Standing by.-Perhaps the most familiar form of assisted misrepresentation is that in which an owner of property stands by while it is sold by another person to an innocent purchaser. Since Pickard v. Sears1 it might well be thought to be clear that an owner of property would be estopped, as against an innocent purchaser of it, were he to stand by and allow it to be sold without disclosing his title. Ritchie, C. J., of the Canadian Supreme Court, however, in a case involving the validity

"As to the estoppel claimed, I do not think that the mere fact of knowing of the sale and not forbidding it or protesting against it would estop them from contesting its validity; nor the mere fact of questing D. to attend the sale and bid the property in. admission amounts to is that the plaintiffs knew of the sale, and did not forbid or protest against it. This in my opinion they were not bound to do; there was no duty to speak."

The learned judge was of opinion that there was no estoppel because the defendant (the purchaser) did not know that the plaintiffs (the owners) were represented at the sale, and that, therefore,

"the defendant was (not) at all influenced by what the . . plaintiffs did or omitted. So far as the defendant is concerned there is no representation made to her at all, and certainly none made with the intent that it should be acted upon by her. In other words, the defendants were never deceived, or induced to alter their position, by any statement or act of the plaintiffs. . . . Therefore in this case the two great ingredients. are wanting, namely, that the plaintiff intended that the defendant should act on the faith of his act or representation, nor that the defendant did so act."

With deference it is submitted that cases of personal and assisted misrepresentation are here confounded together, and the conditions of the former applied to a case of the latter. When I stand by and allow another to sell my property as his, the purchaser may truly say that he did not act upon my misrepresentation, for he acted upon the misrepresentation of his vendor. But that is only to say that the case is not one of personal misrepresentation. That there may be estoppel by the misrepresentation of another, in which the estoppel-denier has assisted, is beyond dispute; and the only question can be, does an owner assist in such a misrepresentation by standing by, and giving no hint of his title? The decision, it is respectfully submitted, must be supported, if at all, by the argument that the sale was one for taxes; one in which its validity depended upon its regularity; and that there was no representation of regularity (as to which the owner might be, and indeed was, quite as uninformed as the purchaser) by not objecting at the time of the sale.1

Hoig v. Gordon is a suggestive case upon the line under consideration. It would have been otherwise decided were the judgment just cited to be taken as the law.

"Where for ten years a wife concealed from the public her relation to her husband, and allowed him to live with another woman as his wife under an assumed name- the real wife living in the neighborhood, and receiving from them her support, - it was held that she was precluded from claiming dower out of land purchased during this period in the husband's assumed name, and afterwards sold by him and his supposed wife to a purchaser who bought in good faith and without any notice of the real relationship of the parties.'

1 As to irregularities see Claxton v. Shibley, 9 Ont. 451; Stone v. Eng. stran (R. I.), 32 Atl. R. 916; Neal v. Robinson (Ky.), 28 S. W. R. 335. Bidding at a sale will not mislead if

your position and objection be first clearly stated. Lines v. Grange (1854), 12 U. C. Q. B. 209.

2 (1870) 17 Gr. 599. And see Watson v. Threlkeld (1798), 2 Esp. 637.

Everyone is familiar with the maxim Sic utere tuo ut alienum non lædas, in its application to property of physical character. It is not dissimilar from Mr. Herbert Spencer's definition of the compromise which the social state imposes between "that positive element implied by each man's recognition of his claims to unimpeded activities and the benefits they bring," on the one hand, and "that negative element implied by the consequences of limits which the presence of other men, having like claims, necessitates," on the other. His formula is this: "Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man." What is the relation of such rules and maxims to the realm of business and commerce?

Man in the whirl and complexity of modern conditions and engagements is far less an individual than a member of a society owing duties to his fellow members. He is a unit, no doubt, but one having relations and associations productive of responsibilities. As in the physical domain he owes a duty of carefulness and circumspection and behavior, regulated by the peculiarities of his personal environment; and as in the region of morals he is debtor (although sometimes without legal enforcement) to his fellowmen; so also in the affairs of commerce and business he is obliged to observe and have some degree of regard for the interests of others. He cannot always safely "do with his own as he pleases."

That the duties thus imposed are not absolute but relative to the conditions which may obtain from time to time is but to

1 Justice, 37.

2 Id. 46.

& N. 781; 26 L. J. Ex. 171, approved in Potter v. Faulkner (1861), 1 B. & S.

3 See Degg v. Midland (1857), 1 H. 800; 31 L. J. Q. B. 30.

say that social rules are not yet finally codified; that advancement and progress and improvement have not yet ceased. Indeed, as we observe the rapid development of the law of estoppel, and the increasing list of duties which is ever being lengthened by the necessities of later activities, we see that not only are the relations of life still widening out into greater complexities, but that the laws of altruism and mutual aid are making rapid head as against those of mere individualism.1

In "Justice" the same writer says: "For let us remember that there is now recognized, by law and by public conscience, the truth that not only actual physical mischief to others, but also potential physical mischief to others, are flagitious (p. 70). "With the progress of civilization the administration of justice continues to extend and to become more efficient" (p. 208). "Thus while in uncivilized societies, and in early stages of civilized societies, the individual is left to defend his own life, liberty and property as best he may, in later stages the community through its government more and more undertakes to defend them for him " (p. 153).

1 In the same sense, Mr. Herbert in relation to those more difficult Spencer, in his Data of Ethics questions of conduct, arising from (pp. 238, 239), says: "Social evolution the ever-increasing complexity of has been bringing about a state in social life." which the claims of the individual to the proceeds of his activities and to such satisfactions as they bring are more and more positively as serted; at the same time that insistance on others' claims, and habitual respect for them, have been increasing.... Regard for the wellbeing is increasing pari passu with the taking of means to secure personal well-being." Again (p. 207): "And here as before each is personally interested in securing good treatment of his fellows by one another. For in countless ways evils are entailed on each one by the prevalence of fraudulent transactions." In his "Ecclesiastical Institutions" (p. 825) in speaking of the future of the priest (had he been thinking of estoppel he would have said "judge ") he says: "At the same time insistance on duty, which has formed an increasing element in religious ministration, may be expected to assume a marked predominance and a wider range.

All matters concerning individual and social welfare will come to be dealt with, and a chief function of one who stands in the place of a minister (judge) will be not so much that of emphasizing precepts al ready accepted, as that of develop ing men's judgments and sentiments

And the process has been recently well described by Alexander Sutherland (The Origin and Growth of the Moral Instinct, vol. II, p. 22): “We know, as a matter of fact, that in the development of human society it is not law which gives rise to duty, nor duty which is the foundation of morality; but that morality originates in sympathy; crystallizes vaguely into duty; and duty, thus formed, finds a voice and a definite scope in law. Then law by reactive force gives new strength to duty, and duty adds continuity to sympathy."

"AN APPROPRIATE MEASURE OF PRUDENCE."

Sir Frederick Pollock in his work on Torts says:1

"The whole modern law of negligence, with its many developments, enforces the duty of fellow-citizens to observe, in varying circumstances, an appropriate measure of prudence to avoid causing harm to one another. The situations in which we are under no such duty appear at this day not as normal but as exceptional. A man cannot keep shop, or walk into the street, without being entitled to expect, and bound to practice observance of this kind, as we shall more fully see hereafter. If there exists then a positive duty to avoid harm, much more must there exist, whether it be so expressed in the books or not, the negative duty of not doing wilful harm, subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is concerned, namely, to abstain from wilful injury; to respect the property of others; and to use due diligence to avoid causing harm to others, are all alike of a comprehensive nature. As our law of contract has been generalized by the doctrine of consideration and the action of assumpsit, so has our law of civil wrongs, by the wide and various applications of actions on the case."

Widely comprehensive rules of such character find multitudinous illustration: You may construct reservoirs or fish-ponds, but You may burn rubbish-heaps or enjoy bonfires, but— You may build a factory or play a piano, but-2

What is "an appropriate measure of prudence," the same

1 Pollock on Torts (5th ed.), 22. 2 To remind readers of the general law, the following quotations are given from Underhill on Torts (4th ed.. 166 and 66):

"Negligence consists in the omission to do something which a reasonable man would do, or in doing some thing which a reasonable man would not do. Blyth v. Birmingham Water Co. (1856), 25 L. J. Ex. 212.

"It is a public duty incumbent upon every one to exercise due care in his daily life; and any damage resulting from his negligence is a tort. "Thus where the plaintiff was in the occupation of certain farm buildings, and of corn standing in a field adjoining the field of defendant, and the defendant stacked his hay on the latter, knowing that it was in a highly dangerous state and likely to catch fire, and it subsequently did ignite, and set fire to the plaintiff's property, it was held that the defend

ant was liable. Vaughan v. Menlove (1837), 3 Bing. N. C. 468.

"So where the defendant intrusted a loaded gun to an inexperienced servant girl with directions to take the priming out, and she pointed and fired at the plaintiff's son, wounding and injuring him, the defendant was held liable. Dixon v. Bell, 5 M. & S. 198.

"A master is bound to take reasonable precautions to insure his serv ant's safety; and if, through the absence of such reasonable precautions, or through the breach of some duty incumbent on the master, or through the personal negligence of the master, the servant is injured, the master will be responsible. Ormond v. Holland (1858), E. B. & E. 102; Ashwix v. Stanwix (1861), 30 L. J. Q. B. 183." See also Black v. Christchurch, etc. (1894), A. C. 48, 63 L. J. P. C. 32.