In the same case Crompton, J., more cautiously said:

"I do not think that an estoppel of this kind is always odious; in many cases I think it extremely equitable to act upon that doctrine."

"Estoppels are odious, and the doctrine should never be applied without a necessity for it."

But in the following year he said:2

"I do not wish to speak against estoppels: for I do not know how the business of life could go on unless the law recognized their existence."

The true justification for estoppel by personal misrepresentation is clearly put in a note in the eleventh edition of Coke upon Littleton:

"No man ought to allege anything but the truth for his defense; and what he has alleged once is to be presumed to be true, and therefore he ought not to contradict it; for as it is said in the 2 Inst. 272, Allegans contraria non est audiendus." 3

Blackburn, J., well states the matter: "

"Now sometimes there is a degree of odium thrown upon the doctrine of estoppel, because the same word is used occasionally in a very technical sense; and the doctrine of estoppel in pais has been thought to deserve some of the odium of the more technical classes of homologation. But the moment the doctrine is looked at in its true light it will be found to be a most equitable one, and one without which in fact the law of the country could not be satisfactorily administered. When a person makes to another a representation, I take it upon myself to say such and such things do exist,' and the other man does really act upon that basis, it seems to me that it is of the very essence of justice that, between these two parties, their rights should be regulated, not by the real state of the facts, but by that conventional state of facts which the two parties agree to make the basis of their action; and that is what I apprehend is meant by estoppel in pais or homologation."

The rationale of estoppel by misrepresentation is put in epigrammatic form by Mr. Justice Swayne of the Supreme Court of the United States, as follows:5

"It proceeds upon the ground that he who has been silent as to his alleged rights when he ought in good faith to have spoken, shall not be heard to speak when he ought to be silent."

And little can be added in justification of estoppel to what was said by Perley, C. J., in distinguishing the "legal" estoppels in pais of Lord Coke's time from the more modern "equitable estoppel: "6

1 Baxendale v. Bennett (1878), 3 Q. Blackburn on Sales, 162. Distinction B. D. 529; 47 L. J. Q. B. 624.

2 Simm v. Anglo-American (1879), Q. B. D. 202; 49 L. J. Q. B. 392. 3 Coke, Lit., L. 3, c. 12, § 667, note 1. 4 Burkinshaw v. Nicolls (1878), 3 App. Cas. 1026; 48 L. J. Ch. 179, approved in Re London Celluloid Co. (1888), 39 Ch. D. 202; 57 L. J. Ch. 843; Tomkinson v. Balkis (1891), 2 Q. B. 623; 60 L. J. Q. B. 558. And see

should be made between estoppel by deed and estoppel by misrepresen tation, the latter of "which is founded upon reason:" Per Jessel, M. R., in General Finance Co. v. Liberator (1878), 10 Ch. D. 20. And see Everest & Strode on Estoppel, 11-15. 5 Morgan v. Railroad (1877), 96 U. S. 720.

6 Horn v. Cole (1868), 51 N. H. 290,

"The legal estoppel shuts out the truth and also the equity and justice of the individual case, on account of the supposed paramount importance of rigorously enforcing a certain and unvarying maxim of the law. For reasons of general policy a record is held to import incontrovertible verity; and for the same reason a party is not permitted to contradict his solemn admission by deed. And the same is equally true of legal estoppels by matter in pais. For this reason because legal estoppels, whether by record, deed, or matter in pais, shut out proof of the truth and justice of individual cases, they have been called odious and have been construed with much strictness against parties that set them up. Equitable

estoppels are admitted on the exactly opposite ground of promoting the equity and justice of the individual case, by preventing the party from asserting his rights under a general technical rule of law when he has so conducted himself that it would be contrary to equity and good conscience for him to allege and prove the truth."

The learned author of Smith's Leading Cases, not perceiving the distinction of Perley, C. J., limits the application of the word odious in this way:1

"The truth is, that the courts have been for some time favorable to the utility of the doctrine of estoppel, hostile to its technicality. Perceiving how essential it is to the quick and easy transaction of business that one man should be able to put faith in the conduct and representations of his fellow, they have inclined to hold such conduct and such representations binding in cases where a mischief or injustice would be caused by treating their effect as revocable. At the same time they have been unwilling to allow men to be entrapped by formal statements and admissions, which were perhaps looked upon as unimportant when made, and by which no one ever was deceived or induced to alter his position; such estoppels are still as formerly considered odious."

But this is equivalent to saying that estoppels are odious only in cases in which there is no estoppel; for if "no one ever was deceived or induced to alter his position," one of the essential conditions of the existence of estoppel is absent.2

HISTORY OF ESTOPPEL BY MISREPRESENTATION.

In equity it could be said as early as the year 1801 that it

was

"a very old head. . . that if a representation is made to another person going to deal in a matter of interest upon the faith of that representation, the former shall make that representation good if he knows it to be false." 3

Still earlier (in 1787) Mr. Justice Ashhurst, in a case at law, said:

"We may lay it down as a broad general principle that whenever one of two innocent persons must suffer by the act of a third, he who enables such person to occasion the loss must sustain it."

291, 292. See also Stevens v. Dennett (1872), 51 N. H. 333; Am. & Eng. Ency. (2d ed.), vol. II, 388, n. 3.

1 10th ed., vol. II, 840. See also Am.

& Eng. Ency. (2d ed.), vol. II, 388, n. 2.

2 See post, ch. II.

3 Per Lord Eldon, Evans v. Bicknell (1801), 6 Ves. 183.

4 Lickbarrow v. Mason (1787), 2 T. R. 70.

Although not then so recognized, these doctrines were based upon principles which in scientific classification must be referred to estoppel. The equity doctrine of restitution has indeed quite faded away, leaving estoppel in almost undisputed possession of the field. Mr. Justice Ashhurst's dictum is still much quoted, and perusal of a subsequent chapter1 will demonstrate that it was a very notable effort to formulate the principles of the law of estoppel by assisted misrepresentation.

It is very remarkable that although these principles were blocked out in 1787, yet it was not until fifty years afterwards (until Chief Justice Denman's famous sentence in Pickard v. Sears) that courts of law first became thoroughly aware that there was a principle of decision, consonant with their system, which enabled them to apply that equity which was essential to the proper administration of justice. It is not asserted that Pickard v. Sears was the first case of its kind,' but it is indubitable that that decision marks an epoch in the history of the development of the law, and gave to the idea of estoppel by misrepresentation marked vitality and impetus. It formulated a principle which has spread into almost every department of the law. The principle was this:

"The rule is clear that where one by his words or conduct wilfully 4 causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time." 5

Of this common-law rule Vice-Chancellor Bacon, in 1881, said:6

The common-law doctrine of estoppel was, as I have said, a device which the common-law courts resorted to at a very early period to strengthen and lengthen their arm; and not venturing to exercise an equitable jurisdiction over the subject before them, they did convert their own special pleading tactics into an instrument by which they could obtain an end, which the court of chancery without any foreign assistance did at all times, and I hope will at all times put into force in order to do justice."

1 See ch. XIV.

2 (1837) 6 A. & E. 469.

3 On the contrary, that case avowedly proceeds upon the earlier cases of Heane v. Rogers (1829), 9 B. & C. 586, and Graves v. Key (1832), 3 B. & Ad. 318, note (a). The present writer would also point to Pickering v. Busk, in 1812 (15 East), as a case in some respects more important and deserving of distinction than

Pickard v. Sears. See also the American cases prior to Pickard v. Sears, of Stephens v. Baird (1828), 9 Cowen, 274 (N. Y.); Welland v. Hathaway (1832), 8 Wend. 480 (N. Y.).

4 This word "wilfully" will be discussed hereafter.

5 Pickard v. Sears (1837), 6 A. & E. 474.

6 Keate v. Phillips (1881), 18 Ch. D. 577; 50 L. J. Ch. 664.

To the present-day student it would appear that both courts were slowly evolving and disengaging the principles of estoppel. The court of equity no doubt was less trammeled than its sister courts by traditions and "cakes of custom;" but it may fairly be said that the dicta of Mr. Justice Ashhurst and Chief Justice Denman and Lord Ellenborough' are the most notable contributions to the law of estoppel that are to be found in any of the English courts.

1 In Pickering v. Busk (1812), 15 East, 45.

CHAPTER II.

CONDITIONS OF ESTOPPEL BY MISREPRESENTATION.

The essentials of estoppel by misrepresentation will be considered under the following headings:

1. There must be a misrepresentation.

2. Either (1) by the estoppel-denier (personal misrepresentation); or (2) by some person whose representation he has made credible (assisted misrepresentation).

3. There must be a disregard of some duty.

4. The misrepresentation must be as to fact or law-not merely of intention or opinion.

5. The misrepresentation must be of something material. 6. Fraud or bad faith in the estoppel-denier is not essential-an innocent misrepresentation will estop.

7. Negligence (carelessness) is sometimes essential.

8. The estoppel-asserter must be a person to whom immediately or mediately the misrepresentation was made.

9. The estoppel-asserter must, ou the faith of the misrepresentation, change his position prejudicially.

10. The estoppel-denier must have reasonable grounds for anticipating some change of position upon the faith of the misrepresentation.

11. The change of position must be reasonably consequent upon the misrepresentation or the assistance.

A discussion of each of these will supply a comprehensive view of the subject. Afterwards will follow some applications of them to various branches of the law.

The Supreme Court of the United States has lately summed up the points which a plaintiff in an action for the rescission of a contract must establish:1

1. That the defendant has made a representation in regard to a material fact.

2. That such representation is false.

1 Southern Development Co. v. Silva (1888), 125 U. S. 247, 250. See Pollock on Contracts (6th ed.), 542.