S. The equity doctrine of fraud extends, for certain purposes, to the violation of that class of so-called imperfect obligations which are binding on conscience, but which human laws do not and cannot ordinarily undertake to enforce : as in large variety of cases of contracts which courts of equity do not set aside, but at the same time refuse to lend their aid to enforce. 2 Kent, Comm. 39 ; 1 Johns. Ch. N. Y. 630; 1 Ball & B. Ch. Ir. 250, 251.
The following classification of frauds as a head of equity jurisdiction is given by Lord Hardwicke, 2 Ves. Ch. 155.
1. Fraud, or doles males, may be actual, arising from facts and circumstances of im position. 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 no honest fair man would accept, on the other. 3. It may be inferred from the circumstances and condition of the parties ; for it is as much against conscience to take advantage of a man's weakness or necessity as of his ignorance. 4. It may be collected from the nature and circumstances of the trans action, as being an imposition on third per sons.
9. Effect of. Fraud, both at law and in equity, when sufficiently proved and ascer tained, avoids a contract ab initio, whether the fraud be intended to operate against one of the contracting parties, or against third parties, or against the public. 1 Foublanque, Eq. 3d ed. 66, note ; 6th ed. 122, and notes ; Newland, Contr. 352.; 1 W. Blackst. 465 ; Dougl. 450 ; 3 Burr. 1909 ; 3 Ves. & B. Ch. 42 ; 3 Chitty, Com. Law, 155, 306, 698 ; 1 Schoales & L. 209 ; Verplank, Contr. passim; Domat, Lois Civ. p. 1, 1. 4, t. 6, s. 3, n. 2.
The fraud of an agent by a misrepresenta tion which is embodied in the contract to which his agency relates, avoids the contract. But the party committing the fraud cannot in any case himself avoid the contract on the ground of the fraud. Chitty, Contr. 590, and cases cited.
As to frauds in contracts and dealings, the common law subjects the wrong-doer, in several instances, to an action on the case, such as actions for fraud and deceit in contracts on an express or implied warranty of title or soundness, etc. But fraud gives no action in
any case without damage, 3 Term, 56 ; and in matters of contract it is merely a defence : it cannot in any case constitute a new con tract. 7 Ves. Ch. 211 ; 2 Miles, Penn. Rep. 229. It is essentially ad hominem. 4 Term, 337, 338.
10. In Criminal Law. Without the ex press provision of any statute, all deceitful practices in defrauding or endeavoring to defraud another of his known right, by means of some artful device, contrary to the plain rules of common honesty, are condemned by the common law, and punishable according to the heinousness of the offence. Coke, Litt.
3 b ; Dy. 295 ; Hawkins, Pl. Cr. c. 71.
In considering fraud in its criminal aspect, it is often difficult to determino whether facts in evidence constitute a fraud, or amount to a felony. It seems now to be agreed that if the property obtained, whether by means of a false token or a false pre tence, be parted with absolutely by the owner, it is a fraud; but if tho possession only he parted with, and that possession be obtained by fraud, it will be felony. Bacon, Abr. Fraud; 2 Leach, Cr. Cas.1066; 2 East, P1. Cr. 673.
11. Of those gross frauds or cheats which, as being " levelled against the public justice of the kingdom," are punishable by indictment or information at the common law, 2 East, Pl. Cr. c. 18, 4, p. 821, the following are ex amples:—uttering a fictitious bank bill, 2 Mass. 77 ; selling unwholesome provisions, 4 Blackstone, Comm.162; mala praxis of a phy sician, 1 Ld. Raym. 213 ; rendering false ac counts, and other frauds, by persons in official situations, Rex v. Bembridge, cited 2 East, 136 ; 5 Mod. 179 ; 2 Campb. 269 ; 3 Chitty..
Crim. Law 666 ; fabrication of news tending to the public injury, Starkie, Lib. 546; Hale, Swum. 132; et per Seroggs, C. J., Rex v. Har ris, Guildhall, 1680; cheats by means of false weights and measures, 2 East, P1. Cr. c. 18, 3, p. 820 ; and, generally, the fraudulent ob taining the property of another by any de ceitful or illegal practice or token (short of felony) which affects or may affect the public, 2 East, Pl. Cr. c. 18, 2, p. 818, as with the common cases of obtaining property by false pretences.