in word as distinguished from act; and this difference is founded in the nature of the thing (z). If a man asserts as true that which he does not believe to be true, that is deceit; and this includes, as we have seen, making assertions as of his own knowledge about things of which he is consciously ignorant. If he only speaks, and purports to speak, according to his information and belief, then he speaks for his own part both honestly and truly, though his information and belief may be in themselves erroneous, and though if he had taken ordinary pains his information might have been better. If he expresses an opinion, that is his opinion for what it is worth, and others must estimate its worth for themselves. In either case, in the absence of a special duty to give correct information or a competent opinion, there is no question of wrong-doing. If the speaker has not come under any such duty, he was not bound to have any information or to frame any opinion. But where a particular duty has been assumed, it makes no difference that the speaking or writing of a form of words is an incident in the performance. If a medical practitioner miscopies a formula from a pharmacopoeia or medical treatise, and his patient is poisoned by the druggist making it up as so copied, surely that is actionable negligence, and actionable apart from any contract. Yet his intention was only to repeat what he found in the book. It is true that the prescription, even if he states it to be taken out of the book, is his prescription, and he is answerable for its being a fit one; if it be exactly copied from a current book of good repute which states it to be applicable to such cases as the one in hand, that will be evidence, but only evidence, that the advice was competent.

Again the negligent misreading of an ancient record by

a professed palæographist might well be a direct and natural cause of damage; if such a person, being employed under a contract with a solicitor, made a negligent mistake to the prejudice of the ultimate client, is it clear that the client might not have an action against him? If not, he may with impunity be negligent to the verge of fraud; for the solicitor, not being damnified, would have no cause of action, or at most a right to nominal damages on the contract. The telegraph clerk's case is more like one of these (we do not say they are precisely analogous) than the mere reporting or repetition of supposed facts. There remains, no doubt, the argument that liability must not be indefinitely extended. But no one has proposed to abolish the general rule as to remoteness of damage, of which the importance, it is submitted, is apt to be obscured by contriving hard and fast rules in order to limit the possible combinations of the elements of liability. Thus it seems that even on the American view damages could not be recovered for loss arising out of an error in a ciphered telegram, for the telegraph company would have no notice of what the natural and probable consequences of error would be (a).

Uncertainty still remaining in English doctrine. Taking together all the matters hitherto discussed in this chapter, it appears that different views and tendencies have on different occasions prevailed even in the same court, and that we are not yet in possession of a complete and consistent doctrine. Fleming's case (b) is reconcilable, but only just reconcilable, with Foulkes's case (c) and Dickson v. Reuter's Telegram Co. (d), though not directly opposed to Bowen v. Hall (e), is certainly not conceived in the same spirit.

(a) Cp. Sanders v. Stuart (1876), 1 C. P. D. 326, 45 L. J. C. P. 682.

(b) 4 Q. B. Div. 81.

(c) 5 C. P. Div. 157, 49 L. J. C. P. 361.
(d) 3 C. P. Div. 1, 47 L. J. C. P. 1.
(e) 6 Q. B. Div. 333, 50 L. J. Q. B. 305.

Character of morally innocent acts affected by extraneous contract. (c) There are likewise cases where an innocent and even a prudent person will find himself within his right, or a wrong-doer, according as there has or has not been a contract between other parties under which the property or lawful possession of goods has been transferred. If a man fraudulently acquires property in goods, or gets delivery of possession with the consent of the true owner, he has a real though a defeasible title, and at any time before the contract is avoided (be it of sale or any form of bailment) he can give an indefeasible title by delivery over to a buyer or lender for valuable consideration given in good faith (f). On the other hand a man may obtain the actual control and apparent dominion of goods not only without having acquired the property, but without any rightful transfer of possession. He may obtain possession by a mere trick, for example by pretend

(f) See the principle explained, and worked out in relation to complicated

facts, in Pease v. Gloahec, L. R. 1 P. C. 219, 35 L. J. P. C. 66.

Character of morally innocent acts affected by extraneous contract. The rule that a bona fide purchaser for a valuable consideration, from a seller who has obtained goods through fraud, is protected, is followed in numerous decisions in the United States. The equity of this rule rests in the fact that the original seller has invested his buyer with the possession and apparent ownership of the goods and must suffer from his misplaced confidence rather than the subsequent and misled innocent purchaser. Barnard v. Campbell, 65 Barb. 286; 55 N. Y. 456; 58 N. Y. 73; Jones v. Christian, 86 Va. 1017; Carme v. Rauh, 100 Md. 247; Frey v. Harrison, 29 Ill. App. 300; Globe Milling Co. v. Minneapolis Elevator Co., 44 Minn. 153; Saltus v. Everett, 20 Wend. 279; 32 Am. Dec. 541; Benedict v. Williams, 48 Hun, 123; Dows v. Rush, 28 Barb. 157; Hall v. Hinks, 21 Md. 417; Cockran v. Stewart, 21 Minn. 435; Root v. French, 13 Wend. 570; 28 Am. Dec. 428, William v. Russell, 39 Conn. 406; First Nat. Bank v. Cook Carriage Co., 70 Miss. 587; 12 So. Rep. 598; Rowley v. Bigelow, 12 Pick. 307; 23 Am. Dec. 607; A. H. Whitney Co. v. Burnham, 48 Mo. App. 340; Sword v. Young, 89 Tenn. 126; 14 S. W. Rep. 481; Id. 604; Traywick v. Keeble, 93 Ala. 498; 8 So. Rep. 573; Robinson v. Pogue, 86 Ala. 275; 5 So. Rep. 685; Frey v. Harrison, 29 Ill. App, 300; Neff v. Landis, 110 Pa. St. 204; 1 At. Rep. 177

ing to be another person with whom the other party really intends to deal (g), or the agent of that person (h). In such a case a third person, even if he has no means of knowing the actual possessor's want of title, cannot acquire a good title from him unless the sale is in market overt, or the transaction is within some special statutory protection, as that of the Factors Acts. He deals, however innocently, at his peril. In these cases there may be hardship, but there is nothing anomalous. It is not really a contract between other parties that determines whether a legal wrong has been committed or not, but the existence or non-existence of rights of property and possession - rights available against all the world - which in their turn exist or not according as there has been a contract, though perhaps vitiated by fraud as between the original parties, or a fraudulent obtaining of possession (i) without any contract. The question is purely of the distribution of real rights as affording occasion for their infringement, it may be an unconscious infringement. A man cannot be liable to A. for meddling with A.'s goods while there is an unsettled question whether the goods are A.'s or B.'s. But it cannot be a proposition in the law of torts that the goods. are A.'s or B.'s, and it can be said to be, in a qualified sense, a proposition in the law of contract only because in the common law property and the right to possession can on the one hand be transferred by contract without delivery or any other overt act, and on the other hand the legal effect of a manual delivery or consignment may depend on the presence or absence of a true consent to the apparent purpose and effect. of the act. The contract, or the absence

(g) Cundy v. Lindsay, 3 App. Ca. 459, 47 L. J. Q. B. 481.

(h) Hardman v. Booth, 1 H. & C. 803, 32 L. J. Ex. 105.

(i) It will be remembered that the essence of trespass de bonis asportatis is depriving the true owner of possession:

a thief has possession in law, though a wrongful possession, and the lawful possessor of goods cannot at common law steal them, except in the cases of "breaking bulk" and the like, where it is held that the fraudulent dealing determines the ballment.

of a contract, is only part of the incidents determining the legal situation on which the alleged tortious act operates. There are two questions, always conceivably and often practically distinct: Were the goods in question the goods of the plaintiff? Did the act complained of amount to a trespass or conversion? Both must be distinctly answered in the affirmative to make out the plaintiff's claim, and they depend on quite different principles (k). There is therefore no complication of contract and tort in these cases, but only if we may so call it a dramatic juxtaposition.

IV. Measure of Damages and other Incidents of the Remedy.

Measure of damages, &c. With regard to the measure of damages, the same principles are to a great extent applicable to cases of contract and of tort, and even rules which are generally peculiar to one branch of the law may be applied to the other in exceptional classes of cases.

The liability of a wrong-doer for his act is determined, as we have seen, by the extent to which the harm suffered by the plaintiff was a natural and probable consequence of the act. This appears to be also the true measure of liability for breach of contract; "the rule with regard to

(k) See passim in the opinions delivered in Hollins v. Fowler, L. R. 7 H. L. 757, 44 L. J. Q. B. 169.

Measure of damages. Upon this subject the American decisions seem to substantially agree with the English rule. "The value of property constitutes the measure or the element of damages, in a great variety of cases, both of tort and of contract; and where there are no such aggravations as call for or justify exemplary damages, in actions in which such damages are recoverable, the value is ascertained and adopted as the measure of compensation for being deprived of the property, the same in actions of tort and in actions upon contract. In both cases, the value is the legal and fixed measure of damages, and not discretionary with the jury." 1 Sutherland on Dam. (1st ed.) 173.

The cases illustrating the application of this rule are numerous and only a few are here cited. Brewster v. Landview, 119 Ill. 554; Bank of Montgomery v. Reese, 26 Pa. St. 143; Bailey v. M. & St. P. Ry. Co. (S.