would be sufficient, does not seem to have been determined by any clear concurrence of decision.

The question may depend somewhat upon the nature of the corporate organization, and the extent of powers confided to its officers for the time being. Where the stockholders retain no control of the corporate business except by means of an annual election of officers, those officers, during their term of service, represent the corporation for all purposes; and a refusal by them to take proper action for the protection of its interests, or to allow the use of the corporate name for that purpose, ought to be sufficient to justify a proceeding in behalf of the individual stockholders, making the corporation a party defendant. A formal application and refusal need not be alleged, if enough appear to show that such an application would be unavailing. Where the directors themselves are the parties charged with the wrong, or by whose fraud or collusion the wrong has been accomplished, and the suit is to be brought against them, they are by the very nature of the case incapacitated for the service of representing the corporation in any action for the restoration of its rights, whether by suit or by proceedings in pais. If the corporate action is under the control of such parties, it is sufficient reason to warrant proceedings by suit in the name and behalf of the individual stockholders.1

In accordance with these principles, laid down in the case cited, it was there held that a bill for the purpose above indicated, which did not allege that any effort had been made to set the corporation in motion for the purpose of securing its own redress, or that any application had been made to the directors to take action in the matter, could not be maintained, if the bill did not clearly show that such effort or application would be unavailing.

It does not follow that because there may be a remedy at law there may not also be a remedy in equity. The whole 1 Mr. Justice Wells, in Brewer v. Boston Theatre, 104 Mass. 378.

subject of fraud indeed is a matter of the concurrent jurisdiction, for fraud was from the earliest times a head of equity, and it is only within comparatively recent times that courts of law have succeeded in establishing their jurisdiction. In doing so they have not supplanted courts of equity; and wherever there is a jurisdiction at law and in equity, the jurisdiction is concurrent, though a law court may not be able in a particular case to afford an adequate remedy.2

A party may then have a remedy in equity in a case within the concurrent jurisdiction of that court, though he might find another very good remedy at law; almost the only exception being the case of a mere suit for damages already mentioned. A single example will now suffice, for others have already been given. Thus Lord Justice Turner has said, in the case of a bill in equity by a principal against his agent: 'It is not denied . . . that there would be a remedy at law against J. S. and his estate in respect of this breach of duty, but . . . there is at least concurrent jurisdiction in equity in case of fraud by an agent upon his principal, and certainly I am not prepared to agree to the doctrine that where two agents concur in a fraud, and one of them only derives a benefit from the fraud, the other is not liable in equity for the benefit so derived.' 3

Notwithstanding the fact however that courts of equity generally have concurrent jurisdiction over fraud with courts of law, a determination at law of a question of fraud will conclude a re-examination of the same matter in equity, except where the complaining party was under some disability which prevented him from bringing his case fully and fairly before the court of law.4

Indeed though courts of equity and courts of law have a concurrent jurisdiction in cases of fraud, still if a suit be first brought in a court of law, in which, upon the issues,

11 Story, Equity, p. 30, note, 13th ed. 2 See 1 Fonblanque, Equity, ch. 1, § 3, note f.

8 Walsham v. Stainton, 1 De G. J. &

S. 678.

4 Smith v. McIver, 9 Wheat. 532.

the question of fraud should be tried and determined, the party injured by the fraud must make his defence there; and if he neglect to do so, equity has no jurisdiction to relieve him.1 But this rule is probably to be understood of cases in which the defrauded party was bound to show the fraud in the action at law. It can hardly be true of cases in which such party is entitled to bring a cross suit.2

Equity will entertain a bill to set aside an order of court obtained for a fraudulent purpose, and a sale made thereunder, notwithstanding the fact that the plaintiff might have accomplished the same object by mere motion in the court which granted the order, if it be not clear that the rights of the parties could be so well protected and disposed of under a motion. But where a full, adequate, and perfect remedy is attainable by motion, as in respect of orders fraudulently obtained for foreclosure sales, an independent proceeding is not allowed.3

Further in any case of fraud if the injured party is entitled to go into equity for relief in regard to any matter arising out of the contract or transaction in which he has been defrauded, he may there obtain full relief without resorting to a court of law. Equity having entertained jurisdiction as to part of the case will entertain jurisdiction as to the whole, and give final relief to the injured party.5

Again an important distinction between jurisdiction at common law and in equity may be noticed in the case of the rights of a purchaser whose title has been overturned because

1 Haden v. Garden, 7 Leigh, 157. 2 See Bigelow, Estoppel, 107, 138, 175, 4th ed.

Hackley v. Draper, 60 N. Y. 88, overruling a dictum in Libby v. Rosekrans, 55 Barb. 202, 219; Brown v. Frost, 10 Paige, 243; American Ins. Co. v. Oakley, 9 Paige, 259; McCotter v. Jay, 30 N. Y. 80; Gould v. Mortimer, 26 How. Pr. 167.

4 As distinguished from discovery. As to that see 1 Story, Equity, p. 78, note, 13th ed.

5 Bradley v. Bosley, 1 Barb. Ch. 125. See 1 Story, Equity, p. 30, note, 13th ed.

6 What is here, and elsewhere, said about jurisdiction at law must be understood of the common law; special statutory modifications cannot be considered in a work like the present.

of fraud upon the creditors of the vendor, to which he is shown to have been privy. If the fraud be established in a suit at law, no relief can be given the purchaser; he must lose the property regardless of the amount, or of the application, of the money which he has paid or laid out. Indeed no relief will be given to him in equity afterwards. But if the proceeding against him is in equity, a more flexible and tolerant jurisdiction may be exercised. In the case just cited Mr. Justice Swayne, for the court, declares in regard to a purchase alleged to be in fraud of creditors, that while equity will scan with severest scrutiny the transaction, it will at the same time look at all the facts, and, giving to each its due weight, deal with the subject according to its own rules of right and justice. In some instances it visits the buyer with the same consequences which would have followed in an action at law. In others it allows a security to stand for the amount advanced upon it. In others it compels the buyer to account for the difference between the under price which he paid and the value of the property. In others, although he may have paid the full value, and the property may have passed beyond the reach of the process of the court, it regards him as a trustee, and charges him accordingly. Where he has honestly applied the property to the liabilities of the seller, it may hold him. excused from further responsibility.' 3

The purchaser's rights in such cases will, it seems, often turn upon the nature, and perhaps upon the extent, of the fraud to which he has been found a party. If instead of being merely in privity with the vendor, as by mere notice of the intent of the latter (and that would not be enough in some states to overturn his title 4), he should have actively participated in the scheme of fraud, his claims would be looked upon

1 Clements v. Nicholson, 6 Wall. 299, Swayne, J.

2 See e. g. Guerrant v. Fowler, 1 Hen. & Munf. 5, a case of rescission.

3 Swayne, J. in Clements v. Nicholson, supra.

Hill v. Ahern, 135 Mass. 158.

with scant favor in equity, even if not wholly disallowed.1 Indeed a similar doctrine has been applied to cases of rescission by a vendor of land against a defrauding purchaser; 2 the deed e. g. need not stand, it is held, as a security for the repayment of the money paid by the purchaser, a doctrine however not free from objection. Rescission inter partes is a different thing from the proceeding of a creditor to set aside a conveyance.

Finally it is often said that equity supplements the law; it supplies its deficiencies, and mitigates its rigor. It would be more accurate to say that equity supplements that branch of the law which is administered in the common-law courts; for that is but part and equity is the other part of the unwritten law, and being part equity cannot supplement the whole. It only makes out what is wanting from the other part. This is a matter that deserves emphasis; for it shows that equity is in no way superior in authority to that which it supplements. Each is a part of the same common law.

It follows that equity can exert no authority over the courts of law. The books constantly speak of equity's 'setting aside' judgments at law. Like the term 'void,' the expression is only conventional; it is convenient, and must therefore be used. But it has well been pointed out that in reality equity

1 Sands v. Codwise, 4 Johns. 536, in error; Weeden v. Hawes, 10 Conn. 50; Forniquet v. Forstall, 34 Miss. 87.

2 McCaskey v. Graff, 23 Penn. St. 321; Gilbert v. Hoffman, 2 Watts, 66.

8 McCaskey v. Graff, supra.

Further see chapter on Rescission, § 5, Tender.

5 'It is often said to have been one of the functions of the chancellor to set aside, for fraud or other sufficient cause, judgments, awards, accounts stated, conveyances, and contracts; but this is

an incorrect use of language. If a judg ment had been obtained by fraud, he would enjoin the judgment creditor from enforcing it; if an award or an account stated was infected with fraud, he would not permit it to be used against the defrauded party ..; if a conveyance of property was obtained by fraud, he would compel a reconveyance of it; if a written instrument purporting to constitute a contract was infected with fraud, he would in a proper case require it to be delivered up and cancelled; but he never did nor could set anything