Jurisdiction with Courts of Law (a), with the exception as to Fraud in obtaining a Will, which, where it relates to Real Estate, belongs to the consideration of a Court of Law (b); and if to Personal Estate, is exclusively decided upon in the Spiritual Court (c), where Parties may be examined by way of allegation touching the Fraud (d). It has often been lamented, that a Court of Equity cannot take cognizance of Fraud as to Wills of Personal Estate (e).

Although there may have been instances of Issues directed by Courts of Equity on the Bill of an Heir at Law, to set aside a Will for Fraud, where no opposition has been made to that mode of proceeding, he cannot insist on such direction. He may bring

(y) Earl of Hardwicke v. Vernon, 14 Ves. 511.

(z) Gardiner v. Cook, Mos. 18, 19.

(a) Colt v. Woolaston, 2 P. Wms. 136. Bright v. Eynon, 1 Bur. 395. 4 Inst. 84.

(b) Powis v. Andrews, 2 Bro. P. C. 476. Bates v. Graves, 2 Ves. jun. 208.

(c) Kerrick v. Barnsby, 1 Str. S. C. 7 Bro. P. C. 449. Toml. Edit.; and see Archer v. Mosse, 2 Vern. 8.

(d) Stephenson v. Gardener, 2 P. Wms. 286.

(e) Ex parte Fearon, 5 Ves

647.

his Ejectment; and if there be any impediments to the proper Trial of the merits, he may come into Equity to have them removed; but he has no right to have an Issue substituted in the place of an Ejectment (f): but where a Will is sought to be set aside for Fraud, and there are outstanding terms, admitted by the answer, an Issue will be directed to try the validity of the Will; nor is it necessary that there should be evidence as to the Fraud in obtaining the Will (g).

Every question concerning the execution and validity of a Will under which any legal or equitable Estate in Land is claimed, is properly and only triable at Law; nor do Courts of Equity establish a Will by which a Trust only is devised, without a Trial, if desired. The Court will not, in any case, set aside a Will, without directing an Issue (h).

If, therefore, a Bill be filed to set aside a Will for Fraud, and for a Receiver, the Defendant may plead that the Will was duly executed, and that it ought to prevail, till upon an Issue at Law it should be found to be otherwise: but the Plea cannot be extended to the Receiver, for the Court will not suffer its hands to be tied up, if in the progress of the Cause it should be necessary to appoint a Receiver (i).

Though a Will of personal Estate proved in the Spiritual Court, cannot, though obtained by Fraud, be controverted in Equity, yet if a Party claiming

(f) Jones v, Jones, 3 Meriv. 171. (g) Shewin v. Lewis, mentioned in note, Jones v. Jones, 3 Meriv. 167.

(h) Bates v. Graves, 2 Ves. jun. p. 288.

(i) Anon. 3 Atk. 17.

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