What is termed an estoppel by negligence occurs when one who is under a legal duty, either to the person injured or to the public, to act with due care, fails to do so, and such failure is the natural and proximate cause of misleading that person to alter his position ; but to create the estoppel all these elements must concur; Bradford v. Ins. Co., 102 Fed. 48, 43 C. C. A. 310, 49 L. R. A. 530 ; Andrus v. Bradley, 102 Fed. 54 ; Central It. R. Co. of New Jersey v. McCartney, 68 N. J. L. 165, 52 Atl. 575; Brown & Co. v. Ins. Co., 42 Md. 384, 20 Am. Rep. 90 ; Nye v. Denny, 18 Ohio St. 246, 98 Am. Dec. 118 ; Tisher v. Beck with, 30 Wis. 55, 11 Am. Rep. 546 ; 1 C. P. D. 578 ; [1905] 1 K. B. 677 (where, however, payment of a stolen cheque with a forged indorsement was held good under the law of Austria where the transaction occurred though it would not have been good in Eng land).
But this doctrine does not apply between original parties, or where the defence is that, by reason of fraud, the writing, on which the estoppel is claimed, does not embrace the con tract as originally made ; Ward v. Spelts, 39
Neb. 809, 58 N. W. 426; Spelts v. Ward, 2 Neb. (Unof.) 177, 96 N. W. 56.
The phrase "estoppel by negligence" has been characterized as "an expression usual but not accurate, since negligence prevents a right of action acciuing, estoppel a right that has accrued from being set up"; 2 Beven, Negl. 1332, where, however, a chapter is de voted to the subject. So also Bigelow treats the doctrine as above stated as a recognized branch of estoppel ; Big. Est. (6th ed.) 711; and while considering it quite clear that "cas es of estoppel arising out of negligence with out a representation must be uncommon," thinks kit well settled that "negligence when naturally and directly tending to indicate in tention" is equivalent to it in creating an estoppel.
See an interesting discussion of the doc trine, with critical examination of the Eng lish cases, by John S. Ewart in 15 L. Q. R. 384.
As to whether the doctrine of estoppel has any place in criminal law, see 12 Harv. L. Rev. 56 ; 2 Bish. Cr. L. § 364 ; State v. Spauld ing, 24 Kan. 1; Moore v. State, 53 Neb. 831, 74 N. W. 316.