Ostensible Ownership. "It is familiar law that if the owner, although induced thereto by fraud, invests another with the apparent legal title to chattels, in pursuance of a contract, the person so clothed may transfer an unimpeachable title to a good-faith purchaser. We are unable to discover any good reason for a distinction in that regard between chattels and such instruments as may be assigned by indorsement so as to give the assignee a complete legal title."1 "The rule is, that if a man so conduct himself, whether intentionally or not, that a reasonable person would infer that a certain state of things exists, and acts on that inference, he shall be afterwards estopped from denying it." 2 Partnership.-A person who is induced by fraud to hold himself out as a partner cannot escape estoppel merely because he was misled by the fraud." Trustee. A trustee of a fund was asked as to its condition, and replied erroneously, having forgotten that he had been formerly advised of a charge upon it. His forgetfulness was not allowed to avail him. He was estopped by his answer. Negotiable" Instruments.- An acceptor of a forged bill, who by his conduct had intimated to his banker that it was genuine and would be presented for payment, was estopped as against the banker (who had paid it) from denying his liabil ity upon it. Lord Selborne said: "If the plaintiffs misled the bank upon a material point, however innocently, and although they were themselves deceived by the fraud which had been committed, I think that they, and not the bank, ought to bear the loss which has been the consequence." 6 Infancy. "Where a person represents to another that he is of age, and executes a release upon which the latter acts, held, that he could not afterwards 1 Moore v. Moore (1887), 112 Ind. 152; 13 N. E. R. 673. And see Sheppard v. Union Bank (1862), 31 L. J. Ex. 154; Baines v. Swainson (1863), 32 L. J. Q. B. 281; Babcock v. Lawson (1880), 5 Q. B. D. 284; 49 L. J. Q. B. 408; Kingsford v. Merry (1856), 11 Ex. 577; 1 H. & N. 503; 25 L. J. Ex. 166; Pease v. Gloahec (1866), L. R. 1 P. C. 229, 230; 25 L. J. P. C. 166; Root v. French (1835), 13 Wend. 570, approved in Henderson v. Williams (1895), 1 Q. B. 529; 64 L. J. Q. B. 308; Trustees v. Smith (1890), 118 N. Y. 640, 23 N. E. R. 1002; Brant v. Virginia (1876), 93 U. S. 327. And see the discussion in ch. XXI. & N. 556; 28 L. J. Ex. 262; Sheppard v. Union Bank (1862), 31 L. J. Ex. 154; Baines v. Swainson (1863), 32 L. J. Q. B. 281. But see McGee v. Kane (1887), 14 Ont. 234. 3 Ellis v. Schmoeck (1829), 5 Bing. 521; 7 L. J. C. P. 231; Collingwood v. Berkeley (1863), 15 C. B. N. S. 145; Maddick v. Marshall (1864), 16 C. B. N. S. 387; 17 id. 829. 4 Burrowes v. Lock (1805), 10 Ves. 470. 5 Vagliano v. Bank of England (1883), 22 Q. B. D. 103; 58 L. J. Q. B. 27: 23 Q. B. D. 243; 58 L. J. Q. B. 357; (1891) A. C. 107; 60 L. J. Q. B. 145. 6 Id. (1891), A. C. 123; 60 L. J. Q. B. 2 Cornish v. Abington (1859), 4 H. 145. impeach the validity of the release on the ground of his minority, and that it was immaterial whether he was aware or not of the incorrectness of the representation.”1 MR. POMEROY'S POINT. Mr. Pomeroy distinguishes between lands and goods: "Fraudulent conduct is essential in cases in which an owner of land is precluded from asserting his legal title by reason of intentionally false representations or concealment by which another has been induced to deal with the land. These cases are at the present day treated as examples of equitable estoppel; "2 but he thinks wrongly so, for the case is one which belongs to earlier equitable doctrine, and "is confined to estates in land.” In reply it may be said: (1) It seems to be hardly worth while making a category of cases in which "fraudulent conduct is essential" merely to fill it with cases "of intentionally false representations or concealment." (2) It would be difficult to support a distinction between goods and lands with reference to the application to them of the principles of estoppel, or the necessity for fraud in misrepresentation. (3) Mr. Pomeroy himself says that standing by in silence may estop an owner of "property;" that this is "a true estoppel in equity;" and that in such cases 66 a fraudulent intention to deceive or mislead is not essential." The result would thus be that standing by in silence without intent to defraud would estop; but that a fraudulent assertion to help the deception would not at all events if land were the subject of the transaction. Such a case would belong to "earlier equitable doctrine." CONCLUSION. Summarizing it may be said: - 1. That fraud or bad faith is not a requisite of estoppel; 2. Although it is often found in misrepresentation, and is a necessary element in cases of misrepresentation by passivity; and misrepresentation is of course essential to estoppel. 1 Wright v. Snow (1848), 2 De G. & Sm. 321. 2 On Eq. Jur., sec. 805. 7 3 Id., sec. 807. 4 Id., sec. 818. CHAPTER IX. CONDITION NO. 7. Negligence (Carelessness) is Sometimes Essential. The subject of "Estoppel by Negligence" is in a most confused and peculiar condition. Rules and amendments of rules have been devised and elaborated by the judges; the authors have been quoting, applying and illustrating those rules;1 and yet the principal writers on estoppel are far from sure whether cases of estoppel by negligence can exist. If possible, at least they "must be uncommon;" and "it may be going too far to say that in the nature of things there can be no such case."3 The present writer believes that with the help of some short preliminary investigations the subject can be made intelligible. Negligence.- Before entering upon an exposition of the subject, it is essentially necessary that we should arrive at an understanding of the sense in which the word "negligence" is being used. It is to be regretted that the connotations of the term lead off in two different directions. On the one hand, all neglect of duty is negligence, and embraces, therefore, intended wrong. Upon the other hand the action of negligence is usually considered as being limited to that class of cases in which the act complained of has been due rather to carelessness than to intention. Confusion has arisen from this double signification of the word. In one case, for example, Lord Eldon spoke of "that gross negligence that amounts to evidence of a fraudulent intention." Of which Fry, L. J., said that the expression was "certainly embarrassing, for negligence is the not doing of something from carelessness and want of thought or attention; whereas a fraudulent in 1 Bigelow on Estoppel (5th ed.), 653659; Cababé on Estoppel, 93-104; Everest & Strode on Estoppel, 353–370; Smith's Leading Cases (8th ed.), 907911; Beven on Negligence (2d ed.), 1568-1649; Addison on Torts (6th ed.), 745; Lindley on Companie 5th ed.), 486. 2 Bigelow (5th ed.), 653. 4 Evans v. Bicknell (1801), 6 Ves. 190. Northern Counties v. Whipp (1884), 26 Ch. D. 489; 53 L. J. Ch. 620. tention is a design to commit some fraud, and leads men to do or omit doing something, not carelessly but for a purpose." Lack of care is the more frequent signification of the word "negligence;" and the action of negligence is based upon that meaning of the term. Sir Frederick Pollock says:1 "If a man will set about actions attended with risk to others, the law casts on him the duty of care and competence. From this root we have, as a direct growth, the whole modern doctrine of negligence." We see, therefore, that when we speak of an action of negli gence the word "negligence" is not used as synonymous with all breach of duty, but in the sense of carelessness in the discharge of some duty. If it meant all breach of duty, the action of negligence would embrace the whole field of torts, and historically, of contracts also; whereas in reality it is an action for carelessness in the discharge of some duty merely. Our ideas would be clarified were we to use the terms "negligence" and "carelessness" to express respectively the two ideas; for at present we either risk misconception, or we have to explain, when using the word "negligence," in what sense it is employed. For example, Sir Frederick Pollock, affirming that "Culpa is exactly what we mean by "negligence," the falling short of the care and circumspection which is due from one man to another."2 "Thus we arrive at the general rule that every one is bound to exercise due care towards his neighbors in his acts and conduct, or rather omits or falls short of it at his peril "3— places "negligence," in his classification of torts, as a subdivision of "Group C." But negligence, in the wider sense of the breach of duty, would embrace all torts and not constitute merely a subdivision of them. Perhaps it would be better to confine negligence to the generic use of the word, and adopt carelessness for the specific subdivision. Mr. Beven's book on "Negligence," too, is not a survey of all the cases in which there is a breach of duty, as from its title one might expect, but is "primarily occupied with considering defaults in conduct, and only secondarily with the adequate discharge of obligations. It deals with an aspect, not with a division, of law. A complete treatise on negligence in law 1 On Torts, 433. 2 On Torts, 17. 3 Page 353. "Negligence is the absence of care, according to the circumstances." Willes, J., in Vaughan v. Taff Vale Ry. Co. (1860), 5 H. & N. 688; 20 L. J. Ex. 248. treated of under that title are those which are embraced within the rule that "One who enters on the doing of anything attended with risk to the persons or property of others is held answerable for the use of a certain measure of caution to guard Pollock on Torts, 7. The cases against that risk." Id. 353. would be a commentary on the whole law of England from the standpoint of a non-fulfillment of legal duties, excluding only intentional wrongdoing."1 Having thus determined that the action of negligence (or better, carelessness) is, in reality, but one of various classes of actions for neglect of duty (that is of negligence), we may define carelessness, when it arises in connection with duty, 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 or reasonable man would not do." 2 Or, as put by Mr. Cooley: "The failure to observe for the protection of the interests of another that degree of care, precaution and vigilance which the circumstances justly demand."3 Estoppel by Carelessness. We are now ready for the statement that estoppel by negligence means estoppel by careless "the omission to do something which a reasonable man or doing something which a prudent and reasonable man would not do;" it being understood, of course, that such carelessness is in breach of some duty arising out of contract, relationship or otherwise. Following the lead of Mr. Justice Lindley, then, and actuated by the considerations just referred to, estoppel by negligence will hereafter be referred to as estoppel by carelessness. The change will enable us to get rid of the idea that we are speaking of estoppel with reference to all breaches of duty. We are dealing with "an aspect, not with a division, of the law." 5 Misrepresentation.-Note next that in estoppel, carelessness is only important when it is associated with misrepresentation. Carelessness without misrepresentation may indeed give rise to an action for negligence. But for estoppel you must say that you were misled by some falsity, and that your opponent ought 12d ed. 3. Consider Austin's division into negligence, recklessness, and heedlessness. Lecture 20, § 632. 2 Per Alderson, B., in Blyth v. Birmingham (1856), 11 Ex. 783; 25 L. J. Ex. 213. And see per Brett, J., in Smith v. London, etc. Ry. Co. (1870), L. R. 5 C. P. 102; 39 L. J. C. P. 68. "There is no absolute or intrinsic negligence; it is always relative to some circumstances of time, place or person." Per Bramwell, B., in Degg |