Sec 232

Fraud is a distortion of the truth with intent to inflict on another pecuniary damage.1 It makes no matter whether the fraud is expressed in words or in conduct;2 nor, if expressed in words, is it necessary that these words should have the fraud unequivocally stamped on them. If the intention is to defraud, and this intention is consummated, the party defrauding is responsible, no matter how ambiguous or equivocal may have been the words he used.3 - In an oft quoted passage in the Fraud is an intentional distortion of truth.

1 L. 1, sec D. h. t.; L. 1, sec 2; L. 7, sec 3, 8; L. 8, L. 9, sec 2; L. 37, D. h. t. Bright v. Eynon, 1 Burr. 390; Fox-croft v. Devonshire, 1 W. Bl. 193; Mallary v. Leach, 35 Vt. 156. See notes to Chandeler v. Lopus, Smith's L. C. 7th Am. ed. 299; Smith v. Richards, 13 Pet. 36. Fraud in the Roman law is subjected to the same test as duress: contracts induced by it are not ipso jure invalid, but may be invalidated ope exceptionis. Supra, sec 145.

2 Infra, sec 248.

3 Lee v. Jones, 17 C. B. N. S. 482; 14 C. B. N. S. 386; infra, sec 242 et seq. "Fraud is a false representation of fact, made with a knowledge of its falsehood, or in reckless disregard whether it is true or false, with the intention that it should be acted on by the complaining party, and actually inducing him to act upon it." Anson, 145.

"Fraud generally includes misrepresentation. Its specific mark is the presence of a dishonest intention on the part of him by whom the representation is made. In this case we have a mistake of one party caused by a representation of the other, which representation is made by deliberate words or conduct with the intention of thereby procuring consent to the contract, and without a belief in its truth." Pollock, 3d ed. 524.

Mr. Bispham (Eq. sec 24), following Lord Hardwicke in Chesterfield v. Jan-

Digest,1 we have the following definitions: "Dolum malum Servius quidam ita definit, machinationem quandam alterius decipiendi causa, cum aliud simulatur et aliud agitur. Labeo autem posse (et)sinesimulatione idagi, utquiscircumveniatur; posse et sine dolo malo, aliud agi, aliud simulari; sicuti faciant, qui per ejusmodi dissimulationem deserviant, et tuentur vel 'sua vel aliena. Itaque ipse sic definiit, dolum malum esse omnem calliditatem, fallaciam, machinationem ad circumve-niendum, fallendum, decipiendum alterum adhibitam. Labe-onis definitio vera est."2 - Judge Story tells us,3 that "it is not easy to give a definition of fraud in the extensive signification in which that term is used in courts of equity; and it has been said," he adds, " that these courts have, very wisely, never laid down, as a general proposition, what shall constitute fraud." And he quotes a letter in which Lord Hard-wicke says: "As to relief against fraud, no invariable rules can be established. Fraud is infinite; and were a court of equity once to lay down rules, how far they would go and no further, in extending their relief against it, or to define strictly the species or evidence of it, the jurisdiction would be cramped, and perpetually eluded by new schemes which the fertility of men's invention would contrive." Judge Story afterwards4declares, that "fraud in the sense of a court of equity properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly imposed, and are injurious to another, or by sen, 1 Atk. 301, 2 Ves. 125, divides fraud as follows: "1. Fraud arising from facts and circumstances of imposition; 2. Fraud arising from the intrinsic matter of the bargain itself; 3. Fraud presumed from the circumstances and condition of the parties contracting; 4. Fraud affecting third parties not parties to the transaction." He declares (sec 197), that "while the general signification of this word (fraud) is easily understood, and, indeed, requires no explanation, it is, nevertheless, difficult to give any satisfactory definition of it in a single sentence, for the simple reason, that courts of equity have always avoided circumscribing the area of their jurisdiction in such cases by precise boundaries, lest some new artifice, not thought of before, might enable a wrongdoer to escape from the power of equitable redress." , which an undue and unconscientious advantage is taken of another." This substantially agrees with the position above taken, that fraud is a distortion of the truth with intent to inflict on another pecuniary damage. To make such fraud the basis, however, of a civil suit, some pecuniary injury must be actually inflicted;1 though this is not necessary to sustain a criminal prosecution for an attempt.2

1 L. L. sec 2, D. IV. 3.

2 In Story's Contracts, sec 620, following this, fraud is defined to be " every kind of artifice employed by one person for the purpose of deceiving another.".

3 Eq. Jur. 12th ed. sec 186. 4 sec 187.