Blacks Law Dict. 1st ed

260

CONSTRUCTIVE TOTAL LOSS

CONSTRUCTION"

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. Civil Code Cal. § 1573. By constructive frauds are meant such acts or contracts as, though 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 vio late private or public confidence, or to im pair 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. 1 Story, Eq. Jur. § 258. CONSTRUCTIVE LARCENY. One where the felonious intent to appropriate the goods to his own use, at the time of the as portation, is made out by construction from the defendant's conduct, although, origi nally, the taking was not apparently felo nious. 2 East, P. C. 685; 1 Leach, 212. CONSTRUCTIVE MALICE. Implied malice; malice inferred from acts; malice imputed by law; malice which is not shown by direct proof of an intention to do injury, (express malice,) but which is inferentially established by the necessarily injurious re sults of the acts shown to have been com mitted. CONSTRUCTIVE NOTICE. Informa tion or knowledge of a fact imputed by law to a person, (although he may not actually have it,) because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of in quiring into it. CONSTRUCTIVE TAKING. A phrase used in the law to characterize an act not amounting to an actual appropriation of chattels, but which shows an intention to convert them to his use; as if a person in trusted with the possession of goods deal? with them contrary to the orders of t&<> owner. CONSTRUCTIVE TOTAL LOSS. In marine insurance. This occurs where the loss or injury to the vessel insured does not amount to its total disappearance or destruc tion, but where, although the vessel still re

made by the law) works no injury. Co. Litt. 183; Broom, Max. 603. The law will make such a construction of an instrument as not to injure a party. CONSTRUCTION. The process, or the art, of determining the sense, real meaning, or proper explanation of obscure or ambigu ous terras or provisions in a statute, written instrument, or oral agreement, or the appli cation of such subject to the case in question, by reasoning in the light derived from ex traneous connected circumstances or laws or writings bearing upon the same or a con nected matter, or by seeking and applying the probable aim and purpose of the pro vision. It is to be noted that this term is properly distinguished fiom interpretation, although the two are often used synonymously. In strictness, interpretation is limited to explor ing the written text, while construction goes beyond and may call in the aid of extrinsic considerations, as above indicated. CONSTRUCTION, COURT OP. A court of equity or of common law, as the case may be, is called the court of construc tion with regard to wills, as opposed to the court of probate, whose duty is to decide whether an instrument be a will at all. Now, the court of probate may decide tliat a ghen instrument is a will, and yet the court of construction may decide that it has no operation, by reason of perpetuities, illegal ity, uncertainty, etc. Wharton. CONSTRUCTIVE. That which is es tablished by the mind of the law in its act of construing facts, conduct, circumstances, or instruments; that which has not the char acter assigned to it in its own essential nat ure, but acquires such character in conse quence of the way in which it is regarded by a rule or policy ot law; hence, inferred, im plied, made out by legal interpretation. CONSTRUCTIVE ASSENT. An as sent or consent imputed to a party from a construction or interpretation of his con duct; as distinguished from one which he actually expresses. CONSTRUCTIVE BREAKING INTO A HOUSE. A breaking made out by con struction of law. As where a burglar gains an entry into a house by threats, fraud, or conspiracy. 2 Russ. Crimes, 9, 10. CONSTRUCTIVE FRAUD. Con structive fraud consists (1) in any breach of duty which, without an actually fraudulent

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