have no interest in the land," and "I have an interest, but do not intend to assert it." In the former there is estoppel because there is misrepresentation; but in the latter there may be no misrepresentation, for the truth may be in accordance with the assertion. "I do not intend to assert it" may mean one of two things: (1) "In my present frame of mind and at the present time I have no intention to enforce my claim;" or (2) "I promise you that I will not enforce my claim." If the former language were used no one would suggest estoppel; and if the latter every one would recognize contract. Each case will be found to be either in one category or the other.1

There are several cases in which an assurance has been given by the owner of property that he will make certain disposition of it, if another person will reside with him. The point as to consideration is clearly stated in one of them:3

"But there may be other kinds of consideration, and if the conduct of one person induces another to alter his or her conduct that will make a binding contract; and if the plaintiff, at an age when she was capable of gaining her livelihood either by going into domestic service or into business, was induced by Sarah Coles, who was rich enough to confer the benefit, to alter her conduct by the gift of a house in which she should live for the whole of her life with a view to gaining her livelihood by letting out lodgings, the very circumstance of her having induced the plaintiff to alter her conduct and refrain from going into business, in which she might have done well and got friends to assist her and realized independence, would be enough to make the agreement binding. And although the donor received_no_actual consideration, the case is one to which the cited passage by Sir John Stuart, in Loffus v. Maw, 3 Giff. 603; 32 L. J. Ex. 49, from Lord Cottenham's judgment in Hammersley v. De Biel, 12 Cl. & F. 62, n., is applicable. A representation made by one party for the purpose of influencing the conduct of the other party, and acted on by him, will in general be sufficient to entitle him to the assistance of this court for the purpose of realizing such representation. This then is a case in which the representation made by Sarah Coles must be held to be sufficient to raise a consideration in favor of the plaintiff, there being a good gift, that is an intention on the part of Sarah Coles to give the house and a possession in accordance with that intention." 4

Were we to get away from the solid ground that a representation to be binding must be either as to present fact, or else amount to a contract, it would be difficult to formulate any

1 See Pollock on Contracts (6th ed.), 507.

2 Loffus v. Maw (1862), 3 Giff. 592; 32 L. J. Ch. 49; Coles v. Pilkington (1874), L. R. 19 Eq. 174; 44 L. J. Ch. 381; Alderson v. Maddison (1880), 5 Ex. D. 293; 8 App. Cas. 467; 52 L. J. Q. B. 737; Smith v. Smith (1896), 29 Ont. 309.

3 Coles v. Pilkington, ante.

4 See also Bracewell v. Williams (1866), L. R. 2 C. P. 196; Williams v. Stern (1879), 5 Q. B. D. 409; 49 L. J. Q. B. 663. Note that the change of conduct must be referable to the promise. Alderson v. Maddison (1880), 5 Ex. D. 293; 49 L. J. Ex. 801; 8 App. Cas. 467; 52 L. J. Q. B. 737.

principle of action. For example, if a surety may rely upon a creditor's expressed intention not to sue the debtor, although there is no contract to that effect, why may not a policy-holder rely upon the insurance company's expressed intention to notify him of the due-date of the premiums, although there is no contract to that effect? Ought the company to be estopped from saying that any premiums ever fell due if its intention is not carried out, and for years no premiums are paid?1

FACT AND OPINION.

All that need be said as to the distinction between fact and opinion is to be found in a judgment of Garbert, J.:2

"The general rule is that a representation cannot form the basis of an action for falsity unless it relates to a matter of fact as distinguished from opinion. The difficulty arises in making the distinction. The true rule appears to be that a fraudulent misrepresentation cannot itself be the mere expression of an opinion entertained by the party making it; but where such party makes a statement which might otherwise be only an opinion, and does not state it as the mere expression of his opinion, but affirms it as a fact material to the transaction to which it relates, so that the person to whom it is addressed may reasonably treat it as a fact, and rely and act upon it accordingly, then such statement becomes an affirmation of a fact, within the meaning of the general rule, and may be a fraudulent misrepresentation. (2 Pom. Eq. Jur., 2d ed., § 878.) If the representations are of such a character that they will bear either the construction that they were expressions of opinion or statements of fact, the question which they were must be decided by the jury (3 Suth. Dam., 2d ed., § 1167; Teague v. Irwin, 127 Mass. 217; Sterne v. Shaw, 124 Mass. 59); but in order to justify a finding that they were representations of fact, they must be statements susceptible of knowledge, as distinguished from opinion. (3 Suth. Dam., supra; Sterne v. Shaw, supra; Nounnan v. Land Co., 8 Cal. 1; 22 Pac. R. 515; Williams v. McFadden, 23 Fla. 147; 1 S. R. 618; Parker v. Moulton, 114 Mass. 99.)

FACT AND LAW.

Two reasons have been put forward in support of the assertion that no relief can be grounded upon misrepresentation of law: (1) that everybody is assumed to know the law, and therefore there can be no effective misrepresentation of it; and (2) that nobody should depend or act upon what another person asserts to be the law, for it is a matter of opinion only.

1 See Insurance Co. v. Mowry (1877), 96 U. S. 544. Something in such cases may be said in favor of waiver of punctual payment as a ground of forfeiture. Chicago v. Werner (1875), 80 Ill 410; Insurance Co. v. Eggleston (1877), 96 U. S. 572; Lyon v. Travel

lers (1884), 55 Mich. 141; 20 N. W. R. 829.

2 American Nat. Bank v. Hammond (1898), 55 Pac. R. 1090 (Colo.). And see Akin v. Kellogg (1890), 119 N. Y. 442. Incidentally the subject is recurred to in a later part of the present chapter.

I. Law Well Known.- Perhaps no presumption that was ever proposed is in more flagrant opposition to indubitable fact than that propounded by Lord Ellenborough in the oftquoted case of Bilbie v. Lumley:1

"Every man must be taken to be cognizant of the law; otherwise there is no saying to what extent the excuse of ignorance might not be carried." and together with all false assumptions, it must be got well rid of before the law can be said to be scientifically arranged. The fiction is supposed to be specially requisite in the department of crimes. No doubt when a felon urges that he was ignorant of the law, we must have something wherewith to answer him. But we need not tell him that the judge is so absurd as to presume to be true that which both of them know to be false. It is quite sufficient and much more reasonable to remind him that he is a member of society, and that he must inform himself of the rules prescribed for social conduct or take the consequences.

In the department of civil law, although Lord Ellenborough's assumption is constantly repeated, yet the books are full of its modification and contradiction; and the cases are numerous in which the plain fact that this man did not know the law has been allowed to assert itself. If it were to be taken to be absolutely true, then of course there could be no effective misrepresentation as to a matter of law, for the person addressed would always know that the statement made to him was false:

"A misrepresentation of a matter of law does not constitute a fraud, because the law is presumed to be equally within the knowledge of all parties." 3

"Now every man is supposed to know the legal effect of an instrument which he signs; and therefore this must be taken to be a representation as to a fact within the knowledge of the creditor; and such misrepresentation will not have the effect of avoiding this instrument, because it was not calculated to mislead the creditor."4

1(1802) ? East, 472.

2 Pullen v. Ready (1748), 2 Atk. 591; Lewis v. Jones (1825), 4 B. & C. 512; Midland Ry. v. Johnson (1858), 6 H. L. C. 811; Rashdall v. Ford (1866), L. R. 2 Eq. 754; 35 L. J. Ch. 769; Powell v. Smith (1872), L. R. 14 Eq. 91; 41 L. J. Ch. 734; Pollock on Contracts, 405; Kerr on Fraud (2d ed.), 52; Chand on Consent, 90, 91; Grant v. McKee (1896), 11 Man. 145;

Keyes v. Merrill (1896), 92 Wis. 32; 65 N. W. R. 735.

3 Powell v. Smith (1872), L. R. 14 Eq. 91; 41 L. J. Ch. 785. And see Campbell v. Edwards (1876), 24 Gr. 175.

4 Lewis v. Jones (1825), 4 B. & C. 506; 3 L. J. K. B. O. S. 27. And see per Lord Chelmsford in Midland v. Johnson (1858), 6 H. L. C. 811; and per Gwynne, J., in Laing v. Taylor (1876), 26 U. C. C. P. 429: Cole v. Pope (1898), 29 S. C. Can. 291.

But surely this is trifling with the truth, and treating as incontrovertible that which is frequently said in satire or jest. The law may be open to disparaging remark because of its proverbial uncertainty, but it is worse than unfortunate if our only reply is that the charge is untrue—unless indeed we do verily believe that everybody is so perfectly familiar with every point which can possibly arise that it is inconceivable that, even under pressure of weightiest assertion, any one can ever make a mistake about it.

Consider too whether it would not be more reasonable to hold that every man must be taken to be cognizant of the facts with reference to which he is dealing than that "every man must be taken to be cognizant of the law." And yet that is never an answer to a man who complains that the facts have been misrepresented to him; nor is he told that he could with "ordinary vigilance and attention" have tested the matter for himself.1

II. Law a Matter of Opinion.-This becomes apparent when we turn to the other reason for denying relief in cases of misrepresentation of law, namely, that law is a matter of opinion. only, and that therefore no one ought to depend or act upon another person's representation of it. In other words (and with much greater truth than in the former case), the law is very uncertain; if anybody makes an assertion as to it, he may be right or he may be wrong; he is merely giving you his opinion; and you must not act upon that-you should go and inquire as best you can.

“A representation of what the law will or will not permit to be done is one on which the party to whom it is made has no right to rely; and if he does so it is his folly, and he cannot ask the law to relieve him from the consequences. The truth or falsehood of such a representation can be tested by ordinary vigilance and attention. It is an opinion in regard to the law, and is always understood as such."2

If a representation of law was always accompanied, expressly or impliedly, by the remark that it was given as a matter of opinion only, much could be said for this view; but the authorities supply us with many cases in which precisely the opposite remark is made or implied cases in which, by purposely and strenuously misstating the law, a fraud is accomplished.

1 Bloomenthal v. Ford (1897), A. C. 158: 66 L. J. Ch. 253; David v. Park (1870), 103 Mass. 501. And see ch. XI, sub-tit. "Means of knowledge."

2 Fish v. Clelland (1864), 33 III. 243. And see Starr v. Bennett (1845), 3 Hill (N. Y.), 303; Upton v. Tribilcock (1875), 91 U. S. 45.

One can easily understand that if a question arises upon the construction of a document as to the right of a woman to dower, and she should say that she was not entitled to it, her remark would not justify action by those hearing her. And yet if a company should represent that its debentures were legally transferable,

"there would be an equity on the part of any person who had agreed for value to take a transfer of these debentures, to restrain the company from pleading their invalidity."2

Law and Fact.-There is this difficulty, if we are to have one rule as to misrepresentations of law and another as to mis-, representations of fact, that we shall have to come to some clear understanding as to the difference between them. For example, in one House of Lords case it was said that "the construction of a contract is clearly a matter of law;"3 in a second it was thought that "private right of ownership is a matter of fact," even if you have to argue it from the construction of documents; for although it is a matter of fact "it may be the result also of matter of law;" while in a third relief was given because of mistake as to the meaning of a document, Lord Chelmsford declaring that "a matter of law arising upon the doubtful construction of a grant" is "very different from the ignorance of a well-known principle of law." 5

And what must be thought of a representation by a company that its shares are unassessable? Is that a statement of law, or of fact as the result of a matter of law? If the company had represented that there was a clause in its charter rendering the shares unassessable, is that a matter of fact? And will it become one of law if there is some provision there but of doubtful interpretation. Again, if directors should represent that their company has power to issue debentures, is v. Clifford (1876), 3 Ch. D. 792; 45 L. J. Ch. 809. See also Barber v. Clark (1890), 20 Ont. 522; 18 Ont. App. 435; Baldwin v. Kingstone (1890), 18 Ont. App. 108; King v. Doolittle (1858), 1 Head (Tenn.), 86; Chand. on Consent, 104; Pomeroy, Eq. Jur. 1176.

1 Fairweather v. Archbald (1868), 15 Gr. 255. And see Bigelow on Es toppel (5th ed.), 573.

2 Per Kay, L. J., in Re Romford (1883), 24 Ch. D. 93; 52 L. J. Ch. 728. And see ch. XXIV, sub-tit. "Negotiability by estoppel," citing Goodwin v. Roberts, and other cases.

3 Midland v. Johnson (1858), 6 H. L. C. 811. And see Powell v. Smith (1872), L. R. 14 Eq. 85; 41 L. J. Ch. 734. 4 Cooper v. Phibbs (1867), L. R. 2 H. L. 170. See to same effect, Jones

5 Beauchamp v. Winn (1873), L. R. 6 H. L. 234.

6 In Upton v. Tribilcock (1875), 91 U. S. 45, it was held that a representation that shares are unassessable is a representation of law.