influence of a threat involving the loss of a husband's 1571. Fraud is either actual or constructive. NOTE.-Conkey vs. Bond, 34 Barb., p. 286. Fraud, actual or constru tive. fraud, what 1572. Actual fraud, within the meaning of this Actual Chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; 3. The suppression of that which is true, by one having knowledge or belief of the fact; 4. A promise made without any intention of performing it; or, 5. Any other act fitted to deceive. NOTE." Within the meaning of this Chapter." This definition is not to be considered as covering all varieties of fraud, but only such fraud as vitiates the consent of a pa ty to a contract. "Consists in any of the following acts."-Story (Eq. Jur., 187), defines fraud as a "trick, device, or artifice," etc. In Gardner vs. Heartt, 3 Denio, p. 236, it is called " a deceitfal practice, or willful device." It is at least doubtful whether any peculiar "artice" is necessary to constitute fraud. In Nichols vs. Pinner, 18 N. Y., p. 295, and Nichols vs. Michael, 23 N. Y., p. 264, Selden, J., expressed his opinion that there must be something of the kind, in addition to an intent to defraud, in order to constitute haud in a purchase. But in each of those cases a different opinion was expressed by other Judges, and in Hennequin vs. Naylor, 24 N. Y., p. 139, the opinion of James, J., which appears to have been concurred in by the whole Count, is exp icit to the contrary. So is King vs. Phillips, 8 Bosw., p. 603. This section inclines to the latter view as more sound.--See, also, Brown vs. Montgomery, 20 N. Y., p. 287. "Or with his connivance."-A faudulent representation made by C to A, with intent to induce A to enter into a contract with B, would not, it is clear, enable A to rescind the contract if B had no part in or knowledge of the fraud (Holbrook vs. Wilson, 4 Bosw., p. 64), at least, on the ground of fraud. But if C was the agent of B, or even if he acted in concert with him, or in short, if B in any way connived at the fraud, A might rescind.-See Cassard vs. Hinman, 6 Bosw., p. 8.) "With intent to deceive." For the purpose of avoiding a contract, it is not necessary that the fraud should have been committed with an intent to injure the party deceived. Every man has a right to decide for himself whether he will enter into a contract or not, and no one has a right to deceive him even for his own good. The cases in which the question of injury is discussed are direct actions for deceit, in which, of course, if no damage has been suffered, none can be recovered. Naked misrepresentation, however wrong in point of morals, unaccompanied by actual damage, does not afford ground for relief against an executed contract for the sale of land.-Board of Commissioners F. D. S. J. vs. Younger, 29 Cal., p. 172. But a fraudulent intent is nevertheless essential to constitute actual fraud. Even an untrue statement is not necessarily a fraud, for it may be made and accepted in jest. Much more is some fraudulent intent necessary to be shown in cases of mere concealment. For fraudulent intent, see Swartz vs. Hazlett, 8 Cal., p. 118. The declarations and acts of a vendor before sale are competent testimony to show a fraudulent intent on his part. Landecker vs. Houghtaling, 7 Cal. p. 391; Visher vs. Webster, 8 Cal., p. 109; Cohen vs. Mulford, 15 Cal., p. 50. An intent to deceive, whenever carried out, constitutes a fraud, even though there may not have been an intent to induce the party deceived to contract. Thus, if A should, on Monday, out of mere mischief or love of deception, tell B that Congress had just repealed the duty on paper, and should sustain his assertion by showing public news to the same effect, which he however knows to be erroneous, and should, on Tue-day, purchase paper of B on terms to which B was induced to assent by reason of the falsehood of the day before, B would clearly have a right to rescind, even though A did not know or suppose that B was influenced by his false statements. The assertion of a certain thing as a matter of fact, when in reality the asserter knows nothing about the matter, may often be a fraud, without any clear intention to deceive. In such cases, it is more satisfactory to fix upon the intent to induce consent as the test of fraud. Even where there is no intent to deceive, there may be such an amount of gross carelessness as to constitute conclusive evidence of fraudulent intent.-Alvarez vs. Brannan, 7 Cal., p. 503. Subd. 1.-The word "suggestion" is used, instead of "assertion," because even a hint, or a true report of what others have untruly said, is a fraud, when conveying an impression which the party knows to be false, and made for that purpose.-See Haight vs. Hayt, 19 N. Y., p. 464; White vs. Merritt, 7 id., p. 352; Gifford vs. Carvill, 29 Cal., p. 589; also, see De Leon vs. Higuera, 15 Cal., p. 483; also, Rhea vs. Surryhne, 39 Cal., p. 579. As to what constitutes actual fraud, see the able opinion of Justice Wallace in Roseman & Howland vs. Canovan & Sanborn, January Term Sup. Ct. Cal., 1872. A misrepresentation of the value of a business and the good will thereof, knowingly made by the vendor, held: fraudulent, and entitled purchaser to rescission of the contract.-Cruess vs. Fessler, 39 Cal., p. 336. Subd. 2.-Bennett vs. Judson, 21 N. Y., p. 238; Craig vs. Ward, 36 Barb., p. 377; Evans vs. Edmonds, 13 C. B., p. 776. Subd. 3.-Belden vs. Henriques, 8 Cal., p. 87; Nichols vs. Michael, 23 N. Y., p. 264; Hennequin vs. Naylor, 24 N. Y., p. 139; Hall vs. Naylor, 18 id., p. 588; Addington vs. Allen, 7 Wend., p. 20; Lee vs. Jones, 14 C. B. (N. S.), p. 386; Bank of Republic vs. Baxter, 31 Verm., p. 101; Paddock vs. Strobridge, 29 id., p. 470; Martin vs. Morgan, 1 Brod. & B., p. 289; Drummond vs. Tracy, 6 Jar. (N. S.), p. 369; see Squire vs. Whitten, 1 H. of L. Cas., p. 333; Dolman vs. Nokes, 22 Beav., p. 402; Broderick vs. Broderick, 1 P. Wms., p. 239. Concealment of the fact by a vendor of real property that he holds merely as tenant, does not constitute such fraud as will entitle his vendee to relief in equity. Hastings vs. O'Donnell, 40 Cal., p. 148. Subd. 4.-It has been held that a mere promise, though made with an intention not to perform it, and for the purpose of misleading a party to his injury, is not such a fraud as would sustain an action for deceit. Farrington vs. Bullard, 40 Barb., p. 512; Gallagher vs. Brunel, 6 Cow., p. 346; Fisher vs. New York C. P., 18 Wend., p. 608. It is not such a fraud as will sustain an indictment for false pretenses (Ranney vs. People, 22 N. Y., p. 413); but it seems to stand upon the same footing with a purchase of goods with intent not to pay, which has been repeatedly held to be a fraud.-Hennequin vs. Naylor, 24 N. Y., p. 139; Nichols vs. Michael, Constructive fraud. 1573. 23 id., p. 264; King vs. Phillips, 8 Bosw., p. 603; see especially Bigelow vs. Heaton, 6 Hill, p. 43. In Seaman vs. Low, 4 Bosw., p. 337, false representations as to what the seller was about to do, were held sufficient to avoid a sale. See, also, Butler vs. Collins, 12 Cal., p. 457. Subd. 5.-In Farley vs. Vaughn et al., 11 Cal., p. 227, it was held that it would be a fraud, which no Court of equity would tolerate, to hold that the vendor of land on a contract to convey, receiving a portion of the purchase money, and seeing the vendee expend large sums of money improving the property, without objection, and not making any demand for the purchase money, should insist, because the vendee had not literally complied with the provisions of his contract on his part, on holding the whole contract forfeited, claim the land and the money paid, and all the improvements, and deny all obligations on his part to comply with his engagements. In such a case, where there has been a compliance with a reasonable understanding of the contract, and no injury done by the want of an exact compliance, a specific performance will be decreed. A deed obtained through fraud is only voidable, and a bona fide purchaser from the vendee in such deed, for a valuable consideration, without notice of the fraud, will hold the property.-Deputy vs. Stapleford, 19 Cal., p. 302. Where one of two innocent persons must suffer loss by the fraudulent act of a third, he who enabled such third party to occasion the loss, must bear it. Poorman vs. Mills & Co., 39 Cal., p. 345. Constructive fraud consists: 1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud. NCTE.-Subd. 1.-Bulkley vs. Wilford, 2 Clark & Fin., pp. 102, 177, 181. Even where there is no intent to deceive, there may be such gross carelessness as to constitute conclusive evidence of fraudulent intent.Alvarez vs. Brannan, 7 Cal., p. 503. Subd. 2.-Conkey vs. Bond, 24 Barb., p. 276; People 1574. 1575. vs. Kelley, 35 Barb., p. 444. A mistake is not either Actual fraud is always a question of fact. Actual fraud & fact. NOTE.-Dunham vs. Waterman, 17 N. Y., p. 21; question of Wilson vs. Forsyth, 24 Barb., p. 105; Ford vs. Chambers, 19 Cal., p. 143; see King vs. Davis, 34 Cal., p. 100, and Southworth vs. Resing, 3 Cal., p. 377; Billings vs. Billings, 2 Cal., p. 107. Where there is no dispute as to the facts, and the law upon these facts declares a transaction fraudulent, it is then not a question for the jury, but the Court may in such a case direct the jury how to find and set aside the verdict if they find to the contrary.-Chenery vs. Palmer, 6 Cal., p. 119. Undue influence consists: influence, 1. In the use, by one in whom a confidence is re- Undue posed by another, or who holds a real or apparent what. authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; 2. In taking an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress. NOTE.-Subd. 1.-It may safely be stated as a general rule of equity, that no one can be permitted to make any selfish use of a personal confidence reposed in him. This rule is illustrated in a variety of forms, and sustained by numerous authorities, in the Title on Trusts. But it is also proper to be recognized in this place. It is not necessary, in such cases, to show that there was any deception practiced. It is sufficient to show that the confidence reposed was taken advantage of for purposes of gain.-See Sears vs. Shafer, 6 N. Y., pp. 268, 272; Bergen vs. Udall, 31 Barb., p. 9; Brock vs. Barnes, 40 Barb., p. 521; Baker vs. Bradley, 7 De G., M. & G., p. 597; Tyrrell vs. Bank of London, 10 H. of L. Cas., p. 26; Dent vs. Bennett, 4 Myl. & Cr., p. 269; 7 Sim., p. 539; Broun vs. Kennedy, 9 Jur. (N. S.), p. 1163; Davies vs. Davies, id., p. 1002. A parent may not acquire anything from his child by the slightest exercise of parental authority.-Bury vs. Oppenheim, 26 Beav., |