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4 Mercer Beasley L. Rev. 74 (1935)
The Theory of Equitable Jurisdiction over Fraud

handle is hein.journals/mblr4 and id is 80 raw text is: NOTES THE THEORY OF EQUITABLE JURISDICTION OVER FRAUD.-What is the true basis of the exercise of equity jurisdiction in fraud cases when challenged by the defendant's plea of an adequate remedy at law is a much vexed problem in this country. As Pomeroy' pointed out, the American problem is particularly perplexing in that the conclusions reached respecting exercise of jurisdiction in the various equity tri- bunals, depend to a large extent upon .the various courts' interpreta- tions of the limits of their respective equity jurisdictions generally.2 What part fraud cases play in the exercise of that equity jurisdiction accordingly presents a problem within a problem. The theory under which the English equity courts exercise juris- diction in fraud cases is the least confusing. They proceed upon the hypothesis that equity jurisdiction exists in and may be extended over every case of fraud3 (except wills), whether the primary rights of '2 POMEROY'S EQUITY JURISPRUDENCE (4th Ed.) sec. 910, 911, 912, 914, wherein the author exhaustively collates the English and American authorities on equity jurisprudence in fraud cases. It is impossible, especially in the United States, to formulate any universal rules concerning the extent of the exercise of the equitable jurisdiction in matters of fraud, since the decisions of different courts and in different states are directly at variance with respect to its existence and extent, and since its exercise must depend to a'great extent upon the circumstances of particular cases, and even upon the temperaments and opinions of individual judges. 2 PoM. EQ. JuR. (4th ed.) sec. 910. See Ada County v. Bullen Bridge Co., 5 Idaho 188, 36 L.R.A. 367, 47 Pac. 818. In Slim v. Crowcher, 1 De Gex. F. & J. 518, 45 Eng. Rep. 462 (1860) (an action for fraud in equity for simple pecuniary damages), Knight Bruce's separate opinion was to the effect that (p. 527): On the merits of this case there can be no possibility of question. The only point reasonably arguable was, in which of the courts redress should be sought, and it has been said that redress should be sought in a court of law. It is true that according to modern practice a court of law would afford redress in the case by means of an action,, with the assistance of a jury; but the courts of law in this country exercise juris- diction in these cases by means of a gradual extension of their powers, and we know that that does not deprive the courts of equity of their ancient and undoubted jurisdiction which they exercised before courts of law enlarged their limits. The observation is familiar-and some of us have heard it used by Lord Eldon-that the jurisdiction not only belongs to this court, but belonged to it originally. I do not mean to say that in all cases the court will exercise the jurisdiction. It is in the power of the court to say that it will not do so in particular cases, but I am perfectly satisfied that this is a case in which the jurisdiction ought to be exercised. Turner, L. J., said (p. 528): If we were to grant any relief upon this appeal, we should be very much narrowing an old jurisdiction of this court, by confining it to cases in which the jurisdiction has been exercised. We should, I think, be taking the cases as the measure of the jurisdiction, instead of as the examples of that jurisdiction. Compare the observation of Lord Elton in Evans v. Bicknell, 6 Ves. Jr. 174, 31 Eng. Rep. 998 (1801): It is a very old head of equity, that if a representa- tion is made to another person, going to deal in a matter of interest upon the faith of that representation, the former shall make that representation good, if

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