If the misrepresentation is made without knowledge of the transaction, but it is rep resented to be within the party's knowledge, it is a fraud; Upchurch v. Mizell, 50 Fla. 456, 40 South. 29; so if it was of a fact with in the party's means of knowledge and he had, in fact, no knowledge ; Hindman v. Bank, 112 Fed. 931, 50 C. C. A. 623, 57 L. R. A. 108. If there was no intent to deceive, and the party derived no benefit, he is not liable; Jalass v. Young, 3 Pa. Super. Ct. 422.
Equitable doctrine of fraud. It is some times inaccurately said that such and such transactions amount to fraud in equity, though not in law ; according to the pop ular notion that the law allows or overlooks certain kinds of fraud which the more con scientious rules of equity condemn and pun ish. But, properly speaking, fraud in all its shapes is as odious in law as in equity. The difference is that, as the law courts are con stituted, and as it has been found in centu ries of experience that it is convenient they should be constituted, they cannot deal with fraud otherwise than to punish it by the in fliction of damages. All those manifold vari eties of fraud against which specific relief, of a preventive or remedial sort, is required for the purposes of substantial justice, are the subjects of equity and not of law juris diction.
What constitutes a case of fraud in the view of courts of equity, it would be dif ficult to specify. It is, indeed, part of the equity doctrine of fraud not to define it, not to lay down any rune as to the nature of it, lest the craft of men should find ways of committing fraud which might escape the limits of such a rule or definition. "The court very wisely hath never laid down any general rule beyond which it will not go, lest other means for avoiding the equity of the court should be found out." Per Hard wicke, C., in 3 Atk. 278. It includes all acts, omissions, or concealments which in volve a breach of legal or equitable duty, trust or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. "It may be stated as a general rule that fraud consists in anything which is calculated to deceive, whether it be a single act or combination of circumstances, whether it be by suppression of the truth or suggestion of what Is false ; whether it be by direct falsehood, or by innuendo, by speech or by silence, by word of mouth or by a look or a gesture. Fraud of this kind may be defined to be any artifice by which a person is deceived to his disadvantage."
Bisph. Eq. § 206.
It is said by Lord Hardwicke, 2 Ves. Ch. 155, that in equity fraud may be presumed from circumstances, but in law it must be proved. His meaning is, unquestionably, no more than this : that courts of equity will grant relief upon th'e ground of fraud es tablished by a degree of presumptive evi dence which courts of law would not deem sufficient proof for their purposes; that a higher degree, not a different kind, of proof may be required by courts of law to make out what they will act upon as fraud. Both tribunals accept presumptive or circumstan tial proof, if of sufficient force. Circum stances of mere suspicion, leading to no cer tain results, will not, in either, be held suffi cient to establish fraud.
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 a 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 39 ; Parker v. Grant, 1 Johns. Ch. (N. Y.) 630; 1 Ball & B. 250. The proposition that "fraud must be proved and not assumed," is to be under stood as affirming that a contract, honest and lawful on its face, must be treated as such until it is shown to be otherwise by evi dence, either positive or circumstantial. Fraud may be inferred from facts calculated to establish it ; per Black, C. J., in Kaine v. Weigley, 22 Pa. 179; Jones v. Lewis, 148 ? Pa. 234, 23 Atl. 985 ; Walker v. Collins, 59 Fed. 70, 8 C. C. A. 1.
The following classification of frauds as a head of equity jurisdiction is given by Lord Hardwicke in Chesterfield v. Janssen, 2 Ves. Ch. 125; 1 Atk. 301; 1 Lead. Cas. Eq. 428.
1. Fraud, or Bolus maim, 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 band, and no honest or 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 transaction, as being an imposition on third persons.