FORMEDON-continued. reversioner wanted to recover the lands against the then tenant thereof.

All these forms of this writ were abolished by the stat. 3 & 4 Will 4, c. 27. s. 36, but it would be a mistake to suppose that the analogous remedies are abolished, which they are not.

FRANCHISE. For the electoral franchise, see that title. But a franchise, as otherwise used, is an incorporeal hereditament or right, such as a ferry, or a market, entitling the owner of the franchise to take certain tolls or pecuniary payments. Sometimes, also, it denotes an exemption from the ordinary jurisdiction, coupled with the right of exercising a jurisdiction of one's own; and in this last signification it is a royal privilege or branch of the king's prerogative, subsisting in the hands of a subject; eg, to be a county palatine, to have right to hold a Court leet, to have waifs, wrecks, estrays, treasure-trove, royal fish, forfeitures, and deodands. 3 Cru. 278.

FRANKALMOIGN. Is a species of tenure of lands granted by the owner to the church or to any monastic body, to hold to the church or monastery for ever free (as the name denotes) of all manner of services to the donor for ever, save and except the saying of prayers and the distributing of charity to the poor for the welfare of the soul of the donor and his family for ever.

FRANKMARRIAGE. Is a species of tenure of lands granted by the owner to his son-in-law upon his marrying into the family, to hold to such son-in-law and the heirs of the marriage free (as the name denotes) of all manner of services to the donor until the fourth generation, the sole consideration for the gift being the marriage itself.

FRAUD. Its definition and the varieties thereof:

At Law, fraud has been thus variously defined:

(1.) Falsely and fraudulently warranting a specific article sold (Langridge v. Levy, 2 M. & W. 519); the scienter is an essential part of the definition, and its absence dispels the fraud (Longmeid v. Holliday, 6 Ex. 761);

(2.) Falsely and fraudulently representing a man as a safe customer (Pasley v. Freeman, 3 T. R. 51), where the representation is intended to be acted upon, and is in writing under 9 Geo. 4, c. 14, s. 6;

(3.) Recklessly asserting, without any knowledge of the matter, the existence of a certain state of circumstances, and inducing the plaintiff, in reliance thereon, to act upon an erroneous assumption to his

FRAUD-continued.

loss (Evans v. Edmunds, 13 C. B. 777) [sed quæritur]; and

(4.) Asserting without any knowledge of the matter, but with a disbelief of his own assertion, the existence of a certain state of circumstances, and inducing the plaintiff in reliance thercon to act upon an erroneous assumption, to his loss. Taylor v. Ashton, 11 M. & W. 415.

See infra, cases in which an action for fraud will lie at Law.

In Equity, fraud has never been defined, the Courts fearing that new cases of fraud might arise, which if they should not fall within the definition might prove to be irremediable; but the Courts of Equity have distinguished many classes and varieties of frauds, namely, the following:

I. Actual Fraud, and hereunder two sub-varieties, namely:

(A.) Frauds from a regard to the peculiar position of the defrauded person,

(B.) Frauds without any such regard, but arising from conduct generally, as being either

(1.) Suggestio falsi; or,

(2.) Suppressio veri.

·-

II. Constructive Fraud, and hereunder three sub-varieties, namely:(A.) Frauds, because evasions of the rules of public policy,

(B.) Frauds, because violations of trust or of confidence reposed, Frauds, because of unconscientious nature of acts themselves, either

(C.)

(1.) As against the parties; or, (2.) As against third persons.

And see concrete instances of fraud in paragraph containing Remedies in Equity.

Remedies in cases of Fraud. These remedies lie either at Law or in Equity. I. The remedies available at Law are the following:(1.) An action on the case in the nature of a writ of deceit, and recovering damages for the fraud; and (2.) An action on the common indebitatus count for money had and received, and recovering the full amount of the debt.

Generally speaking, the first of these two remedies, viz., an action to recover damages arising from fraud, will lie in every case of fraud; but if the plaintiff chooses to disaffirm the contract on the ground of fraud, he may then bring the second form of action, viz., an action on the common indebitatus count (Neate v. Harding, 6 Ex. 349). But some act of disaffirmance must in every case precede the commencement of the latter form of action. Smith v. HodM

FRAUD-continued.

son. 4 T. R. 211; 2 Sm. L. C. 119, and notes.

A false warranty and a misrepresentation being often difficult to distinguish, it is customary in practice to join a count for fraud with the count for a breach of warranty where it is doubtful whether a warranty can be proved.

There is, however, a limit to the right of bringing the first action, i.e., an action on the case in the nature of deceit, it being a rule of the Common Law that such an action will not lie against a principal for the fraudulent representations of his agent, the principal not having either expressly or impliedly authorized the agent to make the representations (Cornfoot v. Fowke, 6 M. & W. 358); and therefore an incorporated company cannot as such be made liable in this action for the false representations of its directors, the company not having authorized the directors to make the representations (Western Bank of Scotland v. Addie, L. R. ì S. & D. 162), the remedy (if any) being against the directors only. Gerhard v. Bates, 2 El. & Bl. 487.

And there is also a limit to the right of bringing the second action, i.e., an action for money had and received, it being a rule of the Common Law that such an action will not lie if the circumstances have so far changed since the date of the contract that the parties cannot be restored to the position in which they stood before or at the time of the contract (Clarke v. Dickson, El. Bl. & El. 148); and therefore a contract, although induced by fraud, cannot be avoided it the rights of an innocent.vendee have in the meantime intervened. Queen v. Saddler's Company, 10 H. L. C. 420.

At Law, an action to recover damages arising from fraud, or (upon a disaffirmance) an action on the common indebitatus count, will lie in the following cases :

(1.) Where the defendant has stated or represented as a matter of fact (and not of opinion merely) what is untrue, knowing it to be untrue, with intent to induce the plaintiff to act upon it, and has thereby induced the plaintiff to act upon it, to his loss (Pasley v. Freeman, 3 T. R. 51);

(2.) Where the defendant has stated or represented as a matter of fact (and not of opinion merely) what is untrue, without knowing whether it is false or true, but not believing it to be true, with intent to induce the plaintiff to act upon it, and has thereby induced the plaintiff to act upon it, to his loss (Taylor v. Ashton, 11 M. & W. 401);

(3.) Where the defendant has stated or represented as a matter of fact (and not of opinion merely) what is untrue, knowing

FRAUD-continued.

it to be untrue, but from defect of memory believing at the time that it is true, with intent to induce the plaintiff to act upon it, and has thereby induced the plaintiff to act upon it, to his loss (Slim v. Croucher, 2 Giff. 37);

(4.) Where, semble, the defendant has stated or represented as a matter of opinion merely what is untrue, not believing it to be true, with intent to induce the plaintiff to act upon it, and has thereby induced the plaintiff to act upon it, to his loss;

(5.) Where the defendant has fraudulently concealed from the plaintiff some defect which it was his duty (either generally, or by reason of the special circumstances of the transaction) to disclose, with intent to induce the plaintiff to act upon the assumption of the absence of such defect, and has thereby induced the plaintiff to act upon that assumption, to his loss (Horsfall v. Thomas, 1 H. & C. 90): and

(6.) Where the defendant has falsely and fraudulently warranted a specific article sold (Langridge v. Levy, 2 M & W. 519); in which latter case (waiving the fraud) an action would lie for breach of warranty.

But such action will not lie at Law in the following cases :

(1.) Where the defendant has stated or represented as a matter of fact (and not of opinion merely) what is untrue, knowing it to be untrue, but without intent to induce the plaintiff to act upon it, although the plaintiff may have been induced thereby to act upon it, to his loss (Way v. Hearn, 13 C. B. (N.S) 292);

(2.) Where the defendant has stated or represented as a matter of fact (and not of opinion merely) what is untrue, without knowing whether it is false or true, but believing it to be true, and not being under any duty to know the contrary, with intent to induce the plaintiff to act upon it, and has thereby induced the plaintiff to act upon it, to his loss (Evans v. Collins, 5 Q. B. 804; see also title FRAUD, LEGAL WITHOUT MORAL FRAUD);

(3.) Where the defendant has stated or represented as matter of opinion merely what is untrue, believing it to be true, with intent to induce the plaintiff to act upon it, and has thereby induced the plaintiff to act upon it, to his loss. This is an application of the maxim, Caveat Emptor; and

(4.) Where the defendant has fraudulently concealed from the plaintiff some defect, which it was not the duty of the defendant (either generally, or by reason of the special circumstances of the transaction) to disclose, but on the contrary the duty of the plaintiff to discover, with

FRAUD-continued. intent to induce the plaintiff to act upon the assumption of the absence of such defect, and has thereby induced the plaintiff to act upon that assumption, to his loss. This is another application of the maxim Caveat Emptor.

As to pleading fraud at Law, the defence must be specially pleaded, although it is generally sufficient for the defendant to allege that he was induced to make the alleged contract by the fraud of the plaintiff. Where fraud is pleaded with particularity, no other fraud can be proved than that which is averred (Tuck v. Tooke, 9 B. & C. 437). Sometimes the Court orders particulars of the fraud to be delivered. Marshall v. Emperor Life Assurance Society, L. R. 1 Q. B. 35.

II. The remedies available in Equity are the following:

(1.) The Rescission of the Contract, and hereunder,

(a.) The cancellation and delivery up
of executory agreements;
(b.) The setting aside of executed
agreements;

(2.) The specific performance of the contract with or without compensation;

(3.) An injunction from profiting by the fraud; and

(4.) A declaration making the defrauding party a trustee for the party defrauded.

Every such remedy is available by bill, and by bill only. The bill must not rest upon a mere general allegation of fraud, but must state in a particular manner the details of the transaction which is impugned as fraudulent, in order that the Court may infer from that statement whether there was or not any fraud in the transaction. Gilbert v. Lewis, 1 De G. J. & S. 38. (A.) Where the remedy sought is the RESCISSION OF THE CONTRACT, whether that be for the cancellation and delivery up of executory or for the setting aside of executed agreements, the following are the general requisites to the success of the suit:

(1.) That the party against whom relief is sought can be remitted to his former position, the interests of third parties without notice of the fraud not having meanwhile intervened;

(2.) That the contract may be rescinded in toto, unless indeed it be severable in its nature, in which latter case the rescission of the fraudulent portion of it may, subject to the first requisite, be obtained (Maturin v. Tredennick, 12 W. R. 740); and

(3.) That the party to the contract is either himself the person who committed the fraud or is a privy of such person. Pulsford v. Richards, 17 Beav. 95.

FRAUD-continued.

The remedy by rescission is available in the cases of the following general character, e.g., where a brother or other person gives the intended wife a sum of money to swell her fortune, taking a bond for the repayment of the sum. Gale v. Lindo, 1 Vern. 475; and see the very similar case of Turton v. Benson, 1 P. Wms. 496.

The terms upon which a transaction is rescinded are in general upon the plaintiff doing equity. Thus, fraudulent instruments are commonly set aside on repayment by the plaintiff of the actual consideration given, with interest thereou at a reasonable rate; or they are directed to stand as a security for the moneys actually advanced with the like interest, or for what upon taking the accounts shall be ascertained to be really due. And where the transaction affects real estate, it is usual to direct a reconveyance thereof upon repayment of the purchase-moneys and all sums laid out in improvements and repairs of a permanent and substantial nature by which the present value is improved, with interest thereon from the respective times of the actual disbursements, the party in possession accounting on his part for deteriorations and for the rents received and profits made in the meantime out of the estate. But cestuis que trust in respect of the frauds of their trustees, and principals in respect of the frauds of their agents, stand upon more favourable terms, being entitled at their option to hold the defrauding person to his fraud if that is more beneficial to them, and at the same time to take the profits he has made by the fraud, or at their option to have the property re-conveyed, and interest paid at the rate of 5 per cent., instead of 4 per cent., which is the usual rate in other cases. In the case of two or more co-partners, where one of them has been induced by fraud to enter into the partnership, the terms of rescission are that his co-partner or co-partners repay him whatever he has paid, with interest thereon, and indemnify him against all liabilities incurred by him through having become and been a partner, he on his part accounting for what profits he has received out of the partnership. Where a man has been fraudulently induced to take shares in a company, he is entitled to recover his money and to have his name removed from the register, he accounting to the company for any dividends or other profits in the meantime received by him.

(B.) Where the remedy sought is the SPECIFIC PERFORMANCE OF THE CONTRACT with or without compensation, the following are the general requisites to the success of the suit:

(1.) That the actual subject-matter of

FRAUD-continued.

the contract is in substance that which it was misrepresented as being, and that the difference accordingly admits of compensation;

(2.) That the party who made the misrepresentation, being plaintiff, offers to give compensation for the variance, or being defendant, is discharged by the plaintiff from giving such compensation (see Seton v. Slade. 7 Ves. 265: 2 Wh. & Tud. L. C. 468; and Townshend v. Stangroom, 6 Ves. 328); and

(3.) That the plaintiff is himself innocent in respect of the fraud or misrepresentation.

This remedy is available in the following cases, and, either

(1.) Against one who is a party to the contract; or,

(2.) Against one who is not a party to the contract.

(1.) Against one who is a party to the contract:

(a.) Where, although the property is incorrectly described, yet the inaccuracy was known to the defendant at the time, or he inspected the property before making the purchase and relied upon his own judgment (Dyer v. Hargrave, 10 Ves. 505):

(b.) Where the vendor invited further investigation on the part of the purchaser, and gave him every facility for the same;

(c.) Where the misrepresentations are matters of opinion merely: (d.) Where the property is subject to incumbrances concealed from the purchaser, and the vendor can by paying off these make good his assertion that the property is unincumbered; and

(e.) Where the property is subject to some small rent not disclosed at the time of the contract, and the vendor may satisfy or provide for the same by some deduction from the purchase-money, or by some commutation payment. (2.) Against one who is not a party to the contract :

(a.) Where a person makes a false representation of the value of property which isagreed to be charged in favour of another person as security for a loan to some third person (Ingram v. Thorpe, 7 Hare, 67; also Burrowes v. Lock, 10 Ves. 470; Cleland v. Leech, 5 Ir. Ch. 478); and

(b.) Where the father of an intended wife promises to her intended husband to leave her a sum of

FRAUD-continued.

money by his will, and the marriage contract follows upon the faith of such promise. Barkworth v. Young, 4 Drew. 1; and see the very similar case of Hutton v. Rossiter, 7 De G. M. & G. 9 (executor).

It follows that specific performance is excluded in all cases not presenting the three general requisites enumerated above, and more especially where the property is substantially different to what it was represented as being, e.g., if it is freehold instead of copyhold, or leasehold instead of freehold, and vice versa, or if it is an underlease and not an original lease, or vice versa, and so forth.

(C.) When an INJUNCTION is the remedy sought, that remedy is in general available in the following cases :

(1.) Where a creditor of the intended husband represents to the father or other relation in loco parentis of the intended wife that the husband is not indebted to him. Neville v. Wilkinson, 1 Bro. C. C. 543.

(2.) Where a brother or other person gives the intended wife a sum of money to swell her fortune, taking a bond for the repayment of the sum. Gale v. Lindo, 1 Vern. 475; Turton v. Benson, 1 P. Wms. 496.

(3.) Where proceedings are taken at law upon an instrument which is vitiated by fraud, although the defence of fraud may be good at law. Fernyhough v. Leader, 15 L. J. (Ch.) 458.

(4.) Where the defrauding party threatens to part with or transfer property which he has fraudulently obtained, eg., by paying over moneys, negotiating securities, and such like.

(5.) Where the fraud consists in the piracy of a trade-mark.

(6.) Where a right of prospect was the inducement upon which a person took a lease, and the lessor threatens to destroy the right by buildings opposite. Piggott v. Stratton, John. 359.

(7.) Where a retiring trader who has sold the goodwill of his business, upon the express or even implied understanding not to set up the same business next door, and he nevertheless proceeds to do so.

(D.) Where the remedy sought is A DECLARATION that the defrauding person is A TRUSTEE for the defrauded person that remedy is available in the following

cases:

(1.) In the case of moneys which have been fraudulently appropriated; (2.) In the case of judgments or decrees fraudulently obtained.

It is clear that a Court of Equity cannot

FRAUD-continued.

set aside the judgment of a Court of Common Law; but it may decree the successful party who is successful through a fraud to reconvey or hold in trust for the party thereby defrauded any property or profit he may have acquired as the fruits of or under the judgment. Barnesby v. Powell, 1 Ves. 120, 285; Allen v. Macpherson, 1 Ph. 145; 1 H. L. C. 213.

In pleadings in Equity the fraud must be specifically alleged in the bill; and evidence is admissible to prove the case therein stated, and that case only. In case the fraud should not be proved, but a case for some relief be made, the bill may pray for such alternative relief. One bill may be brought against a single principal in respect of two totally distinct frauds committed by his two agents. Walsham v. Stainton, 1 De G. J. & S. 678.

In the case of the defence of purchase for value without notice of the fraud, that defence must be pleaded specially; but it is sufficient to deny the notice generally, unless particular facts are alleged as evidence of the notice, in which latter case, in addition to the plea, an answer denying the facts as specially and particularly as they are charged in the bill must accompany the plea (Pennington v. Beechey, 2 Sim & Stu. 282). And in every case of an answer being put in alone, the answer must be full, and it must also expressly set up the defence of purchase for value without notice, if that is a defence intended to be relied on.

Sometimes Law has jurisdiction in cases of fraud where Equity has none. Thus, (1.) Equity will not rescind a contract, where the parties to it cannot be restored to their respective original positions; and Law is, in that case, the only forum for redress (Great Luxembourg Ry. Co. v. Magnay, 25 Beav. 587). And again, (2.), where the party to the contract is neither the person who committed the fraud nor a privy of such person, the party defrauded can have no rescission of the contract in Equity; and unless therefore the misrepre sentation may be made good, he must seek redress at Law against the person guilty of the fraud; whence, for the fraudulent representations of the directors of a company, not being representations authorized by the company, the redress is at Law (Brockwell's Case, 4 Drew. 205). Again, (3), where a person has given a general representation of the character or credit of another, which is fraudulent, the person injured thereby, from his reliance thereon, can have no redress in Equity, but must proceed at Law in an action for damages. Whitmore v. Mackeson, 16 Beav. 128.

On the other hand, Equity has some

FRAUD-continued.

times jurisdiction where Law has none. For, in general, Courts of Equity act upon much slighter evidence of fraud than Courts of Law do, inferring it, whereas at Law it must be proved, e.g., from the condition of the injured parties in the cases of fraud enumerated above. And in the great majority of cases, although there is a remedy at Law, yet the remedy in Equity is concurrent, and it is therefore optional for the plaintiff to sue in either jurisdiction, according as he finds the remedy either more convenient or more adequate; thus in Colt v. Woollaston (2 P. Wms., 154), a bill for the mere recovery of moneys was held not demurrable, and that case has been often followed since; and in Barry v. Crosskey (2 J. & H. 30), a bill in Equity was more convenient, as avoiding a multiplicity

of actions.

FRAUD, LEGAL, APART FROM MORAL FRAUD. The question has been raised whether legal fraud, unaccompaned by moral fraud, is actionable. This question only amounts to this, whether a false representation made without knowledge that it is false, and without any dishonest intention, should make the person (who has made it) liable in damages. The question is rendered more complex where the fraud occurs under the following circumstances: A. employs B. as his agent to sell a house. C. goes to the agent, intending to buy the house, and asks B. whether there is anything objectionable about the house or the neighbourhood. B. answers-no, and honestly believes there is nothing objectionable, but A., his principal, knows that the next house has a bad reputation. C. thereupon sues A. for the false representation of B., his agent:-Held, that A. was not liable, as he did not give B. any instructions to make the misrepresentation. Cornfoot v. Fowke, 6 M. & W. 358.

FRAUDS, STATUTE OF. This is the famous stat. 29 Car. 2, c. 3, which applies as well to Real Property as to Equity and to Common Law.

I. As applying to Real Property. It enacts that all leases, &c., of lands made without writing signed by the parties or their agents lawfully authorized in writing, shall have the force of leases, &c., at will only (s. 1); except, nevertheless, leases not exceeding three years from the making thereof which reserve two-third parts at the least of the full improved value of the lands demised (s. 2); and that no lease, &c., of lands (not being copyholds) shall be assigned, &c., or surrendered, unless it be by writing, signed by the party assigning,