corporeal property. As such it is liable for debts and subject to the right of eminent domain.1 The ordinary franchise of a railway company is to condemn, take, and use lands for the purpose of a public highway, and to take tolls from those who use it as such. Land, in itself, is not a franchise. A franchise is an incorporeal hereditament; a liberty proceeding from the commonwealth.2 A grant of a corporate franchise by an act of legislation, accepted by the grantee, is a contract between the State and the grantee, the obligation of which a subsequent legislature cannot impair.3 Exclusive rights to public franchises are not favored; if granted they will be protected, but they are never presumed.4 A corporation cannot dispose of its franchises to another corporation without legislative authority." A grant of corporate franchises is necessarily subject to the condition that the privileges conferred shall not be abused, or be employed to defeat the ends for which they were conferred; and that when abused or misemployed, they may be withdrawn by proceedings consistent with law. A corporation is subject to such reasonable regulations as the legislature may from time to time prescribe, as to the general conduct of its affairs, serving only to secure the ends for which it was created, and not materially interfer- ⚫ing with the privileges granted to it. See BONUS; GRANT, 3; MONOPOLY; RAILROAD; TAX, 2; TOLL, 2; WARRANTUM. 2. In a popular sense, the political rights of subjects and citizens are called franchises: as, the electoral franchise - the right of suffrage.7 The right of voting for a member to serve in parliament is called the "parliamentary franchise; " the right of voting for an alderman or town councilor, the "municipal franchise." 8 cise of a corporate or political right or privilege.1 Craft, cunning; cheating, imposition, circumvention. An artifice to deceive or injure.8 An intention to deceive.9 Defraud. To cheat; to deceive; to deElective franchise. The right of choosprive of a right by an act of fraud. ing governmental agents.9 Enfranchise. 1. To make free of a city or state. 2. To invest with political freedom and capacity. Disfranchise. To deprive of a franchise conferred; to suspend or withdraw the exer12 Washb. R. P. 24; 1 Redf. Ry. §§ 1, 4, 10, cases. 2 Shamokin Valley R. Co. v. Livermore, 47 Pa. 468 (1864), Agnew. J. 3 Chincleclamonche Lumber, &c. Co. v. Commonwealth, 100 Pa. 444 (1882); The Binghamton Bridge, 3 Wall. 51 (1865). 4 Wright v. Nagle, 101 U. S. 796 (1879). Branch v. Jesup, 106 U. S. 484, 478 (1882). Chicago Life Ins. Co. v. Needles, 113 U. S. 574, 580 (1885), Harlan, J. See also 66 Cal. 106-7; 36 Conn. 266; 47 id. 602; 21 111. 69; 37 id. 547; 95 id. 575; 30 Kan. 657; 13 Bush, 185; 28 La. An. 493; 45 Md. 379; 15 N. Y. 170; 27 id. 619; 68 id. 555; 1 Oreg. 37; 39 Tex. 478; 77 Va. 212. Pierce v. Emery, 32 N. Η. 507 (1856), Perley, C. J. • Mozley & Whiteley's Law Dict. • See State v. Staten, 6 Coldw. 255 (1869). To withhold from another what is justly due him, or to deprive him of a right, by deception or artifice. 10 Fraud, in the Roman civil law, meant any cunning, deception, or artifice, used to circumvent, cheat, or deceive another. This corresponds to "positive fraud" in modern law. 11 1 See People v. Medical Society, 24 Barb. 577-78 (1857). 2 F. franc, free. 3 See 2 Bl. Com. 101; 2 Kent, 281. 17 St. L. 421. 51 Sup. R. S. 154. 1 Sup. R. S. 288, 454. From fraus, q. v. Byles, Bills, 133. • Lord v. Goddard, 13 How. 211 (1851), Catron, J. On definitions of, see 3 Law Quar. Rev. 419-28 (1887), cases. 10 Burdick v. Post, 12 Barb. 186 (1851); People v. Kelley, 35 id. 452 (1862). 11 [1 Story, Eq. § 186. See 2 Steph. Hist. Cr. Law Eng. 121. The common law asserts as a general principle that there shall be no definition of fraud.¹ The courts have never laid down as a general proposition what shall constitute fraud, or any rule, beyond which they will not go, lest other means of avoiding equity should be found.2 In the sense of a court of equity, fraud properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.3 Consists in deception practiced, in order to induce another to part with property or surrender some legal right, and which accomplishes the end desired.4 Consists in the suppression of the truth - suppressio veri, or in the assertion of what is false - suggestio falsi. No one can be permitted to say, in respect to his own statements upon a material matter, that he did not expect to be believed; and if they are knowingly false, and willfully made, the fact that they are material is proof of an attempted fraud, because their materiality, in the eye of the law, consists in their tendency to influence the conduct of the party who has an interest in them, and to whom they are addressed. Fraud is sometimes said to consist of "any kind of artifice employed by one person to deceive another." But the term admits of no positive definition, and cannot be controlled in its application by fixed rules. It is to be inferred or not, according to the special circumstances of every case. Actual, positive, moral fraud; fraud in fact. Fraud as a matter of fact, involving moral turpitude and intentional wrong. Implied, constructive, legal fraud; fraud in law. Fraud as a conclusion of law, and may exist without imputation of bad faith or immorality. When a party intentionally misrepresents a material fact, or produces a false impression, in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage over him, there is a "positive fraud" in the truest sense. se. There is an evil act with an evil intent. And the misrepresentation may be as well by deeds or acts, as by words; by artifice to mislead, as well as by positive assertions. 12 Pars. Contr. 769. [1 Story, Eq. § 186. 3 [1 Story, Eq. § 187. Alexander v. Church, 53 Conn. 562 (1885), Park, C. J., quoting Cooley, Torts, 474; Judd v. Weber, 55 Conn. 277 (1887), Loomis J. Claflin v. Commonwealth Ins. Co., 110 U. S. 95 (1884), Matthews, J.; 27 Me. 308; 7 Bing. 105; 56 N. Η. 401; 58 id. 245; 3 B. & Ad. 114. Fenner v. Dickey, 1 Flip. 36 (1861), Wilson, J. [Neal v. Clark, 95 U. S. 709 (1877), Harlan, J. [1 Story, Eq. § 192. See also Ackerman v. AckerBy "constructive frauds" are meant such acts or contracts, as, although not originating in any actual evil design, or contrivance to perpetrate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud, and, therefore, are prohibited by law, as within the same reason and mischief, as acts and contracts done malo animo. The doctrine is founded in an anxious desire of the law to apply the principle of preventive justice, so as to shut out the inducements to perpetrate a wrong, rather than to rely on mere remedial justice, after a wrong has been committed.1 An "actual fraud" is something said, done, or omitted by a person with the design of perpetrating what he must have known to be a positive fraud. "Constructive frauds" are acts, statements. or omissions which operate as virtual frauds on individuals, or which, if generally permitted, would be prejudicial to the public welfare, and yet may have been unconnected with any selfish or evil design.2 A breach of duty is a constructive fraud. In the sense of bankrupt acts, "a debt fraudulently contracted by a person occupying a fiduciary relation" involves positive fraud, involving moral turpitude or intentional wrong.4 Fraud in fact in the transfer of chattels consists in the intention to prevent creditors from recovering their just debts, by an act that withdraws the debtor's property from their reach. And an act that, though not fraudulently intended, yet has a tendency to defraud creditors, if it vests the property of the debtor in his grantee, is void for legal fraud. Legal fraud is tantamount to actual fraud. Actual fraud is for the jury; legal fraud, where the facts are undisputed or are ascertained, is for the court. 5 Fraudulent. Infected with fraud, actual or legal; as, a fraudulent bankruptcy, claim, concealment, conveyance or gift, possession, representation, qq. v. Compare VOID. When an act charged in an indictment is fraudulent, it is not necessary to use the word "fraudulent" in the indictment itself. man, 44 N. J. L. 175 (1882), Depue, J.; 29 Conn. 588, note. 11 Story, Eq. § 258. See People v. Kelly, 35 Barb. 457 (1 Fraudulently. With a deliberately planned purpose and intent to deceive and thereby gain an unlawful advantage.1 The ordinary means of fraud are false representations and concealments. The more numerous is the implied or constructive class-which includes all frauds on public policy: agreements to influence testators, to facilitate or restrain marriages, in restraint of trade, for public offices, to suppress criminal proceedings, champertous and other corrupt considerations; all frauds by persons in confidential relations: as, by a guardian, adviser, minister of religion, attorney, doctor, agent, trustee, executor, administrator, debtor, creditor, surety; all frauds upon persons peculiarly liable to be imposed upon: as, bargains with expectant heirs, remaindermen, reversioners, common sailors; and all virtual frauds on individuals irrespective of any confidential relation or liability to imposition: as, forbidden practices at auctions, misuse of the Statute of Frauds, clandestine marriages, frauds on marital rights, frauds under 13 Eliz. c. 5, 96, fraudulent dealing with trustees, appointments, etc.2 The fraud must relate directly and distinctly to the contract, if a contract and must affect its very essence. If the fraud be such that had it not been practiced the contract would not have been made, the fraud is material. Whether it is or is not material, in a given case, is a question for a jury, possibly under instructions. 3 The length of time that the intent to defraud precedes the act is not material, provided there is the relation of design and its consummation. Concealment by mere silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry. There must be reasonable diligence; and the means of knowledge are the same thing in effect as knowledge itself. The circumstances of the discovery must be fully stated and proved, and the delay which had occurred shown to be consistent with the requisite diligence.4 Fraud binds the injured person, as a cause of action, only from the time of discovery. The bar of the statute of limitations does not begin to run until the fraud is discovered. Where ignorance has been produced by affirmative acts of the guilty party in concealing the facts, the statute will not bar relief, provided that suit is brought within proper time after the discovery. Nor is relief barred where the party injured has remained in ignorance without fault or want of diligence on his part.. The weight of authority is, that, in equity, where the injured person remains in ignorance of fraud Bank of Montreal v. Thayer, 2 McCrary, 5 (1881), McCrary, Cir. J. 2 See 1 Story, Eq. Ch. VI; Smith, Man. Eq. Ch. IV; 2 Pars. Contr. Ch. XII. 2 Pars. Contr. 770; Bishop, Contr. §§ 641, 652. • Wood v. Carpenter, 101 U. S. 143, 140 (1879), cases, Swayne, J. without want of care on his part, the bar does not begin to run until the fraud is discovered, though there be no special circumstances or efforts in the guilty party to conceal knowledge. On the question as it arises in actions at law, there is a decided conflict of authority. Some courts make concealed fraud an exception on purely equitable principles. The English courts, and the courts of Connecticut, Massachusetts, Pennsylvania, and other States, hold that the doctrine is equally applicable to cases at law. See LIMΙΤΑTIONS, Statute of. A court of equity has an undoubted jurisdiction to relieve against every species of fraud. 1. The fraud, which is dolus malus, may be actual, arising from facts and circumstances of imposition. 2. It may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other. 3. It may be presumed from the circumstances and condition of the parties contracting, - from weakness or necessity. 4. It may be inferred from the nature and circumstances of the transaction, as being an imposition and deceit on persons not parties to the agreement.2 There is no fraud in law without some moral delinquency; there is no actual legal fraud which is not also a moral fraud. This immoral element consists in the necessary guilty knowledge and consequent intent to deceive-sometimes designated by the technical term the "scienter." The very essence of the legal conception is the fraudulent intention flowing from the guilty knowledge. There may be actual fraud in equity without any feature or incident of moral culpability. A person making an untrue statement, without knowing or believing it to be untrue, and without any intent to deceive, may be chargeable with actual fraud in equity. Forms of fraudulent misrepresentations in equity are: 1. Where a party makes a statement which is untrue, and has at the time actual knowledge of its untruth. 2. Where he makes an untrue statement and has neither knowledge nor belief as to the truth. 3. Where he makes an untrue statem Fraud avoids a contract ab initio - vitiates all contracts whether intended to operate against a party, a stranger, or the public generally. The guilty party cannot allege his own fraud in order to avoid his own act; and he may be liable in damages where real injury is done. The agreement cannot be adopted in part: all must be disaffirmed or none. Fraud is never presumed. The burden of proving it rests upon him who alleges it. It is a question of fact to be determined from all the circumstances in each case.2 Allegations of fraud must be specific in time, place, persons, etc., so that the defendant may meet the charge, and the court see whether ordinary diligence to discover the fraud has been used.3 Being a term which the law applies to certain facts, where, upon the facts, the law adjudges fraud, it need not be expressly alleged.4 Gross negligence tends to show fraud. All avenues that facilitate the detection of fraud are to be kept open and free from bars and estoppels. The presence of fraud is a fact, the evidence of which must satisfy an unprejudiced mind beyond a reasonable doubt.7 Circumstantial evidence is, in most cases, the only proof that can be adduced. While the common law affords reasonable protection against fraud in dealing, it does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or of careless indifference to the ordinary and accessible means of knowledge.. A court of equity will not grant relief when the complainant has a complete, effectual, direct, certain and adequate remedy in a court of common law. 10 Statutes make many different acts frauds, and provide for punishment by criminal proceedings. Remedies available at law are: an action on the case in the nature of a writ of deceit for damages; and an action for money received, by which the tort is waived. Remedies in equity: rescission of the contract; spe1 Foreman v. Bigelow, 4 Cliff. 543-49 (1878), cases, Clifford, J. See also Feltz v. Walker, 49 Conn. 98 (1881), cases, Carpenter, J. * Hager v. Thompson, 1 Black, 91 (1861); Humes v. Scruggs, 94 U. S. 28 (1876); 2 Pars. Cont. 784. 3 See Stearns v. Page, 7 How. 829 (1849); Moore v. Greene, 19 id. 70 (1856); Badger v. Badger, 2 Wall. 95 (1864); Ambler v. Choteau, 107 U. S. 591 (1882). 4 Stimson v. Helps, 9 Col. 36 (1885); Kerr, Fraud, &c. 366, cases. First Nat. Bank of Carlisle v. Graham, 100 U. S. 702 (1879), cases. • Pendleton v. Richey, 32 Pa. 63 (1858); 11 Wend. 117; 4 Kent, 269. Young v. Edwards, 72 Pa. 267 (1872). • Rea v. Missouri, 17 Wall. 543 (1873); Craig v. Fowler, 59 Iowa, 203 (1882); Moore v. Ullman, 80 Va. 311 (1885), cases. cific performance; injunction; declaration of trust ex maleficio. See those titles. See particularly CAVEAT, Emptor; CONCEAL, 5; COVIN; DECEIT; EQUITY; ESTOPPEL; FORGERY; GUILTY; IDENTITY, 2; INFLUENCE; INNOCENCE; INSOLVENCY; MISTAKE; RATIFICATION; REFORM; REPRESENTATION, 1; RESCISSION; TRUST, 1. Statute of Frauds. Statute of 29 Charles II (1678), с. 3- "An Act for the Prevention of Frauds and Perjuries." Its object was to prevent the facility to perpetrate frauds and the temptation to commit perjury, held out by the enforcement of obligations depending for their evidence upon the unassisted memory of witnesses, by requiring certain transfers of land and certain cases of contracts to be reduced to writing and signed by the parties to be charged therewith, or by their agents thereunto lawfully authorized in writing. Its policy is to impose such requisites upon private transfers of property, as, without being hinderances to fair transactions, may be either totally inconsistent with dishonest practices, or tend to multiply the chances of detection.2 Every day's experience more fully demonstrates that the statute was founded in wisdom, and absolutely necessary to preserve the titles to real property from the chances, the uncertainty, and the fraud attending the admission of parol testimony. When courts of equity have relaxed the rigid requirements of the statute, it has always been for the purpose of hindering the statute, made to prevent frauds, from becoming the instrument of fraud. The substance of the statute has been re-enacted in the States; and other points, coming within its general policy, have been added.4 I. As applying to Realty. The statute enacts that all leases, estates, and interest in lands, made without writing signed by the parties or their agents lawfully authorized in writing, shall have the force and effect of estates at will only (sec. 1); except leases not exceeding three years from the making, which reserve at least two-thirds of the improved value of the land (sec. 2); and that no lease, estate, or interest shall be assigned, granted, or surrendered unless by writing signed by the assignor, grantor, etc., or his agent authorized in writing, except assignments, etc., by operation of law (sec. 3). See under FRUCTUS.