The definition finds that fraud is divided into two great branches, deception and circumvention, which may appear separately, or together. Deception is treated as fraud touching motives, and implies some transaction between the wrong-doer and the party wronged either directly or through an agency; circumvention is treated as fraud not touching motives, and implies the absence of any transaction between such parties. Deception follows, in the main, the lines of the judge-made or juristic law of fraud; circumvention, in the main, the lines of the statutory law.

If this were all, we should have to do only with substantive law; but like most other subjects, the law of fraud has also an adjective side, to use a convenient term for those secondary rights which the law provides for the enforcement of the primary ones. Adjective law must be dealt with; and this might possibly be done upon the same lines, of deception and circumvention. That however would prove to be very unsatisfactory if found practicable, because there is too much in common for separation; and separation would require endless repetition.

The adjective law has therefore been kept together; and it has been placed at the beginning of the book. Theoretically this might give ground for criticism; for it might well be argued that primary rights ought to be treated first, as being first both in fact and in importance. To this the author has only to say that considerations of convenience in the matter of adjusting equally, as far as possible, the size of two volumes, had something to do with the place given to the subject;

and besides experience shows that the end of a book is not the best place to put such subjects, if the object is to call special attention to them. The adjective law of fraud makes a considerable body of itself; few branches of the law have had so full a development upon that side. This is sufficient to indicate its importance, and to require that it should not be shelved.

The book then, after the chapter on the Definition of Fraud, begins with a consideration of the adjective law; and this is presented in the order in which questions pertaining to it naturally arise in the hands of the practising lawyer. First comes the subject of Statutes of Limitation and the equitable doctrine of Lapse of Time. This is followed by a chapter on Jurisdiction; and then follow in order chapters on Remedies and their Consistency,3 Actions for Damages and Cross Actions, Rescission," -in which there is a particular consideration of rescission in pais,' 'judicial rescission,' andrescission by plea,' - Injunction, Vacating Judgments, and New Trials.6 these in one chapter,

Joinder of Parties, Pleading, Burden of Proof," and Evidence.10

That completes the adjective law; and there is nothing to be said of the theory of that part of the subject. The substantive law begins with a consideration of certain general principles, first in relation to the question who is to be understood by the party defrauded,' " secondly, who by 'the party defrauding,' 12 in chapters

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thus entitled. In the first of these questions the following subjects are considered; The Person Intended,1 Consent and the rule of Particeps Criminis, Personal Nature of Fraud, and Suits by Personal Representatives. The chapter on The Party Defrauding treats inter alia of questions of disability," of agency, partnership, conspiracy, and fraud committed by third persons. It is proper to call special attention to the important questions treated under agency.10

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This brings the inquiry down to the subject of Constructive Fraud; a great subject which it was thought best to dispose of before considering fraud proper, for much the same reason that governed in regard to the adjective law.

In the chapter on Definition no attempt was made to define anything but real fraud; but it was indicated that constructive fraud, which as such covers wrongs more or less of the nature, but always falling short of, real fraud, fell into two parts, first a class of cases relating to Fiduciary and Confidential Relations," and secondly, a group of cases which, later, in the proper place, was considered under the head of 'Conduct Subsequent.' 12

The author lays stress upon this division of constructive fraud. In it we have in the first place a familiar class of cases needing only to be mentioned here, in which the burden of proof, after the relation of the parties is shown, rests upon the defendant even when

his case consists only of denial of the plaintiff's allegations, a marked exception of course to general principles. Of the other division, or group of cases, given under the head of Conduct Subsequent,' something more should be said. Here the burden of proof, as in ordinary cases, rests on the plaintiff upon denial; and the fraud' differs from true fraud in that the wrong consists, not in any evil purpose at the outset, when the right affected was conferred, but in turning the original act and right to a wrongful end. It is a case then of subsequent misconduct.

It is believed that the existence of such a group of cases has not before been pointed out; and it may be that the author is laying too much stress upon it. He is however persuaded, upon much consideration of the subject, that more will be found in it than has in this book been stated. That is, the author believes that other subjects than those which he has placed under the head of Conduct Subsequent' will naturally take their place there, in the further development of the law; for the principle itself appears to be adequate for the disposal of all those cases not arising under fiduciary or confidential relations, which, not being cases of true fraud, may yet deserve to be treated, in certain important particulars, as if they were such.

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Of course it is not true that subsequent misconduct in regard to a right acquired is necessarily to be considered, by construction, a fraud. Indeed, as has just been intimated, it is not clear as yet what cases this branch of constructive fraud embraces; those however which are referred to in the chapter defining the term

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'fraud,' and are afterwards set out in the chapter on Conduct Subsequent, seem plainly to belong to it. These are Notice in its various forms,1 Volunteers and Purchasers without Value, Innocent Misrepresentation, Fraud on Powers, Perversion of the Statute of Frauds in the case of verbal contracts for the sale of land, and Surprise. Many of the specific cases falling under these heads are indeed cases of true fraud; but that is an accident. It is not necessary that there should be fraud in the proper sense to create the right of action; the presence of fraud only makes a stronger case. The same remark may be made of many cases falling under the first division of Constructive Fraud.8

Now in none of the cases mentioned is there any wrong at the outset, when the right was acquired. Take two of the cases for illustration: I acquire property with notice that my vendor or donor bought it from another by means of fraud. My becoming possessed of the property is no wrong to any one, assuming that there had been no rescission of the first sale; for until rescission my vendor had the title, and he has only transferred that to me. I have had nothing to do with the fraud committed by him, and may indeed have known nothing of it. But, after taking the property subject to the rights of the defrauded party, it would be wrong for me to deny his right to it, should he claim it before any change of position by me. The wrong on my part therefore must be found in my subsequent unfair conduct. Again suppose a power of appoint