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obligation, that the said A. B. shall not resort to such a woman, &c. it may be averred, that A. B. junior was intended. Semb. 3 Mod. 216.
if a deed, release, &c. be inrolled upon record, the defendant may plead, that nothing passed by the deed, or, not seised at the time, &c. for these pleas are consistent with the record. i Rol. 862. 1.-35.
So, if an obligor, being warned in detinue brought for the obligation itself, pleads conditions not performed; he may afterwards plead to debt against him upon the obligation, a special non est factum. Semb. 1 Rol. 862. 1. 45. 50.
If a man purchases a charter for licence to alien his lands; he may afterwards traverse the tenure of the king. i Rol. 864. 1. 3. .
If A. demises two closes called Lane's Meadows, the lessee shall not be estopped to say, that they are arable, and not meadow. R. 2 Mod. Ca. 312.
(E 4.) Where the allegation is uncertain. So an estoppel ought to be certain to every intent. Co. L. 353. b. 303. a.
And therefore, if a thing be not directly and precisely alleged, it shall not be an estoppel. Co. L. 352. b.
As, if a defendant pleads, within age, viz. ætatis 14 et non amplius, and after judginent, brings error within seven years, and assigns error by attorney, he shall not be estopped to say that he was of full age at the time of the error assigned; for the allegation after the viz. that fuit ætatis 14 et non amplius, is not positive. R. 2 Jon. 170. (Vide Ray. 456.)
So, if a man pleads a licence or pardon of alienation, he is not thereby estopped to say, that he does not hold in capite upon another alienation : for the licence says, quæ tenentur de nobis in capite, ut dicitur, and the plea is not more positive. 4. Inst. 111.
So, if it be alleged by way of argument, or inference. Co. L. 352. b. Pol. 396. So, if it by way of recital. Co. L. 352. b. (c)
(E 5.) Or only a supposal. So, if a thing be alleged only as a supposal in a count, it shall not be an estoppel. Co. L. 352. b. Vide ante, (A 1.)
As, if in a scire facias upon a fine, the plaintiff makes himself heir by lineal descent, he may vary in his descent in a second scire facias if the first was mistaken. i Rol. 864. I. 27.
(E6.) If it is not traversable, or material. So, if the thing alleged be not traversable, or material, it shall not be an estoppel.Co. L. 352. b.
As, in debt upon an obligation alleged to be made at A.; in another action upon the same obligation, he may say that it was made at B. 1 Rol. 864. 1. 25.
(c) 1. Though a party to a deed be not concluded by a general recital, yet is he by the recital of a particular fact therein. Willes, 9. — 2. And therefore where it was recited in the condition of a bond, that the obligor had received divers sums of money for the obligee which he had not brought to an account, but acknowledged that a balance was due to the obligee; it was held that the obligor was estopped to say, that he had not received any money for the use of the obligee. Ibid. 3. As to whether a tenant is estopped by describing lands in a lease, see Str. 610.
If in error upon a judgment, 20 Car. 2. it be assigned for error, that the defendant was within age, viz. ætatis 14 annorum ; though the error was assigned 26 Car. 2. and in both cases the defendant appears by attorney, the judgment shall be reversed: for the material part of the plea is, that he was within age, and the words after the viz. 14 annorum do not conclude him to be now within age. R. Ray. 456. (Vide 2 Jon, 170.)
So, if upon a distress for rent, the tenant prays in aid, alleging that he has a lease for ten years; he is not estopped afterwards to say, that he has a lease for sixty years ; for in aide prier it is not material, for what term, if he be a lessee. Ray. 457. .
In rescous upon a distress for rent, out of a house and one acre, the plaintiff shall not be estopped, because he at another time avowed for the same rent issuing out of a house and five acres. Ray. 457. .
So, if A. claims by a deed to B. and C. and the heirs of their bodies, remainder to D., and that upon the death of C. without issue B. aliened to A. and D. entered, and issue is joined that at the entry of D. C. was. alive, and this is found by verdict; after the death of C., D. may plead that nothing passed by the deed, and shall not be estopped. Ray. 467. (E 7.) So an estoppel may be avoided where an act in pais
is done by him, who had not power to do it. So acceptance of rent, &c. by him, who then had no title, shall not be an estoppel. Co. L. 352. b.
(E 8.) If an interest passes, though not pro tanto. So, if any interest passes from the party, there shall be no estoppel : as, if A. be tenant for life, remainder to B. in fee, and A. and B. join in a lease, if the lessee brings an ejectment upon the demise of both, in the life of A. he shall not recover ; for it was only the demise of A. and the indenture shall not be an estoppel to them; for an interest passed from both. Co. L. 45. a. .
If lessee for the life of B. leases for twenty-one years, and afterwards purchases the fee, and B. dies; he shall avoid his lease for years though it was by indenture; because an interest passed by his lease for the life of B. Co. L. 47. b. Mo. 20. (4)
If A. demises to B. the herbage of his own land by indenture; B. is not estopped to say, that A. had nothing in the land: because the lease was not of the land. Co. L. 47. b. • (E 9.) If there be an estoppel against an estoppel.
So an estoppel against an estoppel sets the matter at large: as, if Aclaims common by grant, and, in another action against the same defendant, claims it by prescription, and the defendant admits it; A. who was estopped by his former claim to allege prescription, by the admissions of the defendant shall be now at liberty to do it. i Rol. 874. 1. 50.
So, if a defendant pleads joint-tenancy with B. and the plaintiff tra(d) 1. Though a demise be by indenture, yet the lessee, admitting an interest in the lessor when he executed the lease, may show that his interest has expired. 4 T.R. 682. 8 T. R. 487. 1 N. R. 158. 5 M, & S. 516. - 2. In covenant as heir, and breach assigned for want of repairs on a lease for years, a plea that the lessor was only tenant for life, with a traverse of the reversion being in him and his heirs, was held good. 2 Wils. 143.
verses that he is sole tenant; the defendant may vouch as sole tenant : for the plaintiff is estopped to gainsay it. 1 Rol. 875. 1. 5.
(E 10.) If the truth be found by verdict. So, if the jury finds the truth of the fact, the court will give judgment accordingly, without regard to the estoppel. Vide ante, (C) – Pleader, (S 5.)
And the therefore, if a lease be by indenture by A.to B. and afterwards B. brings an ejectment for lands demised against A., and upon not guilty the jury find that A. having nothing in the land demised to B. by indenture prout; there shall not be judgment for B. Dub. Sav. 99.
If by confession in a court of record, by livery sued, &c. tenant in tail be estopped to say, that he does not hold of the king; upon a diem clausit extremum the jury shall find the truth, and thereby the heir shall be relieved. 1 H. 4. 5. b.
But where an estoppel binds the estate, and converts it to an interest, the court will adjudge accordingly; as if A. leases land to B. for six years, in which he has nothing, and then purchases a lease of the same land for twenty-one years, and afterwards leases to C. for ten years, and all this is found by verdict; the court will adjudge the lease to B. good, though it was so only by conclusion.
So, if A. leases for years, having only a contingent remainder not vested, and after the contingency levies a fine to B. in fee, and the whole is found by verdict; the lease for years shall be adjudged good. R. Pol. 68.
So, if A. be disseised, and during the disseisin a common recovery is had against him as tenant, to the use of B. though the recovery was void for want of a good tenant to the præcipe, it shall be good by estoppel against A. his heirs and assigns. R. upon a special verdict. i Rol. 865. I. 15. Cro. Car. 389. i Rol. 868. 1. 35.
(F) When an estoppel determines. So an estoppel determines by cesser of the act, deed, &c. which made the estoppel; as, if a man takes a lease for years by indenture of his own land; if the lease determines, it shall be a determination of the estoppel. Co. L. 47. b.
If A. accepts a lease from B. and his wife, where the wife has nothing ; after the death of the husband, the estoppel ceases, and that she had nothing may be pleaded in bar of an action by the wife. R. Cro. El. 700. Vide ante, (C).
. Pol . be disseiseemant to to the pracipon a speci
EVESQUE. Vide CertifiCATE, (A 1. &c.) — ECCLESIASTICAL PERSONS, (C 2.)
- EsGLISE, (H 11. 13.) - IRELAND, (E) — PLEADER, (3 19.12.) Visitor, (A 8.)
EXAMINATION. Vide BANKRUPT, (D. 6, &c.) — CHANCERY, (P 1, &c.) - TRIAL,
(B 4. 5.) Examination in perpetuam rei memoriam. Vide ChancERY, (R.)
Erception in a deed. Vide Fait, (E 5, &c.)
(A 1.) What shall be a good one. An exchange is, when a man gives lands and tenements to another in exchange for other lands or tenements of an equal quantity, in estate with that given to him. Co. L. 50.
And to such exchange the word, excambium, is requisite; for it cannot be supplied by any periphrasis, or circumlocution. Co. L. 50. (a)
(a) In the case, 5 Wils. 483. 2 Blk. 436. Lofft. 401. one reason given why an act of parliament was not suffered to operate as an exchange, was the want of that word in the act. Co. Litt. 51, a. n. (2).
So an exchange may be made of things in grant; as, an advowson, rent, common, &c. Co. L. 50. a.
So, of a thing in grant, for land: as, a rent.
So a release of a rent, estovers, or a right to land, &c. shall be good in exchange for land : for there needs not any transinutation of possession. Co. L. 50. b.
So tithes, for land. Co. L. 50. b. A tenure by divine service, for a temporal seigniory. Co. L. 50. b. An exchange shall be good, though the estates are not equal in value. Lit. S. 65. (6)
So two joint-tenants may exchange their lands, for lands to them in jointure or in common. Co. L. 51. a.
An exchange of lands, both being in the same county, shall be good without deed. Co. L. 50. (c)
(A 2.) When it shall not be good. But an exchange is not good, (d) without the word, excambium. Co. L. 50. b.
So an exchange will not be good, if it be not of estates equal in their extent and duration : for, if land in tail be given in exchange for land in fee, it will be void. Lit. S. 64.
Or, an estate tail, for an estate for life. Lit. S. 65.
So, it will not be good without deed, if the land of either party lies in a different county. Co. L. 50. a.
Or, if it be made of things which lie in grant. Co. L. 60. a. (e)
So an exchange is not perfect, till it be executed by entry. Co. L. 50.
And therefore, if one of the parties dies before entry, the exchange shall be void; for the heir cannot enter. Co. L. 50. b.
Vide more concerning exchange, in Chancery, (3 H.) — Enfant, B 3,) Bill of erchange. Vide ACTION UPON THE CASE upon Assumpsit,
(A 2.) — MERCHANT, F. 4. &c.
(6) Vide Lofft, 416. 2 Blk. 936. 3 Wils. 483. (c) Vide the st. 29 Car. 2. 3.
(d) 1. An exchange in the strict legal sense of the word cannot be between three, the principles of it not being applicable to more than two distinct contracting parties, for want of the mutuality and reciprocity on which its operation so entirely depends. For, 1o. The consideration of an exchange and of the implied warranty incident to it, is the receiving something with warranty from the same person, to whom something with warranty is given; but if there could be three distinct parties, each would give to one and receive from another. 2o. The implied condition of re-entry is, that re-entry may be made on him whose title fails; but if there could be three parties to an exchange, then each person would be liable to re-entry for the fault of another's title, as well as of his own. 3 Wils. 483. 2 Blk. 936. Lofft. 401. Co. Litt. 50 a. n.(1). (c) Vide the st. 29 Car, 2. 3.