learned author discusses in a passage to which the present writer desires to subscribe:1

"The doctrine of 'natural and probable consequence' is most clearly illustrated, however, in the law of negligence. For these the substance of the wrong itself is failure to act with due foresight; it has been defined as 'the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do.' Now a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might, by ingenious conjecture, be conceived as possible, human affairs could not be carried on at all. The reasonable man then to whose behavior we are to look as the standard of duty will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant's place would have foreseen as likely to happen, there is no wrong and no liability. And the statement proposed though not positively laid down in Greenland v. Chaplin, per Pollock, C. B. (1850), 5 Ex. at p. 248, 19 L. J. Ex. 293, namely, that a person is expected to anticipate and guard against all reasonable consequences, but that he is not by the law of England expected to anticipate and guard against that which no reasonable man would expect to occur, appears to contain the only rule tenable on principle where the liability is founded solely on negligence. Mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated,' may be the ground of legal compensation under some rule of exceptional severity, and such rules for various reasons exist; but under an intelligible rule of due care and caution it cannot be taken into account." Mr. Cooley defines negligence as

"the failure to observe for the protection of the interests of another that degree of care, precaution and vigilance which the circumstances justly demand." 2

APPLICATION OF THE PRINCIPLE TO ESTOPPEL.

The present writer believes that this principle-"Observe an appropriate measure of prudence to avoid causing harm to others" — is the chief corner-stone not only of the law of torts but of the law of estoppel by assisted misrepresentation; and that the confusion we are to meet with in the present chapter is largely due to lack of recognition of that fact.

Two main stumbling blocks are encountered. First, although in various departments of the law to which estoppel is applicable the principle in hand is in reality the efficient and dominating factor, yet other reasons for the decisions than the true one are put forward and accepted as satisfactory. Secondly, there are many cases in which all possible application of the princi

1 Pollock on Torts (5th ed.), 37. On Torts, 630. This definition has met with very general approba.

tion in the United States. Jaggard on Torts, 810, n.

ple is completely denied. An effort will be made to show that the principle has been in some branches of the law of estoppel in reality accepted; to uphold the principle as one necessary to the condition of commercial nations; and to urge its adoption in certain lines of cases from which it is at present excluded.

But first observe the relation and application of the principle in hand to estoppel by assisted misrepresentation. In other words: How can the duty of observing "an appropriate measure of prudence to avoid causing harm to others" have any bearing upon the law of estoppel?

Suppose that a mortgagee hands over the title deeds to the mortgagor, and that the mortgagor fraudulently deposits them with a banker as security for a loan. The mortgagee may now be estopped from setting up his title against the banker; and the reason is that he has assisted the misrepresentation of unincumbered ownership made by the mortgagor - he has made that representation credible. But we cannot arrive at this result without bringing our principle into operation as a major premise. We must say that there is a duty to "observe an appropriate measure of prudence to avoid causing harm to others;" that the mortgagee in handing over the deeds committed a breach of that duty (for he knew that he was equipping the mortgagor with a simple method of defrauding other people); and that for such breach of duty he is estopped — for

"The common-law duty to exercise care to avoid doing harm to others may be derived from the ownership, custody, control or use of instrumentalities which may of necessity, or in reasonable probability, inflict damage." 2

The rule applies that

"When any person under a legal duty to any other person to conduct himself with reasonable caution in the transaction of any business, neglects that duty; and when the person to whom the duty is owing alters his position for the worse because he is misled as to the conduct of the negligent person by a fraud of which such neglect is, in the natural course of things, the proximate cause, the negligent person is not permitted to deny that he acted in the manner in which the other person was led by such fraud to believe him to act."3

APPLICATION OF THE PRINCIPLE TO ESTOPPEL DENIED.

It is of the greatest importance that this relationship between duty and estoppel should be clearly appreciated. From

1 See many similar cases referred

to in chapter IV.

"Jaggard on Torts, 865.

3 Stephen's Dig. Law of Evidence (2d ed.), 124.

it all else is derived. Nevertheless its existence is not merely often ignored, but is sometimes expressly denied. In a very important case Wilde, B., said:

"It is I think always difficult and sometimes illusory to compare two principles which emanate from different sources, and proceed in different directions. The action for negligence proceeds from the idea of an obligation towards the plaintiffs to use care, and a breach of the obligation to the plaintiff's injury. The doctrine of estoppel as applied to these cases of negligence is based on the injustice of allowing a plaintiff to be the author of his own misfortune, and then charging the consequences on others. It would be very fallacious to test any set of circumstances as rais ing an estoppel or not, by asking whether, reversing the parties, an action for negligence would lie."

A crucial question is here raised: Does estoppel by misrep resentation depend upon breach of duty? The learned baron (just quoted) would answer in the negative; and would emphasize it by saying that estoppel has nothing whatever to do with duty with "obligation."

Take the simplest case of estoppel, namely, standing by while some one sells your property to an innocent purchaser. You are estopped. But why? The learned baron would say that you were the author of your own misfortune, and must not charge the consequence of it upon others. But this is not correct, for you were not the author of your own misfortune, but of that of the purchaser. Apart from estoppel you still have your property; and the purchaser, although he has paid his money, has received nothing for it. We must then say that the bystander is estopped (if at all), not because he was the author of his own misfortune, but because he was the author or part author of damage to another. But if damage be caused to another there is no legal responsibility for it in the absence of the breach of some duty owed to that other; there must therefore have been some duty; and thus we arrive at the necessity for the existence of duty as a requisite of estoppel. In accordance with this view it was said in the House of Lords:2

"When I saw the mistake into which he had fallen it was my duty to be active and to state my adverse title."

1 Swan v. N. B. A. (1862), 7 H. & N. 635; 31 L. J. Ex. 437. Much can be said in favor of the alternative test here suggested. It would be very anomalous if certain negligence could be penalized by estoppel; but that the negligent person would go free were the circumstances not such that estoppel would hurt him.

See the discussion in chapter XVI; and Evans v. Bicknell (1801), 6 Ves. 173; Lynch v. Murdin (1841), 1 Q. B. 29, 35.

2 Ramsden v. Dyson (1866), L. R. 1 H. L. 140. And see Viele v. Judson (1880), 82 N. Y. 32: New York v. Rothery (1887), 107 N. Y. 310; 14 N. E. R. 269.

Try the alternative: that there is not, in a case of estoppel by standing by, the element of duty. We must then say that the bystander did perfectly right in silently permitting the fraud to be committed (for there was no duty incumbent upon him to reveal his title), and for doing that which was perfectly right he must lose his property-must be estopped. That is not very satisfactory.

"Before any person can complain of negligence he must make out a duty to take care: and that duty can only arise in one of two ways, namely, either by contract, or by the law imposing it."1

"A person cannot be said to be culpable in not doing a particular thing, unless it is his duty to do it." 2

It is equally clear that in all other cases of estoppel there must be the element of breach of duty. In all of them it is not that the estoppel-denier has been the author of his own misfortunes, but that he has got some other person into trouble. In all of them he, upon the facts, is unhurt; and what we have to do is to find some reason for saying to him: "You must not assert these facts." The only reason we can give is that upon the faith of his misrepresentation or assisted misrepresentation of the facts some other person has changed his position. But if he was perfectly right in misrepresenting - that is, if the law did not impose upon him any duty not to misrepresent, or to aid in misrepresentation, there is no reason (known to the law at least) why he should not assert the facts. If he has done something (legally) wrong, then penalize him. If he has been silent when he ought to have spoken, then, and not otherwise, compel silence when he wishes to speak.

THE PRINCIPLE ALREADY IN OPERATION.

It has been said that the duty of "an appropriate measure of prudence" has been allowed (although frequently unconsciously) to govern the decision of cases in various departments of the law (besides that of tort). For example, it is your duty in drawing a check not to leave tempting spaces in it; for thereby your banker may be defrauded. It is your duty not to allow your mortgagor (except under special circumstances) to have the custody of the title deeds; for thereby some money lender Cooke (1848), 2 Ex. 654; 18 L. J. Ex. 114.

1 Per Bramwell, J., in Dickson v. Reuters (1877), 3 C. P. D. 5; 46 L. J. C. P. 197.

2 Per Alderson, B., in Freeman v.

Young v. Grote (1827), 4 Bing. 253; 12 Moo. 484; 5 L. J. C. P. 165.

may be defrauded.' It is your duty not to permit others to have possession of your "negotiable" securities; for thereby purchasers of them may be deceived. It is your duty not to furnish your trustee with evidence that he is the beneficial owner; for therewith he may cheat some innocent purchaser.3 It is your duty not to permit your agent to have an apparent authority larger than his real authority; for thereby others may be tricked. It is your duty, when retiring from partnership, to give notice of that fact; for otherwise credit may be given upon the faith of your continued membership. It is your duty in executing a document to see that it is that which you believe it to be; for otherwise some third person may be led to believe that you have agreed to that which in reality you have not even considered. It is sometimes by usage your duty to examine an account delivered to you, and to give timely notice of your objections thereto; otherwise the other party may fail to take steps for his protection which he could and would have taken. It is your duty to exercise care with reference to documents which "have a certain mercantile meaning attached to them;" for otherwise "persons likely to deal with the documents" may suffer damage.

8

The law of estoppel is the legal sanction for all such duties; and provides for their disregard the penalty of silence in respect to all rights and claims which, at the proper time, ought to have been put forward.

BUT OTHER REASONS GIVEN.

The application of the law of estoppel to many of these cases has not, however, been sufficiently observed; and in its absence, or even sometimes in declared opposition to it, other reasons have been offered for the results arrived at. If, for example, blank spaces have been left in your check, it has been said that you thereby authorized the payee to fill them

1 See ch. XIX.

2 See ch. XXIV. "Ambulatory" ought to be substituted for "negotiable."

3 See ch. XVII to XXVI.

4 See ch. XXVI.

5 See ch. XXVIL

6 See ch. XXV.

7 Devaynes v. Noble (1815), 1 Mer. 530; Leather v. Morgan (1886), 117 U. S. 96. See references to these cases in ch. XI.

8 Coventry v. Great Eastern (1883), 11 Q. B. D. 776; 52 L. J. Q. B. 696.