stitute an unnecessary and, to our mind, uneonstitutional interference with individual liberty. Such legislation cannot be said to derive any support from the Fifteenth Amendment, as the prohibition there is only as to the right to vote, and, even in that respect, only against a state or the United States, and not against the individual citizen. Nor can such statutes rest for justification on the same principles as apply to common carriers who, under the law, are expected to carry every description of persons and property without discrimination.

However, we are not concerned with the constitutionality of such legislation, but with its rediculous application in a recent case as including bootblack stands among places of "public accommotion" within the meaning of such acts. Burks v. Bosso, 81 N. Y. Supp. 384. In this case, defendant, a bootblack in the city of Rochester, refused to shine the shoes of the plaintiff, a negro. The latter sued the bootblack under the statute to recover the penalty provided for such infringement of his civil rights. The Supreme Court of New York, on appeal, held that the plaintiff should recover, the court remarking: "It is exceedingly difficult to draw the line between places which may be for the accommodation of the public and those which are of a private character. The division, in a measure, must be an arbitrary one. In the present case the respondent plied his trade of bootblack in the corridor of a leading office building. He conspicuously advertised his business and solicited patronage. The place and the calling were as public as an eating house, or a barber shop, or a bathhouse. He did not invite any particular customers, but men and women and strangers, whoever came, were served by him, except that he distinctly drew the line against the appellant because of his color, as the jury have found. I apprehend that the legislature intended to denominate each place in the enumerated list as one for public accommodation. It put its own definition to that term. There is nothing in the act warranting the suggestion that an inn was to come within that scope while a different signification was to be applied to a bathhouse or a barber shop. Then it gave extension to the designated schedule by including "other places of public accommodation," which would embrace any other place in the like category with any of those named. These are words of enlargement, not of restriction, and were inserted in the act for some purpose. They are not meaningless. The enumeration may not have included a grocery or dry goods store or news stand, as no attempt may have been made to exclude people from those places by reason of their color or creed. In stores and kindred places, whoever seeks to buy and has the money is permitted to purchase. If a merchant should refuse to sell his goods to a well-behaved black man who is ready to pay for his purchase, the act might be extended, if not already comprehensive enough to meet that situation.”

It is refreshing to note that a vigorous dissenting opinion is submitted to their decision by Nash, J., concurred in by Justice Hiscock. Justice Nash says:“A bootblack stand cannot be properly designated as a place of public accommodation, except as every place to which the public are expressly or impliedly invited, and are served, either as patrons or purchasers, such as soda fountains.cigar stands, news stands, dry good stores, or groceries, may be so designated. In the widest sense, they are all places of accommodation, but not, in the restricted sense of the phrase as used in the statute, places of public accommodation."

The inherent vice in this legislation is its gross interference with individual liberty and, for this reason, if for no other, should be closely confined within the narrowest limits possible. This more sensible view is clearly sustained by the supreme court of Illinois in the case of Cecil v. Green, 161 Ill. 265, 43 N. E. Rep. 1105, 32 L. R. A. 566, in which case it was sought to bring the act of the defendant, who was engaged in the drug business, and, in connection therewith, kept for sale soda water, etc., and had refused to serve soda water to the plaintiff on account of his color, within the provisions of a statute which provided that all persons should be entitled to the full and equal accommodations, advantages, facilities, and privileges of inns, restaurants, eating houses, barber shops, public conveyances on land and water, theaters, and all other places of public accommodation and amusement. The court there said, referring to soda fountains: "Such places can be considered places of accommodation or amusement to no greater extent than a place where dry goods or clothing, boots or shoes, hats and caps, or groceries, are dispensed. The personal liberty of an individual in his business transaction, and his freedom from restriction is a question of the utmost moment; and no construction can be adopted by which an individual right of action will be included as controlled within a legislative enactment, unless clearly expressed in such enactment, and clearly included within the constitutional limitation on the power of the legislature."

THE DOCTRINE OF EQUITABLE ESTOPPEL AS APPLIED TO OPINIONS AND STATEMENTS OF INTENTION.

The Doctrine Defined.-Briefly put, the doctrine of estoppel is that principle, by virtue of which, when one has assumed a particular attitude with reference to a certain subject matter, he will be precluded from varying his position to the prejudice of one who has varied his situation, on the faith of what the other party has spoken, omitted or performed. No attempt will be made to determine whether this doctrine is merely a rule of evidence, or whether it is one which bases

a right. Whether it shall be placed among the principles of adjective law, or whether its application demands its recognition in substantive jurisprudence, is not within the limits of our subject and will not be essayed in this thesis.

The Representation Must be of Fact.-The judges and text writers place first among the essentials of a situation in which this doctrine will be applied, that there be a representation of a material fact.1 There are three words here of importance, but most important, not alone to us, because it affects the matter upon which we are engaged, but to all, because it marks the breach between those material representations which will estop and those which will not, is the word fact. It may not be saying too much, if we declare that the representation must be one of fact; but careful text writers, apparantly without reason upon the authorities, have stopped short of this assertion and have stayed with Dr. Bigelow, who says, in discussing the doctrine of estoppel, with reference to matters of opinion, "the rule we apprehend to be this, that where the statement or conduct is not resolvable into a statement of a fact, as distinguished from a statement of opinion or law, the party making it is not bound unless he is guilty of a clear moral fraud, or unless he stood in a relation of confidence toward him to whom it was

made."2 If this sentence is examined carefully it will be seen that the genius of the last clause is not different from that of the

first. A representation to amount to a clear moral fraud must, we take it, be a false declaration of the opinion of the declarant, which then, allows of the resolution of that phrase into the first clause of the sentence, and leaves the rule, that the statement must be resolvable into one of fact. To be a trifle more explicit, a statement that the speaker is of a certain opinion, when he is not, is a moral fraud, and apparently is a false representation as to the fact concerning what his opinion really is. The doctrine of estoppel, as applied to the relation of confidence, spoken of in the last phrase of the second clause of the sentence under discussion, stands upon a little different footing than it does in the ordinary

1 Bigelow on Estoppel, 570; Pickard v. Sears, 6 Adol. and El. 469; Horn v. Cole, 51 N. H. 290. Bigelow on Estoppel (5th Ed.), 572.

3 Bigelow on Estoppel (5th Ed.), 573.

case. The representation here founds an estoppel, when it would not in the ordinary case, not because of any difference in it, but because the relation of the parties obliges the trustee to make his representation good. In the normal case, however, we believe the rule to be, that the representation which precludes the.assertion of contrary circumstances, must be one of fact.

Representations of Matters of Opinion.As a general rule it may be asserted that estoppels may not be based upon declarations of opinion. In consonance with this rule, it has been held that declarations depending upon the judgment or opinion of the declarant, as an estimate, will not, when honestly given, support an estoppel against him." The mere expression of an opinion upon facts equally known or open to both parties is not a representation that the hearer may rely upon to estop the speaker, for matter for estoppel must be a statement of fact.7

Same Subject-Recommendation of Credit. -Typical among the cases applying this rule are those wherein a creditor has been applied to for information concerning the financial standing of his debtor and having recommended it, is sought to be estopped from enforcing his claim by the one to whom the statement was made, who gave credit to the debtor in dependence upon it; but an attaching creditor, seeking priority over a general assignment, is held not to be concluded by an expression of an opinion as to his debtor's solvency some months prior to the assignment, and in harmony with statements made to him by the debtor; so, also, in the absence of bad faith, a mortgagee's statements that the mortgagor is doing a good business, and will be able to meet his obligations, will not warrant refusing him possession under his mortgage as against a receiver;9 and a bank's recommendation of a firm's credit, coupled with the statement that its members are good business men, and possess property beyond their liabilities, will not preclude it from participation as a creditor in the firm assets;

8

4 Bigelow on Estoppel (5th Ed.), 572.

5 Hammerslough v. Kansas City Bldg., etc. Asso., 79 Mo. 81 (1883).

6 Hurt v. Riffle, 11 Fed. Rep. 790 (1882).

7 Mason v. Harpers Ferry Bridge Co., 28 W. Va. 639 (1886).

8 Hazell v. Tipton Bank, 95 Mo. 60 (1888).

9 Chafey v. Mathews, 104 Mich. 103 (1895).

although at the time the statement was made the firm's account with it was overdrawn, since the declaration was merely one of opinion. 10

Same Subject-Boundaries.-Of like import are the cases of statements concerning the location of boundary lines, and the general rule is that these statements are merely declarations of opinion and will not preclude the speaker from thereafter denying their verity. An informal declaration by a landowner as to his boundary, not shown to have been advised, coupled with a refusal to give the adjoining owner a map, will not prevent the establishment of the true boundary. 12 Although one relies on his neighbor's mistaken statement as to their boundary, and cuts his neighbor's timber, he must, nevertheless, pay therefor, and the statement will not protect him, 18

The

Same Subject – Miscellaneous Cases. Force, as an estoppel, has also been denied upon the opinion of an injured party as to the cause of his injury, and his declaration that a certain person was not at fault.14 statement of an attorney, who has a note given for the purchase price of the land, as to the amount due, will not prevent the subsequent purchaser, to whom it was made, being held liable for the true amount;1 15 so also an estoppel may not be based upon a declaration as to the extent of a grant or the effect of a deed if made without fraud or an intention to mislead, 16 but, where one says he has no claim under an instrument, the provisions of which are intricate and obscure, it has been held that he is estopped from asserting any claim thereunder, one judge declaring "that the assertion of a particular construction and effect of a written instrument of an obscure or doubtful character, is equally good as an estoppel or as a disclaimer of title.'17 This case does not appear to be in harmony with the general rule, and although I cannot find

10 Sylvester v. Henrich, 93 Iowa, 489 61 N. W. Rep. 942 (1895).

11 Jordon v. Ferree, 101 Iowa, 440, 70 N. W. Rep. 611 (1897).

12 Hayden v. Matthews, 4 App. Div. (N. Y.) 338, 38

N. Y. Supp. 905 (1896).

13 Evans v. Miller, 58 Miss. 120 (1880).

14 Dennison v. Miner (Pa.), 17 W. N. C. 561.

15 Parker v. McBee, 61 Miss. 134 (1883).

16 Gove v. White, 20 Wis. 425 (1866).

17 Mattoon v. Young, 2 Hun (N. Y.), 559 (1874).

that it has been passed upon by the court of appeals, its principle is certainly shaken in some cases, which I will consider in the next paragraph.

--

The Same Subject- Legal Conclusions. rule is that matter for estoppel must be statement of fact, not of law or opinion, on a proposition of law. 18 The construction of a will and the interest taken by devisees, are matters of law, and statements concerning them will not preclude the speaker. 19 So also the purchaser's opinion as to the sufficiency of documents will not prevent his getting others, because the first were insufficient, even though he be a lawyer, 20 and one's statement of a note, which it was suggested should be in his name or to his order, "its all right, it makes no difference, it is payable have to bearer and you can collect it,"21 been held not to raise estoppels.

The assertion by a pleader, of a mere legal conclusion, drawn from facts stated will not estop him22 neither will a statement in an affidavit, accompanying a petition of bankruptcy, concerning payment to the bankrupt by a third party, preclude the petitioner from denying the payment in his suit against the third party.23 A creditor may also show the truth, although by mistake he has said that a certain arrangement with the principal discharged the surety, 24 and the payee's statement to the maker, that he is under no legal obligation to pay the note, is held not to preclude him from suing upon it. 25

These rules may well be said to be based upon the theory that everyone knows the law, and hence cannot be misled by a false statement of it,26 and where an attorney gave his opinion upon a title to one, who purchased upon the strength of it, he was estopped from declaring it defective when he subsequently purchases it. 27

18 Mason v. Harpers Ferry Bridge Co., 28 W. Va 639 (1886). 19 Brewster v. Striker, 2 N. Y. 19 (1848). Note this case in connection with Mattoon v. Young, 2 Hun, 559, cited above.

20 Hart v. Bullion, 48 Tex. 278 (1877).

21 Allen v. Wright, 134 Mass. 343 (1883).

22 Chatfield v. Simonson, 92 N. Y. 209 (1883).

23 Morgan v. Couchman, 14 C. B. 101, 2 C. L. R. 53,

23 L. J. C. P. 36; 2 W. R. 59.

24 Royston v. Howie, 15 Ala. 309.

25 Cartwright v. Gardner, 59 Mass. (5 Cush.), 273 (1850).

26 Platt v. Scott, 6 Blackf. (Ind.) 389 (1843).

27 Soward v. Johnson, 65 Mo. 102 (1877).

Same Subject-The Promissory Note Cases. -Very nearly related to those cases which we have just been discussing, and it would seem upon the very line between fact and opinion, are the cases of declaration of validity or sufficiency of written instruments. Typical of these are the promissory note cases. The general rule is, that if one, about to purchase a note, goes to the maker seeking to learn of its sufficiency, and is informed that it is all right and will be paid, he may compel the maker to adhere to his statement, although he was then ignorant of his defense, as failure of consideration. 28 This rule does not hold true however as to defenses subsequently arising, like total failure of consideration, unless the maker when approached by the intending purchaser, makes an independant promise to pay it. 29

Only a few of the cases upon this point have been cited, because, strictly speaking, these decisions can scarcely be considered within our subject, for we esteem it true that the defenses to which the doctrine of estoppel has been applied under these circumstances, present questions of fact rather than matters of law or opinion, and do not impair the rule that when a party to a note makes a declaration concerning its legal effect, he is not precluded from subsequently denying its verity.

Same Subject-Relation to the Doctrine of Fraud. The general doctrine under discussion is very nearly related to the principles applicable in cases of fraud. In fact some authorities have considered it one of them. It has been shown that statements of opinion will not found an estoppel, and under like circumstances, expressions of judgment will not raise an action or defense as fraud.30

Representations as to Intention. In order to create an estoppel in pais there must be a representation of an existing fact, and not a promise with respect to some future act. Thus, where a resident of Massachusetts told

31

28 Homer v. Johnston, 6 Miss. (5 How.) 698; Watson's Exr's v. McLaren, 19 Wend. (N. Y.) 557 (1838); Petrie v. Feeter, 21 Wend. (N. Y.) 172 (1839); Drake v. Foster, 28 Ala. 649 (1856); Brooks v. Martin, 43 Ala. 360 (1869); Rose v. Teeple, 16 Ind. 37 (1861); Vanderpool v. Brake, 28 Ind.130 (1867); Smith v. Stone, 17 B. Mon. (Ky.), 168 (1856).

29 Cloud v. Whiting, 38 Ala. 57 (1861).

30 14 Am. & Eng. Ency. (2d Ed.), 34; Story's Equity Juris. 197.

31 Hollins v. Hubbard, 91 Hun (N. Y.), 375, 36 N. Y. Supp. 846 (1895).

his creditor, also a resident there, that he intended going to California within a month to remain permanently, but would pay before he left, but failed to pay, and returning to Massachusetts to reside, upon being sued set up the statute of limitations, and the plaintiff claimed that he was estopped therefrom because of his statement as to his intended absence, Bigelow C. J, said, "without undertaking to define the nature and kind of representations which will thus operate to preclude a party, we think it very clear that the statement proved at the trial of this case, which the plaintiff seeks to set up for the purpose of excluding the defense of the statute of limitations, does not come within this rule. In the first place, it does not appear that the representation made by the defendant of his intention to abandon his domicile in Massachusetts and take up his residence in California, was not perfectly true at the time it was made, and that he did not make it in entire good faith and with the purpose of carrying it into | execution. This, however, may not be a decisive consideration. But in the next place it was a representation only of a present intention or purpose. It was not a statement of a fact or state of things actually existing, or past and executed, on which a party might reasonably rely as fixed and certain, ard by which he might properly be guided in his conduct, and induced to change his position in the manner alleged by the plaintiff. The intent of a party, however positive and fixed, concerning his future action, is necessarily uncertain as to its fulfillment, and must depend on contingencies and be subject to be changed and modified by subsequent events and circumstances. Especially is this true in regard to the place of one's domicile.

On

a representation concerning such a matter no person could have a right to rely, or to regulate his action in relation to any subject in which his interest was involved, as upon a fixed, certain and definite state of things permanent in its nature and not liable to change. A person cannot be hound by any rule of morality or good faith, not to change his intention, nor can he be precluded from showing such change merely because he has previously represented that his intentions were once different from those which he eventually executed. The doctrine of estoppel or exclusion of evidence on the ground that it is contrary

to a previous statement of a party, does not apply to such a representation. The reason on which the doctrine rests is, that it would operate as a fraud if a party was allowed to aver and prove a fact to be contrary to that which he had previously stated to another for the purpose of inducing him to act and to alter his condition, to his prejudice on the faith of such previous statement. But the reason wholly fails when the representation relates only to a present intention or purpose of a party, because, being in its nature uncertain and liable to change, it could not properly form a basis or inducement upon which a party could reasonably adopt any final and permanent course of action."3 2 It has also been held, that a stepfather is not precluded from charging for the maintenance of his stepchildren, because he said he did not intend to make any charge; 33 and where one said he did not calculate to make a certain person any trouble about his claim to certain land, he was not precluded from enforcing his claim against the one to whom the statement was made, when the latter has no reason for his inquiry. Likewise a promise to file a claim in a certain suit under a water craft act so that the promisee will get a title freed from it, has been held not to prevent the promisor asserting it against the property in the hand of the promisee. 3 5

34

The English courts have not been behind our own in adhering to these rules and have declared that estoppel by representation does not apply to expressions de futuro, or to matters of intention. 36 Lord Selborne said: "I have always considered it to have been decided that the doctrine of estoppel by representations is applicable only to representations as to some state of facts, alleged to be at the time actually in existence, and not to promises de futuro, which if binding at all must be binding as contracts. 8 7

After a consideration of all these authorities we believe the rule may be confidently reasserted that the doctrine of estoppel is

32 Langdon v. Doud, 92 Mass. (10 Allen), 433 (1865). 33 Elliott v. Lewis, 3 Edw. Ch. (N. Y.) 40 (1835). 34 Keating v. Orne, 77 Pa. St. 89 (1874). 35 Roose v. McDonald, 23 Ind. 157 (1864).

36 Citizen's Bank of Louisiana v. First Nat. Bank of New Orleans, 43 L. J. Ch. 269, 22 W. R. 194; McEvoy v. Drogheda Harbor Comrs. 16 W. R. 34.

37 Maddison v. Alderson, 52 L. J. K. B. 737, 51 W. R. 820.

not called into operation by expressions of opinion, legal conclusions, or intention, either present or future.

COLIN P. CAMPBELL, LL. M. Grand Rapids, Michigan.

FAMILY NECESSARIES-LIABILITY OF WIFE FOR EXPENSES OF MEDICAL ATTENDANCE.

LEAKE v. LUCAS.

Supreme Court of Nebraska, March 4, 1903.

1. The husband while living with his wife is part of the family, and medical attendance of which he stands in need is a family necessity, within the meaning of section 1, ch. 53 of our compiled statutes.

2. Where medical attendance is furnished the husband under the circumstances mentioned in the first headnote, and while the family are residing in this state, and the family afterward remove to a sister state, a judgment against the husband in the state to which he has removed, and the return of an execution unsatisfied, is a sufficient compliance with our statute to entitle the creditor to proceed against the wife for the collection of his demand.

DUFFIE, C. The former opinion, delivered by Commissioner Barnes, of the Second Department, will be found in 91 N. W. Rep. 374, and is so full in its statement of the facts that nothing further in that respect is needed. The statute before us for construction is in the following words: "The property, real and personal, which any woman in this state may own, at the time of her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal, or mixed property, which shall come to her by descent, devise, or the gift of any person except her husband, or which she shall acquire by purchase or otherwise, shall remain her sole and separate property, notwithstanding her marriage, and shall not be subject to the disposal of her husband, or liable for his debts; provided, that all property of a married woman not exempt by law from sale on execution or attachment shall be liable for the payment of all debts contracted for necessaries furnished the family of said married woman after execution against the husband for such indebtededness has been returned unsatisfied for want of goods and chattels, lands and tenements whereon to levy and make the same." Comp. St. ch. 53, § 1.

As we understand from brief and oral argument of counsel for defendant in error, two objections are urged against the construction given to the statute in the former opinion: First, that it is erroneous in holding that it was intended to make the property of the wife liable for necessaries furnished the husband alone and for his individual use; second, that it is wrong in holding that the return of an unsatisfied execution against the husband on a judgment rendered against him by a court of a sister state is a compliance with the statutory requirement relating to proceedings to first collect from the husband. After a failure to collect from the husband, the property of a