Page images
PDF
EPUB

shall pay so much a hundred: he cannot say, that he did not carry 1200. R. Al. 52.

If a lease be by indenture; the lessee shall be estopped to say, no demise. i Leo. 156. (h)

If a lease be by husband and wife; after the death of the husband the lessee shall be estopped to say, that the wife had nothing. R. 1 Rol. 872. 1. 45.

So a man may be estopped by any indenture, or deed poll. Co. L. 352. a.

By an acquittance or defeazance by indenture or deed poll. Co. L. 352. a.

But, if the condition of a bond contains (i) a generality to be done, the party shall not be estopped to say, that there was not any such thing; as, if a condition of a bond be to perform all agreements set down by A.; the obligor may say, that no agreement was set down by A.: for the condition is general. R. 1 Rol. 872. 1. 25.

If a condition be, to carry away all the marle in such a close; he may say, that there was no marle there. R. 1 Rol. 872. 1. 35.

So, if it be, to release all his right in B.; he may say, that he has not any right there. Per Tanfd. i Rol. 872. I. 37. Vide supra.

So a deed poll does not estop a lessee, grantee, &c. for it is the deed of the lessor, grantor, &c. only. Co. L. 363. b. (k) (A 8.) By matter in pais :- By acceptance of an estate, &c.

So a man may be estopped by matter in pais which is not in writing: as, if an husband, seised in right of his wife, enfeoffs A. who afterwards demises to the husband and wife for life; though the wife be in her remitter, and A. has not any reversion, yet in waste against the husband and wife, the husband is estopped to show such reinitter, against his feoffment and acceptance of an estate from A. though it was not in writing. Lit. S. 666. 667.

So, if a wife brings dower, and recovers, she shall be estopped afterwards to claim land settled upon her for her jointure.

Though she had entered clandestinely into the land settled for her jointure, before the writ of dower brought. i Rol. 862. 1. 20. 25. 4 Co. 5.

So a man may be estopped by acceptance of rent. Co. L. 352. a. (1)

So,

(1) Vide infra, (A 3.)

°) There can be no estoppel where the state of the fact is detailed in the indenture. 4 Taunt. 23.

(k) Father, under covenant for an equal division at his death of all the property he should die seised or possessed of between his two daughters or their families, though he retains the power of free disposition by act in his life, he cannot defeat the covenant by a disposition in effect testamentary, as by reserving to himself an interest for life. 19 Ves. 67.

(1) 1. A tenant is not permitted to controvert the title of the person under whom he came into possession. 2 Blk. 1259. i T. R. 760, n. 3 T.R. 14. 6 T. R. 62. 2. Or, where there are more persons than one, the title of any of them. 1 B. Moore, 589. — 3. And it seems, that though a lease do not enure by estoppel, yet the tenant cannot dispute his landlord's title in an action of covenant. 3 T. R. 14. — 4. A plea, that the lessor at the time of demising had only an equitable estate in the premises, is equivalent to nil habuit in tenementis. 8 T. R. 487. — 5. A lessee however, even where the demise is by indenture, may, by admitting an interest in the lessor when he executed the lease, shew that his interest bas expired. Vide infra, (E 8.) — 6. And where

the

So, by entry, or livery, &c. Co. L. 352. a. (m)

(B) Who are bound by an estoppel. An estoppel is reciprocal, (n) and binds both parties. Co. L. 352. a. (Vide Cro. El. 700.)

All parties (0) and privies are bound by an estoppel. Pol. 61. Jon. 460.

So a privy in blood, as the heir, shall be bound by an estoppel. Co. L. 352. a.

As, () if a contingent remainder be to A. in fee, who makes a lease by fine, or indenture, and then dies before the contingency happens ; his heir shall be estopped by the lease. R. Pol. 61. 66.

If the eldest son of tenant in tail levies a fine, and then his father dies, and afterwards he dies without issue; his younger brother shall be estopped by the fine : for he must derive his title as heir to him. Pol. 61.

Though there was no interest at the time of the estoppel created, but the interest accrued afterwards to the ancestor. R. Pol. 66. (9)

So, a privy in estate : as, if A. demises the manor of D. by indenture, for years, and afterwards purchases the manor, and sells it to B. The vendee shall be bound by the estoppel to say, that A. had not any thing, in the manor at the time of the lease. 1 Sal. 276.

So, if judgment be in a scire facias upon a judgment in Trinity term after nul tiel record pleaded, where in truth the judgment was in

a tenant by mistake or misrepresentation, pays rent to a person not entitled to demand it, he is not precluded by such payment from giving evidence, on a plea of non tenuit in replevin against the supposed landlord, to shew that the latter is not entitled to the rent. i Mars. 541. 6 Taunt. 202. - 7. The foregoing rules apply with equal force to the under-tenant of the original lessee ; so that if B., claiming under A., let the lands to C., and A. afterwards bring an ejectment against C., C. cannot dispute A.'s title. 7 T. R. 488.

(m) And where a man assents to an act, and derives and enjoys a title under it, he cannot impeach it. I T. R. 4.

(n) 1. Estoppels must be mutual. Gilb. Ev. 28. B. N. P. 252, 11 St. Tr. 261. C. T. Holt, 134. B. N. V. 233. — 2. If a stranger to a record might plead it as an estoppel against one a privy to it, the privy might plead it against the stranger, and thus one who had no opportunity of being heard, and who perhaps has evidence not heretofore adduced, would be bound. 4 M. & S. 475. — 3. And if A. prefers his bill against B., and B. exhibits his bill against A. and C. in relation to the same matter, and a trial at law is directed, C. cannot give in evidence the depositions in the cause between A. and B., but the trial must be entirely as of a new cause. Hard. 472.

(0) 1. In considering the effect of verdicts and judgments, courts of justice will always take notice of the real parties to the suit. Phill. Ev. 316. - 2. In an action of ejectment, the lessor of the plaintiff and the tenant in possession, are judicially considered the real parties. 2 Burr. 668. - 3. For the same reason, in an action for a penalty incurred by destroying fish in the plaintiff's fishery, a verdict for the plaintiff in a former action, for a trespass committed in the same fishery, against one who justified as servant, was allowed to be evidence against the defendant. At the trial of the cause, this was admitted, after argument, as conclusive evidence of the plaintiff's right of fishery; as it appeared that the defendant in the second suit acted by the command of the same person, under whom the defendant in the first action had justified, and who was considered by the judge to be the true party in both causes. And the court of K B., afterwards, on a motion for a new trial, considered the evidence admissible, though not conclusive. 2 Dougl. 517. Vide 3 East, 366. Phill. Evid. 317.

(p) If an ancestor has obtained a verdict, the heir may give it in evidence, as privy to it. 3 Mod. 142.

(9) If a man demises by indenture lands in which he has no interest, and afterwards buys them, he will be estopped from saying that he had no interest in them when he bought them. i Ld. Raym. 729. Vol. IV.

Michaelmas

Michaelmas term; the party to the judgment, and all who claim under him, shall be bound by this estoppel. Ř. 1 Sal. 276.(r)

So, a privy in law : as, the lord by escheat. Co. L. 352. a.(s)

Every one, who claims under another by act of law, or in the post. Co. L. 352. b.

Tenant in dower, or, by the curtesy. Pol. 61. Co. L. 352. a. (t)

So, where the title of the plaintiff is made by estoppel, the court and jury are bound by it: as, if the plaintiff in ejectment makes title by a judgment in a scire facias upon a judgment in Trinity term where it was in Michaelmas term; the jury cannot find that the original judgment was in Michaelmas term. R. 1 Sal. 277.

So, if a woman sues, or be sued, as sole, and judgment is against her as such, though she was covert; she shall be estopped, and the sheriff shall take advantage of the estoppel. 1 Sal. 310. R. 1 Rol. 869. 1. 50. Vide post, (D).

If an executor or administrator admits assets, though he has them not; the sheriff may return a devastavit. R. 1 Sal. 310.

(C) Who not. But, generally, (u) a stranger (2) shall not be bound by, nor take advantage of, an estoppel. (y) Co. L. 352. a. (a)

So

(r) 1. If several estates in remainder be limited in a deed, and one of the parties in remainder obtain a verdict in an action brought against him for part of the lands, that verdict may be given in evidence by another person in remainder, in an action brought against him for the same land, although he does not claim any estate under the first remainder-man; because they all claim under the same deed. i Ld. Raym, 730. This Dig. Evidence, (A 5.) B. N. P. 232. Phill. Evid. 317.-- 2. So a verdict for or against a lessee is evidence for or against the reversioner. Hardw. 472. This Dig. Evidence, (A 5.) B. N. P. 232. Gilb. Evid. 35. 36. 2 Gwill. 632. Phill. Evid, ibid.

(s) In the same manner, persons standing in either of these relations will be bound, equally with the parties themselves, by a judgment in a former action for the same matter, if pleaded in bar. Phill. Evid. 317.

(t) 1. A verdict on a question of tithes, between a vicar and an occupier of land in the parish, is evidence between him and another occupier, the vicar in both suits claiming the same general right to tithes, 3 Gwill. 1237, et vide ibid. 1239. 2 Gwill. 701. Phill. Evid. 318. — 2. And a decree in the court of exchequer, in a cause between the vicar on one side and the impropriator on the other (establishing the vicar's title to small tithes under an ancient endowment against the defendant, who insisted that he was only entitled to an annual payment in lieu of tithes) is evidence in suits between succeeding vicars and patrons; but not conclusive evidence, as it would be, if the ordinary had been a party to the first suit. 3 Gwill. 1261. Phill. Evid. 318.

- 3. So a judgment for or against the schoolmaster of an hospital, concerning the rights of his office, has been admitted to be evidence for or against his successor. Skin. 15. Phill. Evid. 318. — 4. And so, where on an information in the nature of a quo warranto against the defendant, for acting as bailiff of a corporation, the defendant pleaded that he had been duly elected under a nomination by two persons who were bailiffs of the corporation, and the point in issue was, whether they were bailiffs at the time of the election, the record of a judgment of ouster in a quo warranto against them, was adjudged to be good evidence against the defendant, who claimed under them. Andr. 388. 2 Str. 1109. B. N. P. 231. 2 S. N. P. 1047. i Burr. 2601. Phill, Evid. 318.

(u) See the exceptions to the rule in title Testmoigne.
(2) One not suing or sued in the same quality or character, is a stranger.

(y) In the instance of a verdict, the reason, says Mr. Phillips, (Evid. 320.) why it is not evidence against a person, who was neither a party to the former suit, nor claims under one of the parties, is because he had no opportunity of calling witnesses, or cross-examining those on the other side, nor of appealing against the judgment. And the reason, why the verdict would not be evidence for a stranger, even against a party who was engaged in the former suit, seems to be, because if he had been party to that So a woman shall not be estopped, after coverture, by an admission upon record by her husband and her, during coverture.

As, if husband and wife admit B. to be a mulier; in another action by B. after the death of the husband, the wife may plead, that he is a bastard. i Rol. 865. 1. 10.

If husband and wife plead a feoffinent; the wife, after the death of her husband, may say, that nothing passed by the feoffment. 1 Rol. 865. 1. 5.

If husband and wife make a lease, where the wife has nothing; after coverture, she shall not claim by estoppel. Cro. El. 700. Vide post, (F).

So an heir, who claims as heir of his father, shall not be estopped by an estoppel upon him as heir to his mother : as, if a woman, who had an estate for life, recovers in a cui in vitâ against the donee of her husband, supposing that she had a fee, and afterwards makes a feoffment, and dies, and the donee dies without issue; the heir of the father shall recover against the feoffee of the mother, though heir also to her, and shall not be estopped by the record of the judgment in the cui in vita, which affirmed the mother to have a fee. Co. L. 365. b. (6)

So, if a son be estopped by his pleading upon record, and dies, his uncle and heir shall be bound; but if he dies, and the land descends to the father, he shall not be bound by the estoppel of his son; for he cannot be heir to him. Co. L. 12. a.

So, if the heir does not claim the land from him who made the estoppel, but by his own purchase, or by another ancestor, he shall not be bound by the estoppel. Jon. 460.

Though he derives his blood from the party to the estoppel. Jon. 460, 461.

So, if the plaintiff does not rely upon the estoppel, the court and jury shall not be bound by it; but the jury may find the matter at large, and the court shall give judgment accordingly; as, in debt for rent upon a lease by indenture, if the defendant pleads nil habuit in tenementis, and the plaintiff replies, quod habuit. i Sal. 277. Vide Pleader, (S 5.)

cho shall take advantage of an estoppel. Every one, who claims under an estoppel shall take advantage of the estoppel: as, a woman, who claims a dower, shall take advantage of an estoppel by deed between her husband and his tenant. 1 Rol. 868. 1. 47. suit instead of the person who gained the verdict, the result might have been different; for as the parties would in that case have been constituted differently, the evidence might have varied; part of the evidence might then have appeared inadmissible, or of a doubtful character, or perhaps other evidence might have been produced by the party who lost the verdict. Under such circumstances to admit a verdict as evidence, would be giving a party indirectly the benefit of testimony, which he might be precluded from availing himself of directly in his own suit. But this reason, it is evident, only applies where the verdict is offered in evidence by a third person, against the party who failed in the former action, and not where it is produced against the party who succeeded.

(@) If, therefore, B. plead that the contract upon which A. is suing him was made by C. as well, and it be found against him, C. cannot plead this finding as an estoppel when sued by B. for contribution as co-contractor 4 M. & S. 475.

(6) 1. So a party suing as executor, in an action of debt upon a bond, will not be estopped by having been barred in an action upon the same bond, when he sued as administrator ; but he may shew, that the letters of administration have been since repealed. 5 Rep. 32. b. 2. So an acquittal of a person as accessary, cannot be pleaded by him in bar, on a charge against him as principal; for the quality and nature of the offences are quite different. 2 Hal. P. C, 244, Fost. Disc. 136.

If A. demises by indenture to B. for life, and afterwards by fine grants the reversion; the conusee shall estop B. in a quid juris clamat, to say that A. had nothing. 1 Rol. 868. I. 50. . If a man recovers a rent-charge against B. out of his land, who afterwards sells the land to another; the vendee shall be estopped by the recovery, and the recoveror shall take advantage of it. I Rol. 868. l. ult.

So an officer, in the execution of process, shall take advantage of an estoppel upon record in the same action : as, if a feme covert be sued as . If a man be sued as a knight and baronet, though he be not a baronet, a feme sole ; the sheriff shall take her in execution, though she be the wife of another, and hath another name. R. 1 Rol. 869. 1. 50. Vide ante, (B.) and the sheriff takes him in execution; he shall not have an action against the sheriff. R. 1 Rol. 869. 1. 45.

So the king shall take advantage of an estoppel, though he be not party to the record; for he is always present in the court. 2 Inst. 39.

So, every person shall take advantage of a disability, which appears .by record; as, outlawry, excommunication, attainder, &c. though a stranger to the record. Co. L. 352. b. 128. b.

So, of bastardy, mulierty, certified, &c. Co. L. 352. b.

But a stranger shall not take advantage of the misnosmer of any one upon record; for he is not bound by it. Co. L. 352. b.

So a stranger shall not have advantage of villenage confessed, or found; but the lord only. Co. L. 128. b.

(E) What shall not be an estoppel.

(E 1.) A record corum non judice. But a man shall not be estopped by a record, which was coram non judice : as, by a record of an action in the Marshalsea, where neither party was of the king's household. i Rol. 863. 1. 50. Nor, by the record of formedon sued in B. B. i Rol. 863. l. ult.

(E 2.) Where the truth appears by the same record. So a man shall not be estopped, where the truth appears by the same record. Co. L. 352. b.

As, if a fine be levied, or concord made upon an original upon which a retraxit is entered; though the parties are estopped to say, when the fine is pleaded, that it was not upon an original (for it shall be intended well levied, till reversed by error), yet, if by the same record it appears that a retraxit was entered upon the original, then the parties are not estopped to say it; for it appears by the record itself. Co. L. 352. b.

If an impropriation be to a bishop of a rectory after the death of the incumbent; and by indenture, showing that matter, the bishop demises the rectory for years in the life of the incumbent, and the lease is confirmed by the dean and chapter; the bishop is not estopped by the indenture of demise: for it appears by the same deed that he ihen had nothing in the rectory. Co. L. 352. b.

(E 3.) Where the thing is consistent with the record So a man shall not be estopped to aver a thing consistent with the record, writing, &c. as, if A. B. senior and A. B. junior are bound by an

obligation,

« PreviousContinue »