KFLCC Kingdom Law 2nd Ed.

521

FRAUD

FRATERNAL

roe Mercantile Co. v. Arnold, 108 Ga. 449, 34 S. E. 176. Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconven ience or loss to the other. Civil Code La. art. 1847. Fraud, in the sense of a court of equity, properly includes all acts, omissions, and con cealments which involve a breach of legal or equitable duty, trust, or confidence justly re posed, and are injurious to another, or by which, an undue and unconscientious ad vantage is taken of another. 1 Story, Eq. Jur. § 187. Synonyms. The term "fraud" is sometimes used as synonymous with "covin," "collusion," or "deceit." But distinctions are properly taken in the meanings of these words, for which ref erence may be had to the titles COVIN; COIXTJ SION ; DECEIT. Classification. Fraud is either actual or constructive. Actual fraud consists in deceit, artifice, trick, design, some direct and active operation of the mind; it includes cases of the intentional and successful employment of any cunning, deception, or artifice used to circum vent or cheat another; it is something said, done, or omitted by a person with the design of perpetrating what he knows to be a cheat or deception. Constructive fraud consists in any act of commission or omission contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another. Or, as otherwise defined, it is an act, statement or omission which operates as a virtual fraud on an individual, or which, if generally permitted, would be prejudicial to the public welfare, and yet may have been unconnected with any selfish or evil design. Or, according to Story, con structive frauds are 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 violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with actual fraud. 1 Story, Eq. Jur. § 258. And see, generally, Code Ga. 1882, § 3173; People v. Kelly, 35 Barb. (N. Y.) 457; Jackson v. Jackson, 47 Ga. 99; Hatch v. Barrett, 34 Kan. 223, 8 Pac. 129; Forker v. Brown, 10 Misc. Rep. 161, 30 N. Y. Supp. 827; Massachusetts Ben. L. Ass'n v. Robinson, 104 Ga. 256, 30 S. E. 918, 42 L. R, A. 261; Haas v. Sternbach, 156 111. 44, 41 N. E. 51; Newell v. Wagness, 1 N. D. 62, 44 N. W. 1014; Carty v. Connolly, 91 Cal. 15, 27 Pac. 599. Fraud is also classified as fraud in fact and fraud in law. The former is actual, positive, intentional fraud. Fraud disclosed by matters of fact, as distinguished from constructive fraud or fraud in law. McKibbin v. Martin, 64'Pa. 356, 3 Am. Rep. 588; Cook v. Burnham, 3 Kan. App. 27, 44 Pac. 447. Fraud in law is fraud in contemplation of law; fraud implied or inferred by law; fraud made out by con struction of law, as distinguished from fraud found by a jury from matter of fact; con structive fraud (q. v.) 'See 2 Kent, Comm. 512-532; Delaney v. Valentine, 154 N. Y. 692, 49 N. E. 65; Burr v. Clement, 9 Colo. 1, 9 Pac. 633. Fraud is also said to be legal or positive. The former is fraud made out by legal construc tion or inference, or the same thing as construc tive fraud. Newell r. Wagness, 1 N. D. 62, 44

brethren, and the souls of those that were dead, Cowell.

FRATERNAL. Brotherly; relating or belonging to a fraternity or an association of persons formed for mutual aid and benefit, but not for profit —Fraternal 'benefit association. A society or voluntary association organized and carried on for the mutual aid and benefit of its mem bers, not for profit; which ordinarily has a lodge system, a ritualistic form of work, and a representative government, makes provision for the payment of death benefits, and (sometimes) for benefits in case of accident, sickness, or old age, the funds therefor being derived from dues paid or assessments levied on the members. National Union v. Marlow, 74 Fed. 778, 21 C. C. A. 89; Walker v. Giddings, 103 Mich. 344, 61 N. W. 512.—Fraternal insurance. The form of life (or accident) insurance furnished by a fraternal beneficial association, consisting in the payment to a member, or his heirs in case of death, of a stipulated sum of money, out of funds raised for that purpose by the payment of dues or assessments by all the members of the association. FRATERNITY. In old English law. "A corporation is an investing of the people of a place with the local government thereof, and therefore their laws shall bind strangers; but a fraternity is some people of a place united together in respect to a mystery or business into a company, and their laws and ordinances cannot bind strangers." Cuddon v. Eastwick, 1 Salk. 192. FRATRES CONJTJRATI. Sworn broth ers or companions for the defense of their sovereign, or for other purposes. Hoved. 445. FRATRES PYES. In old English law. Certain friars who wore white and black garments. Walsingham, 124. FRATERNIA. A fraternity or brother hood. FRATRICIDE. One who has killed a brother or sister; also the killing of a broth er or sister. FRAUD. Fraud consists of some deceit ful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As dis tinguished from negligence, it is always posi tive, intentional. Maher v. Hibernia Ins. Co., 67 N. Y. 292; Alexander v. Church, 53 Conn. 561, 4 Atl. 103; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 7 L. R. A. 702'; Moore v. Crawford, 130 U. S. 122, 9 Sup. Ct 447, 32 L. Ed. 878; Fechheimer v. Baum (C. C.) 37 Fed. 167; U. S. v. Beach (D. C.) 71 Fed. 160; Gardner v. Heartt, 3 Denio (N. Y.) 232; Mon FRATRIAGE. A younger brother's In heritance.