CHAPTER XI.

PLEADING THE ESTOPPEL.

FORMERLY matters of estoppel were usually raised on the pleadings. It is however somewhat doubtful, according to the older authorities, whether it was necessary that an estoppel by record should appear on the pleadings, and whether if it did not, it was conclusive if offered in evidence. On the other hand the balance of authority seems to be in favour of the proposition that formerly an estoppel by deed ought to have been raised on the pleadings, and that an estoppel in pais need not.

An estoppel might be raised on the pleadings, either by means of a special plea, or by special (a) or general (b) demurrer. There are numerous instances of an estoppel being raised by demurrer (c). But now by the new rules (d) demurrers are abolished, and any party shall be entitled to raise by his pleading any point of law (e). And the defendant or plaintiff (as the case may

(a) Beckett v. Bradley, 14 L. J. C. P. 3.

(b) Kemp v. Goodal, 1 Salk. 277; Heath v. Vermeden, 3 Levinz. 146; Palmer v. Ekins, 2 Str. 817. (c) Bowman v. Taylor, 2 A. & E. 278; Lainson v. Tremere, 1

A. & E. 792; Hills v. Laming, 9 Excheq. 256; Armani v. Castrique, 13 M. & W. at p. 451 (per Pollock, C. B.).

(d) R. S. C. 1883; Order XXV., Rule 1.

(e) Order XXV., Rule 2.

be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as for instance, fraud, statute of limitations, release, payment, performance, facts showing illegality either by statute or common law, or statute of frauds (f). The above rules therefore seem to make it necessary, or at any rate advisable, in all cases to raise any matters that are relied upon by way of estoppel, on the pleadings. No form of a plea of estoppel is given in the forms in the Appendix to the new rules, but presumably such pleas must be as brief and concise as possible, and as nearly as possible in accordance with the forms of pleadings there given. Certain forms of pleas of estoppel are however given in the last chapter of Bigelow's work on estoppel (g) which may be found useful in some cases, if abridged in accordance with the spirit of the new rules.

As the question may occasionally arise, how far an estoppel is conclusive even if it does not appear on the pleadings, it may be useful to enter into some discussion. of the authorities on the subject of pleading the estoppel.

(f) Order XIX., Rule 15.

(g) Bigelow on Estoppel (2nd ed.), pp. 543-558. See also the forms given in Allen's forms of Pleadings (ed. 1883), pp. 197, 224, 225. And, as to the mode of faming the plea of estoppel

under the old system of pleading, see Doe v. Welsman, 2 Ex. 368; Wilkinson v. Kirby, 15 C. B. 430; General Steam Navigation Co. v. Guillou, 11 M. & W. 877; Co. Litt. 303 b (e); and Litchfield v. Ready, 5 Ex. at p. 945.

The general rule formerly was that an estoppel ought to be pleaded if there was an opportunity, and that if a party did not rely upon the estoppel in his pleading, but the matter was put in issue and went to the jury, they were not bound by the estoppel, but might find the truth notwithstanding (h). And in such a case the matter which, if pleaded, would have been conclusive, became merely evidence, which, like other evidence, is open to contradiction (i). For, says an old authority, the jurors ought not, on pain of attaint, to take notice of matters of estoppel which were given in evidence between the parties, as they are strangers to the conclusion between the parties, and are no more estopped than the judges are (k).

Thus a recital was not conclusive evidence at the trial, if the party seeking to rely upon it had not pleaded it by way of estoppel, but had joined issue (1). And a judgment for plaintiff in an action of ejectment was not

(h) Goddard's Case, Co. Rep. vol. i. p. 432, and remarks thereon in Smith's L. C. (8th ed.), vol. ii. pp. 821, 822; Palmer v. Ekins, 2 Str. 817; James v. Landon, 1 Cro. Eliz. 36; Speake v. Richards, Hob. 207; Feversham v. Emerson, 11 Ex. 385; Young v. Raincock, 7 C. B. at p. 338 ; Doe v. Huddart, 2 C. M. & R. 316; Cox v. Cannon, 4 Bing. N. C. 453; Ashpitel v. Bryan, 3 B. & S. at p. 489; Gregg v. Wells, 10 A. & E. 90; and 1 Wms. Saund. (6th ed.), 325 a, note (d).

(i) Outram v. Morewood, 3 East, 346; Kinnersley v. Orpe, 2 Dougl. 517; Wilson v. Butler, 4 Bing. N. C. 748.

(k) Pleadall v. Pleadall, Moore, 96; Lambert v. Cameret, Comb. 446; Weale v. Lower, Pollexfen, 67. But see contra, Goddard's Case, Co. Rep., vol. i. p. 432; Doe v. Huddart, 2 C. M. & R. 316; Needler v. Bishop of Winchester, Hob. 227 (AttorneyGeneral arguendo); Feversham v. Emerson, 11 Ex. 385.

(1) Bowman v. Rostron, 2 A. & E. 295.

(before the Common Law Procedure Acts) conclusive evidence of plaintiff's title in a subsequent action for mesne profits or ejectment, unless it was pleaded as an estoppel (m). So also a verdict and judgment in a former action, which if pleaded would have operated as a bar, if given in evidence under the general issue, was not conclusive, but only evidence to go to the jury (n). Again, if a sentence of court-martial was not pleaded by way of estoppel in a subsequent civil action, it was only evidence, and not conclusive evidence, of the truth of the matter adjudicated upon in the sentence (0). Further, matter relied upon by the petitioner in divorce, as an estoppel to respondent's answer, must be pleaded in the replication ( p ).

A case, however, might arise in which a record in a former action could not be pleaded as an estoppel, on account of its not being strictly a legal estoppel, and it might nevertheless be conclusive evidence to go to the jury. Thus in an action for diverting water from

(m) Doe v. Huddart, 2 C. M. & R. 316; Doe d. Strode v. Seaton, 2 C. M. & R. 728; Matthew v. Osborn, 13 C. B. 919; Doe v. Wright, 10 A. & E. 763; Litchfield v. Ready, 5 Ex. at p. 945; see, however, Aslin v. Parkin, 2 Burr. 665; i.e., unless there was no opportunity of pleading it, Armstrong v. Norton, 2 Ir. C. L. R. 96.

(n) Rawlins's Case, Co. Rep., vol. ii. p. 422, note (c); Vooght v. Winch, 2 B. & Ald. 662; but

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see contra, in the case of estoppels by record, Needler v. Bishop of Winchester, Hob. 227, and opinions of judges in Duchess of Kingston's Case, Appendix B., p. 421. However, at any rate an estoppel of quasi record ought to be pleaded; see R. v. Cambrian Ry. Co., L. R. 4 Q. B. 320.

(0) Hannaford v. Hunn, 2 C. & P. 148; Warden v. Bailey, 4 Taunt. 67.

(p) Robinson v. Robinson, L. R. 2 P. D. 75.

plaintiff's mill, the record of a former trial for a similar injury, between the same plaintiff and the same defendant and another person (not party to the present action) was produced in evidence as to the right to the water; and Lord Ellenborough said, that though the record of the judgment in the former action could not be deemed a legal estoppel (the parties being different), so as to conclude the rights of the parties, yet it was binding so far that he should think himself bound to tell the jury to consider it as conclusive as to the rights of the parties (q).

The rule that an estoppel should be pleaded, only applied where the party who omitted to plead the estoppel had an opportunity of pleading it (r). Thus, where the defendant in a judgment was tenant in tail and died, and, upon a scire facias against the heir and terre-tenants, the issue in tail was returned heir and terre-tenant and warned, and judgment was given against him by default, and the entailed lands were extended in elegit; and, upon an ejectment brought by the tenant by elegit, the deed of entail was given in evidence, and all this matter specially found; it was resolved, that because the defendant had an opportunity to have pleaded this once to the scire facias, and had not pleaded it, he was estopped to say it now: and so, a judgment that did not bind the issue in tail at first, was, by his neglect of pleading his title to the scire facias, made an unavoidable

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(4) Strutt v. Bovington, 5 Esp. citing Trevivian v. Lawrence,

(7) Per Parke, B., in Freeman v. Cooke, 2 Excheq. at p. 662,

Smith's L. C. (8th ed.), vol. ii. pp. 799-801, and Magrath v. Hardy, 4 Bing. N. C. 782.