never does and never can set aside a judgment rendered by another court; all that it does is to restrain the successful party from taking advantage of his judgment. And this is not because equity is superior in authority, but merely because it is supplementing that part of the common law which the machinery of the law court is not equal to. Hence, and on this ground only, it is truly said that equity will not abrogate a right at law, though in a proper case it may prevent the unjust assertion of such right. But statute is supreme; it is only when the statute is silent and so permissive, that the one court can supplement the other, and a law court may and does often supplement a court of equity. When the statute however speaks, in general terms, and says that such and such a thing may be done, and nothing else, a court of equity is bound as much as a court of law, a fact sometimes overlooked, especially in cases of fraud; and the occasional overlooking of that fact furnishes the reason for emphasizing a principle of great importance. aside by his decree.' Langdell, Equity Pl., p. 37, note, 2d ed. — 1 Gibbs v. Guild, 9 Q. B. D. 59, 65, Lord Coleridge, in C. A. CHAPTER III. REMEDIES AND THEIR CONSISTENCY. THE law has provided one, sometimes more than one, of the following remedies for fraud, applicable according to circumstances to be stated in their place: An action for damages, or a cross-action; rescission of contract oral or written; injunction against a suit or the use of an instrument, including cancellation of the writing; proceedings to vacate judgments obtained by fraud, new trials, and proceedings to vacate or in consequence of vacating fraudulent alienations of property by debtors. So far as they are not inconsistent with each other two or more of these remedies may, if appropriate, be carried on in one suit or in separate contemporaneous suits. If then in a particular case it is found necessary to join or to consolidate1 two consistent demands growing out of the same cause, it will be by reason of the exigencies of rules of practice, or because of the unnecessary hardship upon the opposite party to compel him to defend two suits, and not because of any rule of law which prevents the double recovery. This may be illustrated and its generality somewhat defined by one or two cases of rescission. In many states a conveyance of real property can be effectually rescinded only in equity; but equity would in this case, no doubt, as in other 1 As to consolidation of actions see Gould, Pleading, ch. 4, § 103, where it is said: Where one brings several suits upon several distinct demands which might all have been joined in one action, the court may, upon the defendant's motion, compel a consolidation of them; that is to say, may order all the declarations in the several actions to be inserted, as so many counts, in one declaration.' This however is discretionary. Ib. cases, permit a recovery of all damages sustained by the plaintiff, including those for the fraud. Whether an action for such damages could be maintained after the recovery in equity is doubtful, unless they were of such a nature, or so well concealed, by the defendant, as not there to be ascertainable. In other states however the conveyance could be annulled by the rescission so effectually as to permit of an action at law, such as a writ of entry,2 to recover possession; but in a (statutory) writ of entry damages beyond mesne profits and detriment to the estate could not, it seems, be recovered. The plaintiff would therefore be compelled to sue for damages in a separate action. On the other hand a simple sale of personalty, obtained by the buyer through fraud, could be effectually rescinded in pais, so as to justify an action at law for the conversion of the property on the refusal of the buyer to return it; and in this action the plaintiff could and ordinarily would, as in equity, make his claim for any damages sustained by reason of the fraud, apart from injury to the property and loss of possession. Again a bill in equity for rescission (which, it may be remarked, is a different thing from an action based upon a rescission made 3) may also call, in an appropriate case, for an injunction against the assignment or other transfer of the written instrument under consideration. So too in a proceeding in equity to vacate a judgment obtained by fraud there may in a proper case be an injunction to prevent the enforce 1 Upon this point comp. Belshaw v. Moses, 49 Ala. 283. But see Serrao v. Noel, 15 Q. B. D. 549 (C. A.); Whitney v. Clarendon, 18 Vt. 252; Hodsoll v. Stralle brasse, 11 Ad. & E. 301; Darley Colliery Co. v. Mitchell, 11 App. Cas. 127 (overruling Lamb v. Walker, 3 Q. B. D. 389); Brunsden v. Humphrey, 14 Q. B. D. 141, 152. Still it is apprehended that where the damages were fraudulently concealed by the defend- ment of the judgment pending the proceeding. These proceedings, instead of being inconsistent with, are supplements of each other. If however two proposed proceedings are inconsistent, the law will allow but one of them. If the two are pending at the same time, the law will require the plaintiff at the instance of the defendant, to elect between the two; and the election, if made with knowledge of the facts, will be conclusive.2 If one of the two inconsistent remedies has been prosecuted to judgment before the other is instituted, then too there will be deemed to have been an election of remedies, unless the second proceeding is based (in part) upon the ground of some invalidity, such as fraud by the opposite party in keeping the plaintiff's witnesses away from court, or of some equity that has arisen since the judgment was rendered. We have mentioned some of the remedies which are consistent with each other; what remedies are inconsistent? The following may be stated: An action for damages for the fraud by which the defendant has induced the plaintiff to enter into a contract the fruits of which the plaintiff retains, and an action based upon rescission; the former would treat the contract as binding, while the latter would repudiate it as invalid. On the other hand if a proceeding is instituted for the purpose of effecting a rescission of the contract, no action for damages involving the existence of the contract can be maintained, — nothing is permitted in the way of an action for damages except an action by which the contract is repudiated. So if a contract of sale of goods has been rescinded by the vendor for fraud, he cannot afterwards sue for the price of them as agreed upon, or for their value as goods sold; though of course their value could be recovered in an action for their conversion upon refusal of the purchaser to return them, or the value of any part converted could be recovered.2 It is often said that for a person, induced to enter into a contract by the fraud of the other party thereto, to sue for damages is to affirm the contract; and that of course is inconsistent with repudiating it. This in fact is commonly true; for when the party defrauded sues for damages he ordinarily sues for the fraud by which he was induced to enter into a contract the fruits of which he still retains. He has e. g. bought a horse under fraudulent representations made by the vendor, and, keeping the horse, he sues for damages, to recover what the horse would have been worth had the representations been true. bringing another action inconsistent with the first, there appears to be a conflict of authority. That an election has been made if the facts were known, see Butler v. Hildreth, 5 Met. 49; and see Equitable Foundry Co. v. Hersee, 103 N. Y. 25. But see Newn ham v. Stevenson, 10 C. B. 713, the language of which however is restrained by Clough v. London Ry. Co., L. R. 7 Ex. 26 (Ex. Ch.). And see Krause v. Thompson, 30 Minn. 64; post, p. 437, section on Rescission. 1 Powers v. Benedict, 88 N. Y. 605; Jewett v. Petit, 4 Mich. 508; Walsh v. Lilley, 49 Mich. 423; Mallory v. Leach, 35 Vt. 156. 2 Ib. 'A wrong-doer carries away one hundred bags of grain; the owner recovers fifty by legal process from one who received it without consideration, and whose title is no better than that of the trespasser; does he thereby lose his right to recover the value of the remainder? Surely not. Nor is he bound to restore the fifty in order that the latter action can be maintained. Kinney v. Kiernan, 49 N. Y. 164. [See Moody v. Brown, 58 N. H. 45; Martin v. Roberts, 5 Cush. 126.] So the subsequent effort of these plaintiffs to obtain in bankruptcy compensation for the unfound portion of their goods is no obstacle to a recovery against a third person for so much of the fruits of the fraud as is found in his hands. Kinney v. Kiernan, supra.' Danforth, J. in Powers v. Benedict, supra. See also Stuart v. Blum, 28 Penn. St. 225. 8 The defrauded party may keep what he has received, and sue to recover damages for the fraud.' Earl, J. in Gould v. Cayuga Bank, 86 N. Y. 75 ; Whitney v. Allaire, 4 Denio, 554; s. c. 1 Comst. 305; Mallory v. Leach, 35 Vt. 158; Parker v. Marquis, 64 Mo. 38; Cavender v. Roberson, 33 Kans. 626. |