that a representation as to law or fact? Possibly either or both. For it is said that if the reason why the company had not such power was that sufficient stock (a pre-requisite of debentures) had not been subscribed, the representation was one of law; but if the right to issue had accrued and, "having exhausted that power, the directors had stated that they still had power to issue debentures," the representation would have been one of fact. And what is to be said of a representation that a patent is valid when the point is whether it is for a "new and useful" invention;2 or a representation that a man is a shareholder in a company; or a representation that a writ has been "returned in due form of law; or a representation that A. is the wife of B.? Perhaps this is the best that can be said:

3

4

"There is not a single fact connected with personal status that does not more or less involve a question of law. If you state that a man is the eldest son of a marriage, you state a question of law, because you must know that there has been a valid marriage, and that that man was the first-born son after the marriage, or in some countries before. Therefore, to state that it is not a representation of fact seems to arise from a confusion of ideas. It is not the less a fact because that fact involves some knowledge or relation of law. There is hardly any fact which does not involve it. If you state that a man is in possession of an estate of ten thousand pounds a year, the notion of possession is a legal notion and involves knowledge of law; nor can any other fact in connection with property be stated which does not involve such knowledge of law. To state that a man is entitled to ten thousand pounds consols involves all sorts of law.”5

We see now sufficiently the difficulties which confront those who assert that relief will be given as against mistakes of fact but not as against mistakes of law. Categories have to be made; for we have not got them, but only the promise of immense difficulty in their construction.

There are moreover two very important points to be noticed in connection with the maxim Ignorantia juris haud excusat, if "the word 'jus' is used in the sense of denoting general law," as Lord Westbury declares is the correct sense of it; or if, as Lord Chelmsford has it, the maxim applies only to "ignorance of a well-known rule of law."7

1 Rashdall v. Ford (1866), L. R. 2 Eq. 750; 35 L. J. Ch. 769.

2 Vermilyea v. Canniff (1886), 12 Ont. 164; Huber v. Guggenheimer (1898), 89 Fed. R. 598.

4 Starr v. Bennett (1843), 5 Hill (N. Y.), 303.

5 Eaglesfield v. Londonderry (1876), 4 Ch. D. 702.

6

Cooper v. Phibbs (1867), L. R. 2

3 Broughton v. Hutt (1858), 3 De G. H. L. 170; 45 L. J. Ch. 809.

& J. 569; 28 L. J. Ch. 167.

7 Midland v. Johnson (1858), 6 H I. C. 811.

(1) There is the criticism in Story's Equity:

"The distinction between cases of mistake of a plain and settled principle of law, and cases of mistake of a principle of law not plain to persons generally, but which is yet constructively certain as a foundation of title, is not of itself very intelligible, or practically speaking very easy of appli cation, considered as an independent element of decision." I

(2) And further there is the very important consideration that it is precisely in cases in which there has been a display of "ignorance of a well-known rule of law" that relief is often granted (as we shall see) because

"the ignorance of a plain and established doctrine so generally known and of such constant occurrence as a common canon of descent may well give rise to a presumption that there had been some undue influence, imposition, mental imbecility, or confidence abused." 2

We thus seem to arrive at the conclusions that the maxim Ignorantia juris haud excusat applies only to cases of "ignorance of well-known rules of law;" that it is probably impossible to distinguish (for practical purposes) between a plain principle of law and one "not plain to persons generally;" but that the distinction is, after all, not very important, for if ignorance of plain law will not excuse, yet advantage must not be taken of such ignorance. That is to say, people are presumed to be familiar with the plain principles, but when they are not courts must recognize that fact and will relieve upon the ground of fraud.

Advantage Taken of Ignorance.-It sometimes happens that a venerable statement of the law is allowed to persist while the cases which it ought to regulate are being decided in opposition to it. This presumption that "every man must be taken to be cognizant of the law" still has authoritative sound; and arguing from it, in the manner above suggested, the conclusion is inevitable that nobody can be misled by a misrepresentation of law; but as we have already said, "the cases are numerous in which the plain fact that this man did not know the law has been allowed to assert itself;" and it is now "well settled that where there is a mistake of law on one side, and either positive fraud on the other, or inequitable, unfair and deceptive conduct which tends to confirm the mistake and conceal the truth, it is the right and duty of equity to award relief." 3

This is made sufficiently clear by Lansdown v. Lansdown

113th ed. 128.

Haviland v. Willets (1894), 141

2 Snell's Eq. (11th ed.), 457. And N. Y. 35; 35 N. E. R. 958.

see Frigg v. Read (1845), 5 Humph.

(Tenn.) 535.

2

6

5

in 1750, a case of misrepresentation as to right of succession;1 Legge v. Croker in 1811, a case of misrepresentation as to a right of way; Champlain v. Laytin in 1836, a case of misrepresentation as to dedication; Wheeler v. Smith in 1850, a case of misrepresentation as to the effect of a will; Southall v. Rigg in 1851, a case of misrepresentation of the liability of an apprentice to make up deficiency in his master's fee; Coward v. Hughes in 1855, a case of permitting a woman to believe in her liability; Jordan v. Stevens in 1863, a case of misrepresentation as to the validity of a lease commencing in futuro;1 Earl Beauchamp v. Winn in 1873,8 and Cooper v. Phipps in 1867,9 cases of purchasers buying their own property; Hirschfield v. London in 1876, a case of misrepresentation as to effect of a release of damages; 10 Hart v. Swaine in 1877, a case of misrepresentation as to tenure of land sold; " Snell v. Insurance Co. in 1878, a case of misrepresentation as to a policy in the name of one partner covering the firm's interest; 12 Stewart v. Kennedy in 1890, a case of misrepresentation as to necessity for "ratification of the court; "13 and in Wilding v. Sanderson in 1897, a case of misrepresentation as to the effect of a document; and many other cases.15

14

Estoppel. The cases relating to misrepresentation of law have not so far involved the peculiar remedy of estoppel. They have been those in which relief by rescission and restitution principally have been awarded. There can be no doubt, however, that the principles involved in both classes of cases are so far similar that we are safe in applying (with some little circumspection) the authorities of the one when treating of the other.

1 Mosely, 364; 2 J. & W. 205. See reference in Stewart v. Stewart (1838), 6 Cl. & F. 966.

21 Ball & B. 506.

36 Paige (N. Y.), 195.

49 How. (U. S.) 55.

511 C. B. 481.

61 K. & J. 443.

751 Me. 79.

8 L. R. 6 H. L. 233.

9 L. R. 2 H. L. 149. See p. 164. 102 Q. B. D. 1; 46 L. J. Q. B. 94. 117 Ch. Div. 42; 47 L. J. Ch. 5.

1298 U. S. 85.

13 15 App. Cas. 108.

14 (1897) 2 Ch. 534; 66 L. J. Ch. 467, 684.

15 Laing v. Taylor (1876), 26 U. C. C. P. 430; approved in Brown v. Holland (1885), 9 Ont. 57; Champlin v. Laytin (1835), 6 Paige (N. Y.), 195, in which it is suggested that the ground of relief is fraud rather than ignorance of the law; Goodenow v. Ewer (1860), 16 Cal. 461; Boggs v. Hargrave, id. 5€0.

Innocent Misrepresentation. Before leaving the subject it should be noted that it is not at all necessary for relief that the misrepresentation should be fraudulent. An innocent misrepresentation is just as disastrous to the person deceived as one tainted with falsehood; and it is equally a ground for estoppel.1

1 Snell v. Insurance Co. (1878), 98 U. S. 85. And see ch. VIIL

CHAPTER VII.

CONDITION NO. 5.

The Misrepresentation Must be of Something Material.

It is not necessary to quote much authority for the proposition that a misrepresentation to have any effect upon the relations of parties must be as to something which might have affected those relations.

"A matter alleged, which is neither traversable nor material, shall not estop."1

The test of materiality may be stated as follows:

"It must be a representation 'dans locum_contractui,' that is a representation giving occasion to the contract: the proper interpretation of which appears to me to be the assertion of a fact on which the person entering into the contract relied, and in the absence of which it is reasonable to infer that he would not have entered into it; or the suppression of a fact the knowledge of which it is reasonable to infer would have made him abstain from the contract altogether.” 2

Or, in the language of Pollock on Contracts:3

"Anything which would affect the judgment of a reasonable man, governing himself by the principles on which men in practice act in the kind of business in hand."

The following is from a United States case and represents a more rigid view of the matter:

"Still, this important question is not left to the arbitrary or accidental decision of each court in each case, for all courts are governed or at least directed by certain precedents and rules, among which it is sufficient to state at present that the fraud must be material to the contract or transaction which is to be avoided; for if it relate to another matter, or to this only in a trivial and unimportant way, it affords no ground for the action of the court. It must, therefore, relate distinctly and directly to the contract and affect its very essence and substance. But there is no positive standard by which to determine whether the fraud be thus material or not. No better rule can be given for deciding the question than this: If the fraud be such that, had it not been practiced, the contract could not have been made or the transaction completed, then it is material to it; but if it be shown or made probable that the same thing would have been done in the same way if the fraud had not been practiced, it cannot be deemed material. Whether the fraud be material or otherwise seems to be, on the decided weight of authority, a question for the jury and not a question of law; but it is obvious that in many cases the jury cannot answer this question without instructions from the court." 4

1 Vin. Ab., vol. X, p. 422.

2 Per Romilly, M. R., in Pulsford v. Richards (1853), 17 Beav., 96; 22 L. J. Ch. 559.

to materiality, see Leake on Contracts (13th ed.), 313 sq., and Royal Ins. Co. v. Byers (1885), 9 Ont. 120. 4 Per Miller, J., in McAleer v. 36th ed., p. 550. For examples as Horsey (1871), 35 Md. 452. And see