There are five necessary requisites in an action for deceit. A failure to prove any one of the following five elements will be fatal to the plaintiff's cause in an action of this character:

(1) There must be a misrepresentation of material fact:

(2) The defendant (in the action for deceit) must have known the statements made to be false:

(3) The plaintiff (in the action for deceit) must not have known the statements made to be false, but must have believed them to be true:

1 Fraud is a term of very wide application and has been so carelessly used by writers and judges as to render the exact meaning of the term very indefinite. Fraud is divided into actual fraud and constructive fraud. Actions of deceit would generally fall under the former division. Some definitions of fraud which have been given are as follows: "Actual or positive fraud consists in deception, intentionally practiced to induce another to part with property or to surrender some legal right, and which accom-Jhshes the end designed." Judd vs. Weber, 55 Conn., 267, 277; 4th Atl., 40. "It may be safely averred, that all deceitful practices in depriving or endeavoring to deprive another of his known right by means of some artful device or plan contrary to the plain rules of common honesty, is fraud." Mitchell vs. Kintzer, 5 Pa. St., 216, 219; 87 Am. Dec, 408.

(4) The defendant must have made the statement with the intention of having it acted upon: and

(5) The plaintiff must have actually acted upon the statement made by the defendant, and as a result been damaged thereby.