was assistance, yet the assistance was an immaterial factor in the accomplishment of the fraud, there ought, likewise, to be no estoppel- the assistance did not furnish the occasion or the opportunity for the fraud. But if the assistance was in some way essential to the success of the fraud - furnished the occasion or opportunity for it; made credible a representation which, without it, could not have been successfully made, then, if there has been a breach of some duty in rendering that assistance, estoppel will ensue.1

It is not intended at this place to deal at length with the cases illustrative of the subject. It will be sufficient for the general view which the first part of the work is intended to present that a few representative examples, taken from different branches of the law, should be shortly noted. At the same time, as the doctrine of estoppel by assisted misrepresentation has a somewhat novel appearance, it must justify its existence and be made familiar.

Principal and Agent.— I employ an agent to sell my horse and tell him not to warrant. By representing that he has sufficient authority, he sells the horse, giving a warranty. In this case there is no reason why I should be estopped from denying my agent's authority to warrant. My agent has made a misrepresentation, but he had no authority from me to do so; and

1 Happily not much originality estate to a subsequent equitable can be claimed for the phraseology. estate, where the owner has assisted The term "assisted misrepresenta- in, or connived at, the fraud which tion," and the other language em- has led," etc. Bayley, J., in another ployed, were suggested by happy case (Boyson v. Coles (1817), 6 M. & conjunction, during study, of sev- S. 24), said: "But this rule will cer eral judicial utterances. Lord Den- tainly not apply where the owner of man, in one of the early leading goods has lent himself to accredit cases (Gregg v. Wells (1839), 10 A. & the title to another person." And E. 97; 17 L. J. Q. B. 193), said: "A Grose, J., in still another case (Lickparty who negligently or culpably barrow v. Mason (1787), 2 T. R. 63), in stands by and allows another to con- which the owner of goods, by intract, on the faith and understand dorsing over a bill of lading, was ing of a fact which he can contra- held to be precluded from the right dict, cannot afterwards dispute that to stop in transitu, said: “A bill of fact in an action against the person lading carries credit with it; the whom he himself has assisted in de- consignor, by his indorsement, gives ceiving." Fry, J., in Northern Coun- credit to the bill of lading; and on ties v. Whipp (1884), 26 Ch. D. 494; the faith of that, money is ad53 L. J. Ch. 629, said: "That the vanced."

court will postpone the prior legal

I have in no way made his representation credible. Supposing, however, that in selecting the agent I had chosen a horse dealer that is, one whose usual powers are understood to include a power to warrant. In this case I ought to be estopped, because I have by the selection of my agent made the misrepresentation as to authority credible.1

Again varying the case: Suppose that I sent my agent with the horse to a fair (where it is usual to give a warranty), with instructions to sell but not to warrant, and he sold and warranted. I am in this case also precluded from denying my agent's authority to warrant, because, by allowing my agent to operate at a fair where warranties are usually given, I have made credible his misrepresentation of his authority.2

Bills and Notes.—I draw a note and leave it in my desk unsigned. It is stolen. My name is forged, and the note passed to an innocent holder. I am not estopped. I have not made credible the representation that the note was my real obligation. Varying the case: I give a friend an accommodation acceptance which he afterwards returns unused. I tear it in two (but so neatly that the severance might well be taken to have been for safer transmission through the mails) and throw it on the ground. He picks up the pieces, pastes them together, and passes the bill. I am liable; for I have by insufficient cancellation made credible the representation that the acceptance was genuine.1

Varying the case again: Suppose that the forged note is presented to me for payment, and that I forbear denouncing the forgery until after the holder's position has been damaged by the flight or change of circumstances of the forger; I am estopped by the assistance which I have rendered to the success of the fraud. Seeing "the mistake into which he had fallen,

it was my duty to be active."

Partnership.- Members of a firm, for the purpose of obtaining credit, falsely represent that I also am a member of it. I

1 See ch. XXV.

2 See ch. XXV.

3 See ch. XXV.

4 Ingham v. Primrose (1859), 28 L. J. C. P. 294. The case has been much suspected. See ch. XXV.

5 McKenzie v. British Linen Co. (1881), 6 App. Cas. 82. And see cases cited with this one in ch. XI.

6 Ramsden v. Dyson (1866), L. R. 1 H. L. 140.

am not bound.' I have not assisted the misrepresentation. Varying the case: I was at one time a member of the firm, but have ceased to be so; no notice of my withdrawal was given to persons with whom the firm used to deal; these persons continued to give credit to the firm upon the representation of the remaining parties that I was still a member; and I am liable, because my previous connection with the firm and the absence of the usual notice of dissolution have made the misrepresentation credible.2

Certificates of Shares.- Falsely claiming to be the owner of shares in a certain company I execute a transfer of them to one who believes my representation to be true. No reason is here apparent why the company should be in any way affected by my action. Varying the case: Suppose that the company had, through inadvertence, issued to me a certificate of ownership of the shares, and that my purchaser relied upon it as evi dence of my ownership; the company would now be estopped, because by its certificate it had assisted my misrepresentation and made it credible.3

Priorities. The owner of an equity of redemption, representing that he is an unincumbered owner, mortgages the estate to another person who has no notice of the first incumbrance; no ground exists for holding the first mortgagee responsible for this misrepresentation, and he is not estopped from asserting his true position. The mischief arose from the folly of the second mortgagee in taking the unsupported assertion of the mortgagor. Vary the case: Suppose that prior to the misrepresentation the mortgagor had, upon some pretext, obtained from the first mortgagee possession of the title deeds, and that he had, in support of his representation of unincumbered ownership, produced the deeds to the second mortgagee. The first mortgagee may now be estopped (it depends upon circumstances), for he has assisted the misrepresentation by handing over the title deeds.1

Trustees.— Two trustees agreed to make a loan upon mortgage, and one of them (call him No. 2) was intrusted by the

1 Marshall v. Aiken (1897), 170 Mass. 37 L. J. Q. B. 176. And see reference to this case in ch. XXIL

3; 48 N. E. R. 845.

2 See ch. XXVII.

3 Re Bahia (1868), L. R. 3 Q. B. 584;

4 See post, ch. XIX.

other with the money; No. 2 procured the mortgage to be executed by the mortgagor, who signed the usual receipt for the money; the mortgage was sent to the other trustee (No. 1), and executed by him; some of the money was kept by trustee No. 2, and was therefore never received by the mortgagor; No. 2 afterwards died; and the question arose between the surviving trustee (No. 1) and the mortgagor as to whether the latter owed the sum retained by No. 2. It was held that the mortgagor was estopped by the acknowledgment upon the mortgage. He had enabled No. 2 to represent to No. 1 that he (the mortgagor) had received the whole amount, and had thus prevented discovery of the fraud.'

Ostensible Ownership.-There are very many cases in which estoppel is due to assisted misrepresentation by ostensible ownership. That is to say, the true owner of property may be estopped from asserting his title by enabling some other person to successfully represent himself as the owner, and thus to deceive an innocent purchaser.

Where the true owner has really transferred the title, and it has fraudulently been passed on to an innocent transferee, the true owner may also be said to be estopped. But that case can be viewed as one in which the purchaser, having actually got the estate in the property, is entitled to hold it without reference to estoppel, as against a merely equitable claimant. Whichever ground may be thought to be the true one, the result, at all events, is unquestioned.2

Estoppel must clearly be invoked, however, where not the title itself, but the appearance of it only, has been conferred upon the fraudulent grantor-for example, by transferring to him for particular purpose a bill of lading. In such case it is impossible for the innocent purchaser to say that he has any title at all; and his position must be maintained by estoppel, grounded upon the misrepresentation of the custodian of the bill and the assistance rendered by its real owner. Many such cases will be found in subsequent chapters.3

And estoppel must be appealed to where, although the title

1 West v. Jones (1851), 1 Sim. (N. S.) 205. And see London v. Suffield (1897), 2 Ch. 608; 66 L. J. Ch. 790.

2 The case becomes more difficult

of solution when the purchaser takes (that which is still called) an equitable estate. See ch. XVIII.

3 Post, chs. XVII to XXVI.

itself has been vested in a trustee, the person misled by the appearance of beneficial ownership is not a sub-purchaser, but a creditor of the trustee. Usually a creditor can seize such estates only as his debtor in reality owns; and if the debtor be a trustee, his creditors are not commonly entitled to levy upon the trust estate. It has been held, however, in a great many cases that if the property has been transferred to the debtor, in order that by his appearance of financial strength he may obtain credit, the true owner may be estopped from setting up his beneficial title against creditors. For estoppel in such cases it is not sufficient that the title to the property has been vested in the name of the debtor; so to hold would be to add a new terror to trusteeship. Intent to mislead creditors must

more or less clearly appear.5

3

Concealment of an incumbrance upon the debtor's own property, or concealment of a debt due by him,7 may, upon similar grounds, have the effect of estopping the incumbrancer or creditor from asserting his claim. The reputed ownership clause of the English bankruptcy act has given statutory approbation to this principle.

1 Re General Horticultural Co. (1886), 32 Ch. D. 512; 55 L. J. Ch. 608; Badeley v. Consolidated (1888), 38 Ch. D. 238; 57 L. J. Ch. 468; Campbell v. Gemmell (1890), 6 Man. 353; Case v. Bartlett (1898), 12 Man. 280; Root v. French (1835), 13 Wend. 570 (N. Y.); Bryant v. Whitcher (1872), 52 N. H. 158. See as to creditors of a shareholder in a company, after he has executed a transfer, but before it is registered, ch. II.

2 Tapp v. Lee (1803), 3 Bos. & P. 367; Corbett v. Brown (1831), 8 Bing. 33; Graham v. Thompson (1892), 55 Ark. 296; 18 S. W. R. 58.

Breeze v. Brooks (1886), 71 Cal. 169; 9 Pac. R. 670; 11 id. 885; Roberts v. Trammel (1896), 15 Ind. App. 445; 44 N. E. R. 321.

4 Kern v. Day (1893), 45 La. Ann. 71; 12 S. R. 6; Girault v. A. P. Hotaling Co. (1893), 7 Wash. 90; 34 Pac. R. 471; Hill v. Van Sandt (1895), 1 Kan. App. 367; 40 Pac. R. 676.

5 Trenton v. Duncan (1881), 86 N. Y. 221; Kingman v. Graham (1881), 51 Wis. 232; Leete v. State Bank (1893), 115 Mo. 184; 21 S. W. R. 788, 793; Ingals v. Ferguson (1894), 59 Mo. App. 299; Warner v. Watson (1895), 35 Fla. 402; 17 S. R. 654; McClain v. Abshire (1895), 1 Mo. App. R. 754; 63 Mo. App. 333; Iseminger v. Criswell (1896), 98 Iowa, 382; 67 N. W. R. 289. 6 Trenton Bank v. Duncan (1881), 86 N. Y. 221; Curtis v. Wilcox (1892), 91 Mich. 229; 51 N. W. R. 992; Brayton v. Harding (1894), 56 Ill. App. 362; Wachusett v. Sioux City (1894), 63 Fed. R. 366; Bacon v. Harris (1894), 62 Fed. R. 99; Baker v. Seavey (1895), 163 Mass. 522; 40 N. E. R. 863; Sylvester v. Henrich (1895), 93 Iowa, 489; 61 N. W. R. 942.

7 Powers v. Large (1889), 75 Wis. 494; 43 N. W. R. 1112.

8 See reference to this statute in ch. XL